' Land measuring 8 Kanals 160/2636 share of land measuring 131 Kanals 16 Marlas situated in the Revenue Estate Khudian, Tehsil and District Kasur, was alienated by Muhammad Shari its owner to Noor Muhammad son of Sardara through a Registered Sale-Deed dated 15-9-1980, for an ostensible sale consideration of Rs. 15,000 Nazar son of Nathan, a real brother of the vendor,pre- empted the sale through a suit. Defendant-vendee filed a written statement. Apart from certain preliminary objections, averments on merits were also controverted. On 19-9-1981, learned trial Judge framed the following issues which arose out of the pleadings of the parties:- [URDU TEXT]
2. Parties produced their evidence. Plaintiff supported his case by appearing as P.W.1.Copy of Register Haqdaran Zamin Exh. P.1, sale-deed Exh.P.2, extract from Crops Inspection Register Exh. P.3, Pedigree table Exh.P.4, were also produced in evidence by the plaintiff. Defendant-vendee produced two witnesses apart from his own statement. Plaintiff's suit was dismissed by learned Civil Judge, Kasur, vide his judgment and decree dated 16-6-83.Superior right of pre-emption was found to exist in favour of the plaintiff. Under issues Nos. 5 and 6 it was found that sale price amounting to Rs. 15,000 was fixed in good faith and actually paid to the vendor. These two issues, therefore, were found in favour of the vendee. Issues Nos.1 and 3 relating to estoppel/waiver and collusion were answered against the plaintiff. As a result of findings on issues Nos.1 and 3,the trial Court as noted above, dismissed the claim of the plaintiff. Plaintiff appealed. Learned Additional District Judge, Kasur, vide his appellate judgment and decree dated 22-7-1984,has reversed findings recorded on issues Nos.1 and 3 by the trial Court and holding neither estoppel nor collusion proved, decreed the plaintiff's suit in respect of the land alienated in favour of the vendee. Learned Additional District Judge observed:- "The upshot of my above discussion is that the appeal is accepted. The findings on issues Nos.1 and 3 are reversed with the conse quence that the suit filed by the appellant/plaintiff is decreed with cost throughout. The counsel fee is fixed at Rs.3,000.The appellant is directed to deposit the sale price on or before 22-8-84 after deducting the amount of Zar-e-panjum if already deposited otherwise his suit shall stand dismissed."
' Appellate judgment has been assailed in revisional jurisdiction by the aggrieved vendee. The Civil Revision was admitted on 9-8-1984 to examine the points raised. It has come up, for hearing, before me today in the presence of learned counsel for the parties.
3. I have heard learned counsel for the parties and examined the trial Court's record which was also requisitioned to evaluate the points raised. Sardar Atta Ullah, Advocate, learned counsel for the petitioner has contended firstly that the impugned appellate judgment and decree passed by learned Additional District Judge, did not conform to the mandatory requirements of Order XX, rule 14 of the Code of Civil Procedure, inasmuch as the learned appellate Judge while decreeing the plaintiff's suit for pre-emption has neither determined nor specified the amount subject to which the claim was being decreed. Trial Court had found whole of consideration mentioned in the sale- deed to have been fixed in good faith, and paid to the vendor. This finding was assailed by the pre- emptor in appeal. At no stage, in the appellate proceedings, plaintiff made a statement expressed or implied abandoning his attack directed against the findings recorded on issues Nos.5 and 6. In this view of the matter, it was the duty of the learned appellate judge, to determine the sale price and thereafter, incorporate the necessary direction in the judgment and decree. In the absence of such a direction, the judgment and decree passed on appeal was faulty and defective both in form and merit. Secondly it was contended that the trial Court had thoroughly examined, oral evidence produced by the vendee, in support of the plea of estoppel/waiver and collusion and then come to a considered conclusion that both were proved. Learned Additional District Judge without attaching any weight to the opinion of the trial Court on the question of credibility and reliability of the witnesses produced before it has reversed the findings on an improper and erroneous appreciation of the record. It was contended that evidence on record fully substantiated the plaintiff's presence and participation in the sale transaction. Such being the case, the findings recorded by learned appellate judge in variance, are not sustainable.
4. Mr. Jehangir Akhtar,Advocate who represented the plaintiff/ respondent, stressed that though the judgment and decree passed on appeal did not strictly confrom to the requirements of rule of law as contained in Order XX, rule 14, C.P.C, yet the plaintiff/decree-holder had deposited the entire sale consideration money in Court. It was further submitted that the plaintiff-pre-emptor though in the first instance challenged findings on issues Nos.5 and 6 also, on appeal, yet did not press them at the hearing. It is because of this, presumably that the learned appellate judge has not adverted to the findings on issues Nos.5 and 6 and made no consequential direction for deposit of the exact amount. If the appellate judgment and decree is found to be defective on this score, the necessary amendment and alteration can be made therein by this Court also in exercise of its revisional jurisdiction. The proposed alteration will not cause any material prejudice to the ven dee. Full sale price has already been deposited to his credit within the time fixed by the learned appellate Judge.
As regards the plea of estoppel and collusion, learned counsel submitted that the bare oral statements of two witnesses supported by self-serving statement of vendee when placed against the denial of the plaintiff on oath, was not sufficient to deprive the plaintiff pre-emptor of his valuable right to acquire the land in exercise of his right of substitution. The evidence produced was a usual type which can easily be procured. On such an evidence, it cannot be held that the plaintiff was a party or privy to the sale transaction or that he had participated therein clearly indicating his intention of relinquishing his right to pre-empt the sale of land by his real brother.
5. As regards estoppel, two witnesses were produced by the defendant-vendee, who stated on oath about the presence of the plaintiff at the time of sale. This evidence has been examined by learned Additional District Judge in his appellate jurisdiction and has been found to be unsatisfactory to sustain a finding of estoppel against the pre-emptor. The evidence recorded by trial Court has been read out in Court and examined by me also. I am not satisfied with the quality of evidence produced. The vendee has not successfully established his plea of either waiver or estoppel. To deprive a person of a legal right that he possesses including a right of prior purchase which is a very valuable right statutorily recognized, there must be clear and cogent evidence on the record justifying that course and mere oral statements of a few witnesses deposing to certain circumstances from which it may be possible to infer that the plaintiff pre-emptor had knowledge of the sale or was present at the time of sale would not be enough to prove that he has positively relinquished the enforcement of his right. Such type of evidence in the background of our own society can easily be procured and produced. Same observations would equally apply to collusion.
Plaintiff, when appeared in the witness-box, stated that he is exercising right of pre-emption in his own right and for his own benefit. He has neither been put up nor instigated by any other person.
There can be no dispute with the proposition that the right of pre-emption being a personal privilege cannot be transferred and it can be exercised only by the person in whom the right vests.
The plea of collusion like the one raised in revision is easy to make and unless it is established by unimpeachable and uncontrovertible evidence it cannot be found t be a good ground for rejection of the claim for pre-emption. To defeat the plaintiff on the ground of collusion, vendee was required to strictly prove and establish that the object of filing the suit was really t secure land for Imam Din and not for the plaintiff himself. The evident produced by the vendee in the case under consideration does not inspire confidence to reach a positive conclusion on the ground of estoppel and collusion in his favour. Learned Additional District Judge, therefore, rightly interfered and reversed the recorded findings on issues Nos.1 and 3. Right to pre-empt the sale was no longer in dispute. It is correct that the trial Court under issues Nos. 5 and 6 had found the price mentioned in the sale-deed to have been fixed in good faith and paid to the vendor. This finding alongwith findings on issues Nos.1 and 3 was challenged by plaintiff in appeal before learned Additional District Judge, Kasur. There is no material available on record to show that the plaintiff had abandoned this objection and admitted the correctness of the sale price. In this background,the Court was bound Ito determine the exact amount of sale price subject to which the suit for pre- emption was to be decreed. Plaintiff/respondent, however, as noted above, has already deposited the total sale consideration in Treasury well within time fixed by the appellate Court. This act of the plaintiff/pre-emptor was not warranted by anything contained in the judgment and decree of the appellate Court. Order XX, rule 14 provides a form for a decree to be passed in a pre-emption suit. It reads:- "14- Decree in pre-emption suit.--(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall
(a) specify a day on or before which the purchase money shall be so paid, and
(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the Court has adjudicated upon rival claims to pre-emption, the decree shall direct,
(a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would but for such default, have taken effect; and
(b) if in so far as the claims decreed are different in degree that the claim of the inferior pre- emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
' When judgment and decree dated 22-7-1984, is judged in the light of the provisions of Order XX, rule 14, C.P.C. noted above, it is found lacking in mandatory particulars. Revision petition is allowed.
Findings recorded by the learned appellate Court on issues Nos.1 and 3 are not disturbed and are kept maintained. The case is remanded to learned appellate Judge for passing a proper judgment in the light of the provisions of Order XX, rule 14, C.P.C. after determining the sale price subject to which the plaintiff's suit is to be decreed. Parties are directed to appear before learned Additional District Judge on 17-11-1984 for further proceedings. Requisitioned records alongwith the copy of the judgment passed in the Civil Revision be sent to the Court of learned Additional District Judge, Kasur without least delay. No order as to costs.