1. Muhammad Hussain son of Ghulam sold property consisting of 54 Kanals 7 Marlas, 7609/116568 share of land measuring 837 Kanals 14 Manias. Khata No. 111, land measuring 13 Marlas 7/96th share of land measuring 8 Kanals 14 Marlas of Khata No. 116 along with its corresponding share of Shamlat to Fazal Ahmad, Hameed Ahmad sons of Nazir Ahmad and Amir (deceased) represented by Sardar his sorr, for Rs.60,000. Ii was an oral transaction reported to Patwari, on which sale mutation No. 896 was sanctioned on 26-8-1974 by the Revenue Officer. Karan Dad, Maula Dad, Allah Dad sons of Lal and Muhammad Mansha son o1 Mahar Dad, as heirs, co-sharers and owners of the estate pre-empter the sale and brought a civil suit for pre-emption against the vendee: in the Court of Civil Judge, Hafizabad. Suit was contested. It was pleaded in defence that description of the property was not correct given; that the suit was barred by limitation; that defendants 1 and ' were in cultivating possession of suit property as its tenants, while defendant No. 3 was a collateral in the nearer degree; that the plaintiff were estopped to bring the pre-emption suit. On merits, it was pleaded that suit property was purchased for Rs.60,000 and same was its market value.
2. During the course of proceedings, it transpired that in the result of consolidation, suit property was amalgamated with other land of the vendees. Pre-emptors, therefore, applied for leave to amend the plaint and correct the description. Amendment was allowed by the Court and amended plaint was put in. On the pleadings of the parties Court raised following issues:- (1)Whether the plaintiffs have got superior right of pre-emption qua the vendee/ defendants over the suit land? O.P.P.
3. (2)Whether the description of the suit property is incorrect and as such the suit is liable for rejection? O.P.D.
4. (3)Whether the suit is barred by time? O..P.. D,.
5. (4)Whether the plaintiffs are estopped to file their suit by their own conduct and words? O.P.D. , (5)Whether the sale price of Rs.60,000 was fixed in good faith or actually paid? O . P . D .
6. (5-A) What was the market value of the suit land at the time of sale? O. P. P.
7. (5-B) What proportionate share comes against the suit land after the consolidation of holdings? O .
8. P . P .
9. (5-C) Whether the defendants Nos. 1 and 2 were tenants over the suit land at the time of sale? If so, its effect? O.P.D.
10. (5-D) Whether the amended plaint has not been thumb-marked by the plaintiffs? If so, its effect?
11. (5-E)Whether the plaintiffs had intentionally under valued the suit for the purposes of Court-fee and jurisdiction? If so, its effect? O.P.D.
12. (6)Whether the suit is incorrectly valued for the purposes of Court-fee and jurisdiction, if so, its effect? O. P . D .
13. (7)Relief.
14. Both the parties recorded their oral evidence and produced some documents also in their support.
15. On 15-10-1979, learned Civil Judge, Hafizabad decreed the suit in favour of the plaintiffs subject to payment of Rs.60,000 as its sale price to be deposited in Court before 15-11-1979, failing which it was observed that the suit shall stand dismissed with costs. Matter was taken in appeal by the vendees. Appeal was dismissed on 7-3-1984 by learned Additional District Judge, Gujranwala.
16. Against the judgments of the Courts below, vendees have come up in revision.
17. Mr. C . A . Rehman, Advocate for petitioners in support of the civil revision raised following points:-
(1) Since the suit property was comprised in the joint tenancy of Fazal Ahmad and Hameed Ahmad, jurisdiction of the civil Court to entertain and decide the pre-emption suit was barred under para. 25(5) of the Land Reforms Regulation 115 of 1972; (2) while Fazal Ahmad, Hameed Ahmad occupied suit property as its tenants at the time of sale and Sardar son of Ameer was a collateral in the nearer degree, doctrine of sinker could not be applied against the vendees; (3) During course of civil suit, suit property was consolidated and the share of Sardar Ahmad was separated from Fazal Ahmad and Hameed Ahmed, vendees, therefore, pre-emption suit could not be decreed. Ch. Muhammad Hassan, Advocate supported the impugned judgments and submitted that on the evidence led, it could not be proved that Fazal Ahmad and Hameed Ahmad ever occupied the suit property as Its tenants paying rent to its owner. As regards consolidation, counsel referred to decision of this Court in Qaim Din v. Said Ahmad and another PLD 1967 Lah. 1171 to submit that right of pre-emption was not lost merely because consolidation proceedings had taken place in the village. As regards application of doctrine of sinker, it was submitted that, though, defendant No. 3 namely Sardar son of Ameer was collateral nearer in degree to the vendor as compared to the pre-emptors, yet he, by purchasing the suit property in association with Fazal Ahmad and Hameed Ahmad who were strangers, had lost his own right of pre-emption also. It was also submitted that Civil Court had jurisdiction to entertain, hear and decide a pre-emption suit in which tenancy rights were pleaded in defence only.
18. First material point which arises for consideration in the revision is whether defendants 1 and 2 were tenants of the suit property. To support the plea of tenancy, Fazal Ahmad (D.W. 2) appeared and deposed that he along with one Muhammad son of Hassan cultivated property comprised in Khasra Nos. 1488, 1489 as its tenants. There is no reference to the cultivation of Hameed Ahmad in his statement. Copies of Khasra Girdawari Exhs.D.2 and D.3 were relied upon to show that Khasra Nos. 1488, 1489 (17K-7M) were cultivated by Hameed Ahmad and Fazal Ahmad. A close look at these two documents would show that prior to Rabi 1974 these Khesra numbers were recorded in possession of one Muhammad Hussain, as co-sharer. Abruptly in 1974, Muhammad son of Hassan was shown as Mazare Tabey Marzi Doem, while Hameed Ahmad and Fazal Ahmad were shown as non-occupancy tenants Ghair Mauroosi Awal. Apart from this solitary entry in Khasra Girdawari, defendants had failed to produce copy of the daily Diary to support the aforenoted change. As against this evidence, Karam Dad one of the pre-emptors along with Muhammad Hussain vendor, appeared to contradict and deny that defendants 1 and 2 were ever tenants of the suit property. In these circumstances, the defendants on whom lay the onus of proof, had failed to discharge the burden and prove tenancy rights in the property. In my judgment, learned Judges of the Courts below were not erroneous in holding that defendants 1 and 2 were not tenants of the suit property.
19. On the basis of evidence adduced, it could be safely inferred that entry in Khasra Girdawari showing defendants 1 and 2 as Ghair Mauroosi Awal was clearly manipulated to support defence, based on tenancy rights. Additionally, it may be noted that Hameed Ahmad, defendant never appeared in Court to support that he was also a tenant along with his brother Fazal Ahrhad. It wasl not in dispute that Ameer, as compared to the pre-emptors, was a' nearer degree collateral. What was submitted was that since the transaction of sale was joint and indivisible, Ameer had also lost his right and could not defend the suit even to the extent of his own share. Policy of the Pre- emption Act is to keep out strangers and thus maintain the exclusiveness of the estate. Therefore, if a purchaser having an equal or superior right of pre-emption associates with himself in a transaction that is joint and indivisible, a stranger or a person with rights inferior to those of the pre-emptor, he is not entitled to resist the claim of such a pre-emptor to enforce his rights even as to his share of the purchase. This proposition of law is otherwise well-settled by long line of judicial precedents, and was no longer open to doubt. Supreme Court in Allah Ditta v. Muhammad All PLD 1972 SC 59 when considering the analogy between a pre-emptor as purchaser joining a stranger with him in the purchase and pre-emptor as plaintiff joining with him a stranger as co-plaintiff observed "In the first. Case, the pre-emptor purchases in violation of the rules regulating pre- emption, and his act is incapable of being undone. In the second, the error is in the form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre-emption, or of justice, equity and good conscience; in the later, it is a question of the law of procedure in enforcing by suit a right of pre- emption. It may be quite just to say to pre-emptor, you alone had a preferential right to purchase, but, you and a stranger together had not; and yet quite unjust to say to him, you have a preferential right of p)re-emption to sue the defendant, but you have forfeited it by the erroneous belief that your co-plaintiff had an equal right." There is no dispute that transaction in this case was joint and indivisible. Therefore, defendant No. 3 when he purchased suit property in association with defendants 1 and 2 who were not possessed of any right of pre-emption, was himself relegated to the C position of a stranger and was not even entitled to defend his own share of purchase.
20. Doctrine of sinker on facts found, clearly applied and the Courts below were not wrong if they held so. Effects of consolidation on the rights of the pre-emptor have been examined in Qaim Din v. Said Ahmad and another and it has been observed that right of the pre-emption was not lost merely because consolidation proceedings had taken place in the village. It was found that the pre- emptor in a case like this, where it was established as to which land the vendee had got in lieu of his own could follow the new land in the hands of the vendee. To the similar effect is the decision of this Court in Rashida Begum and another v. Ghulam Farid Shah and another PLD 1973 Lah. 637.
21. Therefore, pre-emptors who undoubtedly retained their superior qualifications till the date of decree were clearly entitled to the land which the vendees had got in the result of consolidation in the village. Courts below had taken pains to identify the land which the vendees had obtained in consolidation operations and in the result decreed the suit for the lands established to have been obtained by the vendees. Mr. C.A. Rehman could not successfully rebut the correctness of the conclusions reached by the Courts below. Now remains the question of jurisdiction. Plaintiffs in support of their pre-emptive claim had not pleaded tenancy rights. They came to the Court as heirs, co-sharers .And owners of the estate. Tenancy rights were pleaded in defence. In such circumstances, it could not be said that the civil Courts were not possessed of jurisdiction. Similar contention was raised in Ali Ahmad v. Riasat Ali and 4 others PLD 1977 Lah. 1064 before Aftab Hussain, J., as his Lordship then was and after its examination was turned down. It was observed "clearly, therefore, it is meant by the Legislature to exclude the jurisdiction of the civil Court in relation to matters where a plaintiff comes to the Court to enforce a right of pre-emption conferred by clause (d) of sub-paragraph (3) of paragraph No. 25 on the ground of his tenancy. It has nothing to do with cases where the tenancy is pleaded only as a defence to a suit; for pre-emption and not. As measure of enforcement of that right. I, therefore, agree with the learned trial Court that the present suit is within the ambit, of the jurisdiction of the civil Court." Apart from the above clear exposition of law, the defendants had not pleaded bar of jurisdiction and had not objected to assumption of jurisdiction by the civil Court in both the Courts below and cannot be permitted to raise this issue for the first time at hearing of this revision. Learned Judges of the Courts below on a fair appreciation of evidence, oral and documentary, found that defendants 1 and 2 were not proved to be tenants of the suit property at the time of sale. This being a finding of fact, properly reached by the Courts of fact was otherwise also not open to review in revisional jurisdiction. This part of the case is, therefore, concluded by finding of fact. Plaintiffs' right to bring the suit and pre- empt the sale was not denied. No other point was urged to which reference may be made.
22. Accordingly, I would uphold the decisions of the Courts below and dismiss the petition with costs.