This Regular Second Appeal has arisen out of a suit filed by the appellant against the respondents, for possession through pre-emotion of land measuring 3 Kanals 5 Marlas situated in Dina Thikarian, Tehsil and District Jhelum. In support of his preferential right of pre-emotion, the appellant claimed to be a co-sharer in the Khata, owner of the estate and tenant of the suit land. This claim is not in controversy. However, the suit has been mainly contested on the ground that by virtue of notification dated 7-6-1976 under section 8(2) of the Punjab Pre-emotion Act, no right of pre- emotion existed in respect of the suit land. Under this notification, which has been quoted in extentio, in the judgment of the learned first appellate Court, no right of pre-emption was available for a period of two years, with respect to the sale of the agricultural land, not exceeding 12g' Acres of canal irrigated area and 50 Acres of un-irrigated area located, in- the Districts of Campbellpur, Jhelum and Rawalpindi, made in favour of a person displaced on account of construction of Mangla Dam and certified to be so displaced, by the Commissioner of Mangla Dam Affairs.
Respondent No.l is admittedly a Mangla Dam oustee, and holds, such a certificate. However, such status is not enjoyed by the other respondent.
2. Before the learned trial Court, the contest was primarily confined to the issue as to whether or not the sale could be subjected to the appellant's right of pre-emption. In this behalf, his stand was that respondent No.l joined a stranger with him, and as the transaction of the sale was indivisible, on the principle of sinker, he too was brought to the level of respondent No.2 and thus, the appellant's pre-emptory right would prevail against both the 'respondents. This argument did not find favour with the learned trial Court. In its opinion, the doctrine of sinker is attracted only when a person having a right equal to that of the pre-emptor, associates, a stranger with him in the purchase. Before the trial Court, the appellant raised another plea, that at least to the extent of the share of respondent No. 2, who was not a certified Mangla Dam oustee, the suit could be decreed.
This contention was rejected on the ground that the sale was indivisible and such a decree would contravene the notification. Further, the trial Court was also of the opinion that there being a single sale, a decree for a part of the suit land was unwarrantable. Consequently, the suit was dismissed.
The appellant, went in appeal against the judgment and decree of the trial Court. There, he did not bank upon the principle of sinker but argued that as Muhammad Iqbal respondent No.2 was not a Mangla Dam displaced person, to the extent of his share in the land, the appellant was entitled to a decree. The learned Additional District Judge who heard the appeal did not accept this argument.
He concurred with the trial Court's finding as to the indivisibility of the sale, and held that it was the appellant's obligation to have established that the sale was divisible; as it could not be split up both the vendees stood benefited by the exemption allowed under the notification. The appeal, thus, failed.
3. In support of this second appeal, the learned counsel for the appellant has again heavily relied upon the principle of sinker, to contend that as respondent No.l joined with him, respondent No.2 who did not enjoy the exemption under the notification, and the sale being indivisible, the exemption available to respondent No.l was also lost on the basis of this doctrine. To fortify his this argument, he referred to Mangta Khan and another v. Mst. Hamida Begum PLD 1981 SC 51 and submitted that this was also a case of Mangla Dam oustee, to which the High Court applied the principle of sinker, and though the Supreme Court intervened on different ground yet the view of the High Court, with regard to the application of principle of sinker remained unaffected.
4. Before proceeding further, a preliminary objection raised by the learned counsel for the respondents may be dealt with. He argued that before the learned Additional District Judge, the appellant abandoned the plea of sinker and assailed the trial Court's judgment and decree on other grounds and that, therefore, he could not now ask the Court, in second appeal, to re-consider the ground which was abandoned before the learned first appellate Court. To substantiate his this contention, the learned counsel relied on Harimurat v. Rehmat and others 63 Indian Cases 490 and Ghulam Sarwar v. Nayaz Ali 64 I C 185.
5. It is correct that the plea of sinker which was raised before the learned trial Court was not pressed at the first appellate stage and the appeal was argued on other points. There is also no gainsaying that generally a point not raised before the lower appellate Court, cannot be raised in second appeal. The two precedents relied upon by the learned counsel, lend support to this proposition. But on this issue, in Abdullah Khan v. Nisar Muhammad Khan PLD 1965 SC 690, the Supreme Court has taken the view that the points involving an inquiry into facts, or which could be met on facts, if raised in the trial Court, should not be allowed to be urged at the appellate stage unless there are strong reasons for that. However, with regard to pure questions of law, it was maintained that these can be raised at any stage. The plea of sinker, is a question of law and the necessary material to decide this point, one way or the other is already on the record. Respectfully following the dictum of the Supreme Court, I find no good reason in not allowing the learned counsel for the appellant to argue the point of sinker. The objection raised on behalf of the respondents, in this respect is discarded.
6. Reverting, now, to the merits of the case, on perusal of the trial Court's judgment and that of the High Court in Regular Second Appeal, in the case of Mangta Khan v. Hamida Begum, I find that therein, land measuring 1,731 Kanals 11 Marlas was sold in favour of Mangla Dam oustees. This area, however, fell beyond the limit prescribed in the notification granting exemption. There were 16 vendees, out of which only 11 held the requisite certificate issued by the Commissioner of Mangla Dam Affairs. In order to draw the benefit under the notification, the vendees pleaded that the sale was divisible and each one of them purchased a specified share of the land. The trial Court rejected this plea and maintained that the sale being indivisible, the transaction was not exempt from pre-emption. The High Court concurred with the trial Court as to the indivisibility of the sale and rejected the vendees' contention that the sale in favour of each one of them was an independent transaction. In this respect, an other argument which weighed with the High Court was that in case the vendor was considered to have made separate sales, the alienations would be violative of para. 25 of Martial Law Regulation 64. These findings were sufficient for dismissal of the vendees, appeal but the learned Judges entertained still another argument:---- "It has been argued that five non-exempted persons have been joined by eleven persons who allegedly hold certificates of exemption, and the transaction being a single indivisible sale, the vendees cannot defeat the superior right of pre-emptors by joining with them strangers i.e. Persons not entitled to the benefit. There is ample authority for the view that if a person joins with him a stranger and the transaction is a single indivisible sale, the pre-emptor having a superior right succeeds as against the entire transaction despite the fact that the vendee has an equal right as against the pre-emptor."
7. The Supreme Court on interpretation of the sale-deed, came to the conclusion that the essential conditions for treating the transaction as divisible were satisfied. The view taken by the High Court on the basis of pars. 25 of M.L.R. 64 was also not approved and it was held:---- "It has not been the case of the respondents that if the transaction is treated as divisible, the share of any of the vendees would exceed the limit of fifty Acres applicable to the appellants. Therefore, each one of them could in his own right defend his purchase against the suit for pre-emption provided he was a certificate-holder in accordance with the notification issued under section 8(2) of the Pre-emption Act. Neither the principle of sinker nor the bar relating to the limit of fifty Acres would deprive the appellants of this plea.
On these findings, eventually the appeal in respect of those appellants, who produced the certificates was accepted, but was disallowed with regard to those who could not bring their case within the ambit of the exemption notification.
8. It is obvious from this precedent, that in deciding the appeal, the Supreme Court, did not apply the principle of sinker. The principle is attracted to a case, where a vendee having a right of pre- emption, equal to that of the pre-emptor, joins with himself, in the transaction, a person having no right or comparatively an inferior right of pre-emption. In Mst. Fateh Bibi v. Ahmad Khan etc. PLD 1971 Lah 171 this rule has been explained as under:---- "If a purchaser, having an equal right of pre-emption, associates with himself in the purchase a person with rights inferior to those of the pre-emptor, he is not entitled to resist the claim of such pre-emptor even in respect of his own share of the purchase. The purchaser in such a case would be deemed to have sunk down to the level of his associate and therefore, would not be entitled to resist pre-emption even qua his own share."
This rule can hardly have any application to a case where the transaction is exempted from the right of pre-emption under section 8(2). The effect of the notification under this section is that the right of pre-emption, in respect of the transaction covered thereby is extinguished. In the instant case, the respondents did not claim any right of pre-emption but sought to defeat the one asserted by the appellant, on the strength of the notification. In my estimation, there is absolutely no basis to extend the rule of sinker to the case in hand. I may say, and say so with respect, that in Mangta's case the observation made in the High Court's judgment, as to the application of rule of sinker, was neither necessary for its decision, nor did it arise from the facts materially in issue therein. This observation, therefore, is outer dictum, and cannot have the binding weight of a precedent.
9. In this view of the matter, undoubtedly no right of pre-emption existed with respect to the sale transaction, in favour of Dewan Ali respondent. It, however, remains to be determined as to how far the notification, could be availed of by the co-vendee. In this connection, the learned counsel for the respondents towed the line of reasoning which influenced the decision of the learned Courts below and endeavoured to canvass that as the sale was indivisible, the entire transaction, including the one in favour of the co-vendee, would be covered by the notification. I am unable to agree with him. The right of pre-emption is a right of substitution for the buyer, on the terms on which he purchases the property. Since Muhammad Iqbal is not a certified Mangla Dam Displaced Person, the appellant's right of pre-emption to the extent of the sale, in his favour, would exist. The appellant will step into the shoes of the co-vendee and be entitled to all those rights, including the title which were possessed by him. Normally, a pre-emptor is bound to accept the whole of the bargain, as accepted by the vendee, but where his right of pre-emption exists only over a portion of the property, he can exercise his right on that portion only. It is fallacious to confer the benefit of the exemption on Muhammad Iqbal, who does not at all fulfil the requirements of the notification, merely because the sale is indivisible. Grant of exemption to such a co-vendee would create an anomalous situation, for, a person having no right of pre-emption, in order to save the sale in his favour, from the pre-emptory right of others would be tempted to associate with him a person, entitled to exemption under section 8(2) and give the colour of an indivisible sale to the whole transaction. I, therefore, feel that in respect of the sale, to the extent of land measuring 12 Marla; in favour of Muhammad Iqbal respondent, the appellant's suit must succeed.
10. For the foregoing reasons, the decree of the learned first Appellate Court to the extent of the sale in favour of Dewan Ali respondent, is upheld, but on different grounds. However, in respect of the land measuring 12 Marlas, purchased by Muhammad Iqbal, the impugned judgment and decree are set aside and the appellant's suit to that extent is decreed, subject to the payment of proportionate price, within two months, failing which the entire appeal shall stand dismissed. In the event of deposit of the sale price aforesaid, within the stipulated period, the parties will be deemed to have been left to bear their own costs.