' Through this appeal, the judgment and decree passed by the learned Additional District Judge, Poonch (Bagh), on February 12, 1985, whereby the appeal filed by the appellant against the judgment and decree passed by the learned Sub-Judge, Bagh on July 17, 1979, in favour of respondents, was dismissed, has been called in question.
2. The brief facts of the case which gave rise to this appeal are that one Noor Muhammad son of Mune Khan sold a piece of land measuring 8 Kanals comprising Survey numbers 532-min (8 Kanals and 12 Marlas), 308-min (12 Kanals and 19 Marlas), 382 (9 Kanals and 3 Marlas), 520 (two Kanals and 8 Marlas), 782 (9 Kanals and 13 Marlas), 1617 (10 Kanals and 2 Marlas), 380 (3 Kanals and 1 Marla), 532-min (2 Kanals and 7 Marlas). 308 (13 Kanals and 14 Marlas), situate in village Singola Tehsil Bagh, District Poonch, Azad Kashmir, through a sale-deed. Dated April. 22, 1973 in favour of Mst. Ahmed Jan. His wife (daughter of Mir Alam), for a sum of Rs, 2,750 to discharge the dower debt, 3, Dost Muhammad Khan who claimed to be the co-sharer in the land and collateral of Noor Muhammad Khan vendor, filed a suit for possession of it in exercise of the right of pre-emption. He took the stand that the land was, in fact, sold for a sum of Rs, 500 and the rest of the amount was shown fictitiously,
4. The defendants were yet to be summoned when .Dost Muhammad Khan made an application for grant of permission to amend the plaint. He stated that during the pendency of the suit, Mst, Ahmed Jan, the vendor sold the suit land through Bagga Khan her attorney, in favour of Muhammad Afsar Khan through a sale-deed, dated January, 13, 1975 for a sum of Rs, 9,000 thus Muhammad Afsar Khan and Bagga Khan, the attorney, have become necessary party, therefore, he might be permitted to amend the plaint to implead Muhammad Afsar Khan, the second vendee as a party in the suit.
5. The trial Court allowed the prayer and passed an order on the following lines :- "Application seems to be correct, therefore, the amendment is permitted."
6. Dost Muhammad Khan filed the amended plaint on April 10, 1975 and in para. 4 of the amended plaint, introduced the following new clause :- "The plaintiff is a co-sharer as well as nearer collateral of defendant No, 3 (Noor Muhammad). The vendee-defendant No, 1 and the so-called second vendee, come from a different family, therefore, he enjoys the right of prior purchase as against both the venaees i,e, defendants Nos. 1 and 2."
7. Defendants Nos. 1 and 2, in the written statement, dated December 4, 1985, stated that plaintiff was remoter heir than the vendee-defendant No, 1, therefore, he had no right of pre-emption. The claim of cosharership was, however, admitted but it was claimed that the land was sold in lieu of dower debt, therefore, it was not pre-emptible.
8. Mst, Ahmed Jan daughter of Noor Muhammad also filed a suit for pre-emption against the aforesaid sale and stated that she was the daughter of the vendor, therefore, enjoyed prior right of purchase over the vendee, the land was sold on payment of Rs, 1,000 only and the rest of the amount shown in the deed was fictitious, therefore, a decree for possession might be granted in her favour. Mst. Ahmed Jan, plaintiff also moved an application on February 28, 1975 for grant of permission to amend the plaint and stated that the vendee, Mst. Ahmed Jan, in order to defeat her right, sold the land in favour of Muhammad Afsar Khan, during the pendency of the suit, as such, the said sale was void and she might be allowed to take up the said plea in the plaint and the learned Sub-Judge passed an order on the following lines :- "The stand taken by the plaintiff seems to be correct on the face of it. The amendment to implead necessary party is granted. The opposite party has also no objection, if the persons mentioned in the application are impleaded as party."
9. Mst. Ahmed Jan, plaintiff filed amended plaint on April 10, 1975 and introduced the amendment in para. 3-A of the amended plaint.
10. Mst. Ahmed Jan, vendee-defendant No, 2 and Muhammad Afsar Khan, defendant No, 4, filed a joint written statement on May 7, 1975 and took up the stand that the land was sold on payment of Rs, 2,750 in favour of defendant No, I who sold it to defendant No, 4 on payment of Rs, 9,000. The plaintiff has no relationship with defendant No, 1, thus, she has no right to claim the prior right of pre-emption as against defendant No, 4; she was also a consenting party to the sale, therefore, she had waived her right, so her suit might be dismissed. In the alternative, a decree on payment of Rs, 9,000 might be passed.
11.
11. Mst. Ahmed Jan, daughter of Noor Muhammad also filed a suit to pre-empt the sale made on January 11 1973, whereby Mst, Ahmed Jan. Daughter of Mir Alam sold the suit land in favour of Muhammad Afsar Khan, appellant on payment of Rs, 9,000. She claimed that the land was in fact, sold on payment of Rs, 2350 and the rest of the amount was fictitiously shown in the sale-deed.
12. Muhammad Afsar Khan denied the right of Mst. Ahmed Jan and -stated that she was not the daughter of the vendee, therefore, she had no right of prior purchase.
13. Mst. Jannat Bibi daughter of Noor Muhammad Khan also filed a suit against sale of the land made by Mst. Ahmed Jan daughter of Mir Alam in favour of Muhammad Afsar Khan on January 13, 1973 and claimed the right of prior purchase. She stated that although she was the step-daughter of the vendor, yet she had the right of prior purchase as against the vendee (Muhammad Afsar Khan).
14. Muhammad Afsar Khan, vendee denied the right of Mst. Jannat Bibi and prayed for the dismissal of the suit.
15. Muhammad Afsar Khan also filed a suit for possession of land measuring 4 Kanals out of the land measuring 8 Kanals which he had purchased through a sale-deed, dated January 13, 1975 and stated that he took possession of the entire land i,e, 8 Kanals but on January 20, 1975, the defendants took possession of 4 Kanals of it without any right.
16. The learned Sub-Judge, after consolidation of the suits, settled issues on April 9, 1978 and after hearing the parties, through order, dated July 17, 1979 held that Mst. Ahmed Jan daughter of Noor Muhammad and Dost Muhammad Khan enjoyed the right of prior purchase as against the vendees, therefore, they were entitled to pre-empt the sale in equal shares. The suits filed by Muhammad Afsar for possession of the land measuring 4 Kanals and by Mst. Jannat Bibi and Mst.
Ahmed Jan daughter of Noor Muhammad, in exercise of the right of pre-emption against the sale, dated January 13, 1975, were however, dismissed.
17. Muhammad Afsar vendee felt dissatisfied with the judgment, dated July, 17, 1979 and went in appeal to the Court of Additional District Judge, Poonch at Bagh but his appeal was rejected vide order, dated December 13.
1980. His second appeal was, however, accepted by this Court on November 10, 1983 and the case was remanded to the Court of learned Additional District Judge, Bagh to decide, the case in accordance with law. The learned Judge took the view that the points :- "(1) whether the sale made in lieu of dower money in favour of the wife by the husband, was open to pre-emption ;
(ii) whether the principle of waiver would be applicable as against Mst. Ahmed Jan, plaintiff ;
(iii) whether Dost Muhammad was entitled to claim the right of preemption against Muhammad Afsar, when he did not file separate suit against the sale, dated January 13, 1975 ; and
(iv) whether Dost Muhammad who claimed the right of pre-emption on the basis of relationship as collateral, in the presence, of Mst. Ahmed Jan, plaintiff who was a daughter and the lineal descendants of the vendor, would be entitled to get a decree for pre-emption and who would be entitled to receive the pre-emption money when Mst Ahmed Jan daughter of Mir Alm (the first vendee) was dead and her heirs were not impleaded as legal representatives. Were left undecided by the lower Court and the decision thereof was necessary.
18. The learned Additional District Judge, Bagh, after the remand of the case, heard the parties and through order dated February 12, 1985, dismissed the appeal. He held that sale dated April 22, 1973 made by Noor Muhammad in favour of Mat. Ahmed Jan in lieu of dower money, was not pre- emptible and Mst. Ahmed Jan was the absolute owner of the land, sold to her on April 22, 1973 but the sale made by her on January 13, 1975 in favour of Muhammad Afsar Khaa was pre-emptible and Mat. Ahmed Jan daughter of Noor Muhammad and Dost Muhammad enjoyed the right of prior purchase against Muhammad Afsar and were entitled to the grant of decree in equal share. He further held that Mst. Ahmed Jan daughter of Mir Alam had sold the land in favour of Muhammad Afsar Khan, therefore, the defect to implead her legal heirs as a party, would not have any adverse effect on the rights of Dost Muhammad Khan and Mst. Ahmed Jan daughter of Noor Muhammad.
He took the view that Muhammad Afsar Khan was the person entitled to receive the decretal amount as Mst. Ahmed Jan (wife of Noor Muhammad) had sold the suit land in his favour, therefore, the heirs of Mst. Ahmed Jan were not entitled to claim the decretal amount. The points of waiver and whether Dost Muhammad, as a collateral of Noor Muhammad Khan, in the presence of Mst. Ahmed Jan, the daughter and lineal descendant of Noor Muhammad, was entitled to pre- empt the sale, were, however, left undecided.
19. Muhammad Afsar Khan, appellant, challenged the aforesaid order of the learned Additional District Juige, Bagh through the present appeal and his learned counsel assailed the decree of the Court below, on the following grounds :-
(i) Mst. Ahmed Jan had no right of prior purchase ;
(ii) Dost Muhammad Khan did not pre-empt the sale dated January 13, 1975 made by Mst. Ahmed Jan in favour of the appellant, therefore, he could not claim the decree on the basis of right of prior purchase against him ; and
(iii) the points of waiver and whether Dost Muhammad who was admittedly a collateral of Noor Muhammad Khan, would be entitled to the grant of a decree on the basis of right of prior purchase when lineal descendant of the vendor (Mst. Ahmed Jan) was a rival pre-emptor, were left undecided, therefore, the judgment of the Court below was bad in law and required to be vacated.
20. The learned counsel for the appellant, elaborating his points stated that the sale made by Noor Muhammad Khan on March 22, 1973, in favour of Mat. Ahmed Jan, his wife, was not pre-emptible, as it was made by the husband in favour of his wife in lieu of dower. The sale made by Mst. Ahmed Jan daughter of Mir Alam in favour of Muhammad Afsar Khan, on January 13, 1975, could not be pre-empted by Ma. Ahmed Jan daughter of Noor Muhammad because she had no right of prior purchase as against Muhammad Afsar, appellant. She was neither an heir of My. Ahmed Jan nor she had the right of prior purchase on the basis of any other ground. Thus, the decree passed by the lower Court in favour of Mst Ahmed Jan, was illegal and required to he vacated
21. To take up the point as to whether Dost Muhammad Khan who did not file a separate suit to pre-empt the sale made by Mst. Ahmed Jan daughter of Mir Alam in favour of Muhammad Afsar Khan, appellant had the right to pre-empt the sale, dated January 13, 1975 he referred to the application, dated March 9, 1975 moved by Dost Muhammad Khan for permission to amend the plaint which he had filed against the sale dated March 22, 1974 and the order of the learned Sub- Judge March 25, 1975 and pointed out that in the said application neither the prayer to plead the right of prior purchase against Muhammad Afsar, appellant was made nor any ground on the basis of which he claimed the aforesaid right, was snown. The Court below also did not allow Dost Muhammad to plead the right of prior purchase by way of amendment. Dost Muhammad, however, introduced amendment in para. 4 of the amended plaint, whereby the right of prior purchase was claimed against the appellant without permission of the Court. It was an unauthorised action and was not of any legal effect as against the rights of the appellant.
22. To take up the points of waiver and the effect of the claim of Mst. Ahmed Jan, the lineal descendant of Noor Muhammad Khan over the right of Dost Muhammad Khan, which were left undecided by the Court below, the learned counsel contended that although the impugned judgment was defective, yet it would not be in the interest of justice to remand the case and enhance the agony of the parties to undertake litigation for another three years. He urged that these were the law points and this Court should itself resolve them.
23. The learned counsel for the respondents Nos. 1 to 5, controverted the stand taken by the learned counsel for the appellant and argued that the sale made by Noor Muhammad Khan on April 22, 1973 in favour of Mst. Ahmed Jan, his wife, was out and out a complete sale and there was no element of gift in it, thus it was pre-emptible. He emphasized that the sales which were immune from the operation of the law of pre-emption, were specifically mentioned in the Act and the sale in band was not included in those sales. He contended that the sale made to discharge the debt, let it be a dower debt, would be as good a sale as a sale of the land made on receipt of money in cash or on a promise extended by the vendee to make the payment in future and was open to pre- emption, as such the Legislature did not exclude such a sale from the operation of the pre-emption Act. He admitted that the dictum of the lower Court on this point was not challenged by way of an appeal or by cross-objections, yet he argued, that his client was entitled to support the decree of the lower Court on this point too.
24. Taking up the point formulated by this Court about the claim of Mst. Ahmed Jan, daughter of Noor Muhammad that she was the lineal descendant of the vendor, and its effect on the decree passed in favour of Dost Muhammad, he stressed that Noor Muhammad Khan was the sole owner of the land sold to Mst. Ahmed Jan and clause (a) of section 14 of the Prior Purchase Act would he attracted to resolve this controversy. Mst. Ahmed Jan being the daughter of the vendor, would get only one-half share as was specified in the law of inheritance and would not exclude Dost Muhammad Khan to share the decree of pre-emption thus Dost Muhammad Khan would also be entitled to get a decree along Mst. Ahmed Jan to the extent of one-half.
25. Reverting to the sale, dated January 13, 1975, made by 10 Ahmed Jan daughter of Mir Alam in favour of Muhammad Afsar Khan, appellant, he argued that it was made during the pendency of the suit as such it would not be of any legal effect, thus it would have to be ignored altogether and the rights of the parties would be decided, keeping in view the sale dated April 22, 1973 only. If in any case, he contended, the sale, dated January 13, 1975 was considered by this Court to be lawful even then Mst. Ahmed Jan, daughter of Noor Muhammad was a distant kindred of Mst. Ahmed Jan wife of Noor Muhammad Khan in the capacity of her step-daughter thus was entitled to inherit her and as such enjoy the rigot of prior purchase as against the appellant.
26. To revert to the claim of Dost Muhammad Khan, he pointed out that Dost Muhammad Khan as is evident from the copy of annual record, 1951, is a co-sharer in the land sold and this fact is also admitted by the appellant in para. 4 of the written statement, dated December 4, 1975 as such he is entitled to exercise the right of pre-emption. To meet the objection that Dost Muhammad Khan introduced the amendment in the plaint without the permission of the Court, he argued that no objection with respect to this amendment was raised anywhere in the lower Courts and it would be much late in the day for him to come up with this plea at this stage. The right of pre-emotion against the appellant in very clear terms was pleaded in para. 4 of the amended plaint and the appellant being alive to this fact, admitted the claim of Dost Muhammad Khan, plaintiff in his written statement and prayed for grant of decree on payment of Rs, 9,000, therefore, the appellant is estopped to raise this objection at this stage.
27. To meet the point as to whether a separate suit against the sale, dated January 13, 1975 was necessary, he contended that amendment introduced in the plaint filed in toe suit pending against Mst. Ahmed Jan for the sale, dated April 22, 1973, was sufficient to decide the rights of pre emptors and the second vendee, inter se because the second sale was made during the pendency of the suit against the first sale, thus the separate suit was not essential.
28. Reverting to the point of waiver against Mst. Jannat Bibi, he emphasized that no issue on this point was claimed and no evidence was led by the vendees, therefore, this objection would not be allowed to be raised here. Furthermore, the suit filed by Mst. Jannat Bibi was dismissed by the trial Court a d she did not challenge the decree by way of an appeal as such it would be of no use to consider this point at this stage.
29. I have considered the arguments advanced by the learned counsel for the parties, have gone through the entire record of the case minutely and have also perused the authorities cited at the Bar.
30. Before dealing with the objections raised by the learned counsel for the appellant, against the decree impugned in this appeal, I think, it would be expedient to dispose of the objections raised by the learned counsel for the respondents against the findings arrived at by the Court below that the sale, dated April 22, 1973 made by Noor Muhammad in favour of his wife in lieu of dower money, was not immune from the operation of law of pre-emption.
31. The stand taken by the learned counsel for the respondents that the sale of immovable property, not specifically excluded from the operation of the law of pre-emption, is pre-emptible, is not always correct. A transaction which on the face of it, looks to be the sale but in fact, is not a sale is not pre-emptible.
32. Sale as contemplated by the law of pre-emption means a voluntary transfer of ownership of the immovable property on payment of its price in cash or mainly in cash and the payment of the real price is the only criteria which distinguishes the sale from other transactions such as gift, will and exchange etc and wherever the payment of true price is lacking and the vendor has other consideration to transfer the property, the transfer shall not be the sale and shall not be pre- emptible.
33. The question that whether a sale of land made by an husband in favour of his wife in lieu of dower was pre-emptible or not, came up for consideration before the Lahore High Court in a case reported in L D 1952 Lah. 421 and it was observed :- "A consideration of these authorities leads us to the conclusion that a transfer of the character under discussion may have some incidents of a sale proper and, therefore, may be described as tantamount to a sale for certain purposes but the view seems to have been consistently adopted so far as this Court is concerned, that such a transaction is not subject to a right of pre-emption as it involves an element of gift. As at present advised, we see no reason to depart from that view.
Even the authorities cited on behalf of the appellant leave the question whether such a transaction should be regarded as a sale or not to be decided on the facts of each case. In the present case, we have no doubt that the transfer by the husband in favour of the wife, was not intended to be a sale simpliciter. The value of the property involved was considerably higher than the dower debt mentioned by the son of the deceased, before the mutation officer. It is, therefore, obvious that an element of gift was involved in this case."
34. In the present case, 8 Kanals of land was sold for a sum of Rs, 2,750 on April 22, 1973 by Noor Muhammad Khan in favour of Mst. Ahmed Jan to discharge the dower debt and Mst. Ahmed Jan in turn, sold it in favour of the appellant for a sum of Rs, 9,000 on January 13, 1975 which would show that there was a rise in the price of the land by 320 per cent. Within a period of 18 months which I believe, was not possible. In ordinary circumstances the land which was available for sale at the rate of Rs, 344 per Kanal would not be purchased ordinarily by B any person at the rate of Rs, 1,125 per Kanal. The price of the land, which was situate in a far flung area, when half of it was barren, could not rise to the extent of 320 per cent. Within a p.:riod of 18 months and the only safe and possible inference which could be drawn, would be that Noor Muhammad Khan did not sell the land to his wife and did not charge its true price, rather it was an act of affection and he transferred this land to his wife in lieu of dower. Keeping in view this aspect of the case, I think, this transaction had an element of gift and was not a sale thus was not open to pre-emption.
35. The next stand of the learned counsel for the respondents that Mst. Ahmed Jan sold the land on January 13, 1975, in favour of the appellant when the suit for pre-emption was already pending in the Court, therefore, this sale was hit by the doctrine of us pendens and did not have any legal entity, I think, was not correct. As soon as the sale in favour of Mst. Ahmed Jan was complete, she became full owner of the land and became competent to deal with it as she wished. The pendency of the suit of pre-emption against the sale made in her favour was not by itself sufficient to nullify the second sale as was held in a case decided by the Lahore High Court in a case reported in AIR 1946 Lah.
142. The relevant observations are reproduced below :- "Where during the pendency of a suit for pre-emption and before the expiry of limitation for instituting a suit for pre-emption the vendee transfers the property sought to be pre-empted in favour of A in recognition of his right of pre-emption and in recognition of right to enforce that right by means of legal action the transfer by the vendee to A cannot be regarded as voluntary so as to attract the rule of us pendens. In such a case, A must be regarded as having simply been substituted for the vendee in the original bargain of sale and he can aefend the suit on all pleas which he could have taken had the sale been initially in his own favour. But where at the time of transfer to A, limitation for instituting a suit for preemption had expired and A had lost the use of the coercive machinery of law for compelling the vendee to surrender the property in recognition of his right of pre-emption the transfer in favour of A by the vendee must be regarded as a voluntary transfer of such title as the vendee himself had acquired under the original sale so as to attract the principle of lis pendens. In such a case the transfer has not the effect of substituting the subsequent transferee A in place of the vendee in the original bargain. He cannot be regarded as anything other than a representative-in-interest of the original vendee, having no right to defend the suit except on the pleas that were open to such vendee himself and hence cannot plead his own equal or superior right of pre-emption and defeat the plaintiff's right to pre-empt."
36. After having come to the conclusion that the sale dated April 22, 1973 made by Noor Muhammad Khan in favour of Mst. Ahmed Jan was not open to pre-emption, the effect of pre- emption suits filed by Mst. Ahmed Jan and Mst, Jannat Bibi against the sale dated January 13, 1975 and the effect of the claim of Dost Muhammad Khan that having filed the amended plaint in the suit titled Dost Muhammad Khan v. Mst. Ahmed Jan and others, he was entitled to pre-empt the sale dated January 13, 1975, are required to be determined.
37. Mst. Ahmed Jan and Mst. Jannat Bibi both claimed the decree for possession of the land in exercise of the right of prior purchase on the basis of relationship with Mst. Ahmed Jan, the vendor.
The law of pre-emption no doubt entitles the heirs of the vendor who, but for such sales, would be entitled on the death of the vendor to inherit the land to claim pre-emption. Mst. Ahmed Jan's and Mst. Jannat Bibi's claim that they are the step-daughters of the vendor and Muhammad Afsar Khan, had no relationship with the Nendor, therefore, they have the right of prior purchase. This stand, I believe, is not correct. A step-daughter cannot inherit her step-mother, either as a sharer, residuary or distant kindred because she has no link with her step-mother through any male or female person. The fact that Muhammad Asfar Khan did not have any relationship or link with the vendor, will not render any help to the pre-emptor to prove the right of prior purchase. I, therefore, hold that Mst. Ahmed Jan and Mst. Jannat Bibi daughters of Noor Muhammad Khan had no right to pre-empt the sale dated January 13, 1975, made by Mst. Ahmed Jan wife of Noor Muhammad Khan in favour of Muhammad Afsar Khan, appellant.
38. Dost Muhammad Khan, plaintiff-respondent although did not file a separate suit to pre-empt the sale of the land dated January 13, 1975, yet he had the right to seek relief against Muhammad Afsar Khan, appellant who purchased the suit land during the pendency of the suit of pre-emption by way of amendment of the plaint already filed by him. He had the right to move the application for grant of amendment and clearly state the grounds on which he was entitled to exercise the right of prior purchase against the second vendee and if he would have been permitted by the Court to amend the plaint he would have been entitled to press the claim of pre-emption. Dost Muhammad Khan no doubt moved an application on March 9, 1975 and stated that the vendee, during the pendency of his suit, sold the land in favour of Muhammad Afsa Khan, appellant through sale-deed, dated January 13, 1975 for a sum o Rs, 9,000 but he prayed for permission to implead Muhammad Afsar Khan and Bagga Khan as defendants because, according to him, they had become necessary party. He did neither state that he has the right of prior purchase as against Muhammad Afsar Khan, appellant nor h detailed the grounds on which his right was based. The learned Sub-Judge permitted the amendment because the application was found by him to b correct. Dost Muhammad Khan filed amended plaint on April 10, 1975 and in para. 4 of the said amended plaint, added the following paragraph :- "The plaintiff is a co-sharer of the vendor besides being his nearer collateral. The defendant No, 1 vendee and the so called defendant No, 2 come from different family, therefore, the plaintiff enjoys the right of prior purchase against them."
' Para. 4 of the original plaint, however, dealt with the right of prior purchase of Dost Muhammad Khan, as against defendant No, 1 (Mit. Ahmed Jan) and did not refer to Muhammad Afsar Khan, vendee in any form.
39. Order VI, rule 17, C. P. C. Deals with the application for amendment of the pleadings and allows the parties to pray for grant permission for amendment. It also gives powers to the Courts to allow the amendments suo motu. But this provision or any other provision o law, did not authorize any party to introduce the amendment in the pleadings without the permission of the Court, however, genuine the required amendment might be. The point where a party without permission of the Court introduced the amendment in the pleadings was considered by this Court in a case reported in PLD 1965 Azad J & K 27 and it was observed :-- "A party desiring to amend his pleadings has to make an application in writing to the Court stating precisely the amendment he seeks to make in his pleadings and the Court should also pass a clear order showing the nature and extent of the amendment allowed. A pleading can be amended only to the extent allowed by the Court. No general prayer for an amendment can be made or allowed.
Thus, when a plaint was ordered to be amended by addition of parties and the plaintiff in the amended plaint altered also the valuation of the suit for jurisdictional purpose, it was held that the plaint must be taken as originally framed, even though the unauthorized amendment as to the alteration of value for jurisdictional purposes was not objected to either by the Court by the other party. An amendment that was not sought nor granted would be ignored and the original value fixed in the original plaint would determine the forum of appeal."
' I, therefore, hold that the amendment in para. 4 of the plaint. Dated April 10, 1975, whereby Dost Muhammad Khan, pleaded the right of prior purchase against Muhammad Afsar Khan, appellant was unauthorized and would not give any right to Dost Muhammad Khan to claim the right of prior purchase against Muhammad Afsar Khan, appellant.
40. After having found that the sale made by Noor Muhammad Khan in favour of Mst. Ahmed Jan (his wife) was not pre-emptible and Mst. Ahmed Jan daughter of Noor Muhammad has no right to claim prior purchase against the sale of the land made by Mst. Ahmed Jan daughter of Mir Alam Khan in favour of Muhammad Afsar Khan, appellant and Dost Muhammad Khan did not claim the right of prior purchase against the sale of the land made by Mst. Ahmed Jan in favour of Muhammad Afsar Khan, appellant, there remains no necessity to determine as to whom of the pre-emptors would be entitled to claim the right of prior purchase inter se.
41. The learned counsel for the respondents pointed out that Mst. Ahmed Jan vendee is dead and the appellant has not brought her legal representatives on record, therefore, this appeal stands abated.
42. The perusal of the appeal filed by the appellant in the Court of learned Additional District Judge, Poonch (Bagh) against the decree passed by the learned Sub-Judge, Bagh on July 17, 1979, would show that Mst. Ahmed Jan daughter of Mir Alam Khan, died during the pendency of the suit and in appeal, she was shown dead and was imp,eaded as respondent through her attorney. Impleading a dead person through attorney, is not correct because the agency terminates as soon as the principal is dead. However, the heirs of Mst. Ahmed Jan are not necessary party because Mst.
Ahmed Jan sold the suit land in favour of Muhammad Afsar Khan, appellant who is her legal representative for the purpose of the sale in dispute and is a party in this appeal. I, therefore, overrule this objection.
43. As held earlier, the sale of the land made by Noor Muhammad Khan in favour of Mst. Ahmed Jan on April 22, 1973 in lieu of the dower money, was not prc-emptible and Mst. Ahmed Jan was fully competent to sell this land in favour of Muhammad Afsar Khan, therefore, the suits brought by Mst. Ahmed Jan daughter of Noor Muhammad Khan and Dust Muhammad Khan were liable to be dismissed. The suit brought by Mst. Ahmed Jan daughter of Noor Muhammad against the sale dated January 13, 1975 made in favour of Muhammad Afsar Khan, appellant also fails because she has no right of prior purchase against Muhammad Afsar Khan, appellant (vendee). Dost Muhammad Khan did not lawfully claim the right of prior purchase against the sale dated January 15, 1975 made by Mst. Ahmed Jan in favour of Muhammad Afsar Khan, appellant, therefore, his claim of prior purchase also fails.
44. Muhammad Afsar Khan's claim that after the sale of the land measuring 8 Kanals made by Mst.
Ahmed Jan in his favour on January 13, 1975 he took the possession of it and was ejected from four Kanals of it on January 20, 1975 was not proved. He has purchased 8 Kanals of land comprising Survey Nos. 532-min, 308-min, 382, 520, 478, 307, 782, 1617, 380, 532.-min, 308, 307 and 475 which was a joint property, therefore, on the basis of title he is entitled to the grant of decree for joint possession of it. But as he contends that four Kanals of land is in his possession, therefore, he is entitled to grant of decree for joint possession of fou Kanals of land only. I, therefore, hereby grant a decree for joint possession of land measuring 4 Kanals forming part of the land comprising Survey Nos. 532-min, 308, 382, 520, 307, 782, 1617, 380, 532-min, 308, 307 and 475 in favour of Muhammad Afsar Khan appellant against the respondents. Consequently, the appeal stands accepted in the manner indicated above. Keeping in view the circumstances of the case, the parties are left to bear their own costs throughout.