Regular Second Appeal No. 219 of 1984 and Regular Second Appeal No. 220 of 1984, which arise out of substantially indentical facts and also raise common question of law for decision can more appropriately be disposed of by one order. Facts leading up to the aforesaid two civil appeals are: Ghulam Hussain was owner of House No. 103 situated Inside Pak Gate, Multan City. On 31-7-1976, house in dispute was sold by him to Mst. Robina Shaheen (minor) daughter of Akhtar Hussain and Mst. Riaz Bano daughter of Muhammad Hussain through two separate registered sale-deeds. Such vendee purchased half share of the suit house for Rs.5,000. On 30-7-1977 Muhammad Hassan, owner of property contiguous to the suit property, sought to pre-empt the aforenoted sales and brought two separate civil suits against the vendees in the Court of Civil Judge. Multan. Similar suits were instituted by Mst. Zaitoon Begum, on 31-7-1977. She also claimed superior right on the basis of her property alleged to be contiguous to the suit property. On 12-12-1977, learned Judge of the trial Court ordered that Mst. Zaitoon Begum, a rival pre-emptor be impleaded in the suit and amended plaint be filed on 17-1-1978. Amended plaint after impleading the rival pre-emptor was put in Court on 18-1-1978, 17-1-1978 being a declared holiday. Similar order was made in Civil Suit No. 389/1978, and amended plaint was filed impleading Mst. Zaitoon Begum. Both the defendants contested the suits. In written statements submitted by the vendees, it was pleaded that the suit property had been transferred to Mst. Zaitoon Begum in recognition of her superior right of pre-emption vide registered sale-deed, dated 15-2-1978. It may of some advantage to notice that in suits instituted by Mst. Zaitoon Begum (Suits Nos. 610 of 1977 and 611 of 1977), the learned Judge of the trial Court by separate orders, dated 12 12-1977 directed her also to implead Muhammad Hassan, rival pre- emptor as party defendant. However, amended plaints were not submitted. Since both the vendees had conveyed the suit property to Mst. Zaitoon Begum, she withdrew her suits on 21-2- 1978, which accordingly were dismissed as having been withdrawn. Mst. Robina Shaheen was minor and her father Akhtar Hussain acted as her guardian ad litem. Sale-deed on her behalf was executed by her mother and father Akhtar Hussain. Learned trial Judge on the respective pleadings of the parties formulated following issues:- (1)Whether the suit cannot proceed in its present form in view of preliminary objections Nos.. 1 and 2? O.P.D.
(2)Whether the ostensible sale price of Rs.5,000 was fixed in good faith or actually paid? O . P. D .
(3)What was the market value of the suit property at the time of sale? 0 . P. Parties.
(4)Whether the plaintiff has a superior right of pre-emption qua the defendant-vendees? 0 . P. P.
(5)Whether the custom of pre-emption existed in the locality where the suit property is situated before the commencement of the Punjab Pre-emption Act, 1913? O.P.P.
(6)Whether the plaintiff is entitled to the decree prayed for? O.P.P.
(7)Relief.
2. Parties produced evidence in support of their respective version. Learned Trial Judge, vide Judgment and decree, dated 17-5-1983 dismissed both the suits. It was found that Mst, Zaitoon Begum was owner of the contiguous property and that transfer in her favour effected on 15-2-1978, though during the pendency of the rival pre-emptor's suits yet was in recognition of her superior rights, and, therefore, Muhammad Hassan who enjoyed equality of rights with Mst. Zaitoon Begum, in presence of retransfer of property could not succeed. This finding was recorded under Issues Nos. 1 and 4. There is no dispute about sale price or that requisite custom prevailed in the locality where the suit property is situate. Learned Civil Judge in his impugned order observed, "the upshot of the above discussion is that the suit house was validly purchased by defendant No.2 in assertion of her pre-emptive right. The plaintiff being at par with her and having failed to prove superior pre- emptive right cannot succeed. Resultantly, both the above-mentioned issues are decided against the plaintiff and in favour of defendant No.2 " Muhammad Hassan appealed to the Court of Learned District Judge, Multan (Civil Appeal No.71/13 of 1983, Civil Appeal No.72/13 of 1983). These appeals did not bring him better results and were dismissed on 28-4-1984. Court of appeal affirmed the findings of the trial Court recorded on issues Nos. 1 and 4. In support of its view, Court relied on Muhammad Khan v. Khuda Bakhsh 26 P R 1908 and Mool Chand and others v. Ganga Jai and others AIR 1930 Lah. 356, a Full Bench decision on the Lahore High Court. Learned District Judge iw para. 5 of his order, dated 28-4-1984 dealing with the contentions of the parties observed; "The learned counsel for the parties have been heard at length. The point is a legal one and the factual position, as stated above, is admitted'. The learned counsel for the appellant contended with reference to PLD 1971 Lah. 171, 1980 SCMR 7 and PLD 1974 Azad J & K 85 to say that in pre-emption suits after the period of limitation for filing the suit has expired the doctrine of his pendens applied and subsequent transferee would be bound by the result of the pending suit for pre-emption. On the other hand the learned counsel for the respondents has argued with reference to 26 PR 1908 to say that the reports relied upon by the learned counsel for the appellant had no application in the present cases because in those cases subsequent vendees had purchased the land after the period of limitation for filing the suit had expired and had not filed the suit: but in the present case Mst. Zaitoon had actually exercised her right of pre-emption by filing the suits and during the pendency of those suits her right was admitted and sale-deeds executed in her favour. The facts of the case of 1908 are similar to the facts of the present case and so I am inclined to accept his arguments. He also referred to AIR 1930 Lah. 356 to say that where the rights of pre-emption are equal and subsequent vendee has obtained the property in recognition of the right of pre- emption, then the pre-emptor whose suit was pending (and had equal right of pre-emption with the subsequent vendee) could not succeed. I entirely agree with him. Muhammad Hassan in this background and circumstances, has come up to this Court to seek revision of the impugned orders. Facts are short and are also not in dispute. Point at issue is whether retransfer of suit property on 15-2-1978, after the expiry of limitation period, in favour of Mst. Zaitoon, during the pendency of her suits, provided an effectual bar to the successful enforcement of pre-emptive rights by the other pre-emptor, who enjoyed equality of rights with the former. Admittedly when defendant No.2 succeeded in having retransfer of the suit property on 15-2-1978, not only her own suits were sub judice but that of the rival pre-emptor Muhammad Hassan also. Could Mst. Zaitoon Begum who allegedly was owner of continguous property, in such circumstances defeat the rival pre-emptor's suit simply by show of superior diligence in purchasing the suit property. Mirza Manzoor Ahmad, Advocate for the appellant contended that transfer of the suit property in favour of Mst. Zaitoon Begum by Mst. Robina Shaheen and Mst. Riaz Bano during the pendency of the appellants suits and that too after the expiry of period of limitation could not be urged as a valid defence to defeat the rights of Muhammad Hassan. It was also urged that Muhammad Hassan was not impleaded as defendant in the suits instituted by Mst. Zaitoon, despite orders of the Courts directing her to do so. Learned counsel also argued that sale of suit property by Akhtar Hussain acting on behalf of Mst. Robina Shaheen was totally ineffective to convey title in the suit property.
Learned counsel referred to Mst. Sant Kaur v. Teja Singh and others AIR 1946 Lah. 142, Haji Muhammad Suleman v. Muhammad Akram Khan and others PLD 1956 FC 97, Muhammad Mujtaba v. Ghulam Ali and others 1980 SCMR 7 and Muhammad Akram v. Haji Nawab and 2 others PLD 1984 Pesh. 270 to urge that transfer of suit property after expiry of period of limitation was hit by doctrine of lis pendens and was of no avail to respondent Mst. Zaitoon Begum.
3. Ch. Khurshid Ahmad, Advocate for respondents, referred to Muhammad Khan v . Khuda Bakhsh 26 P R 1908; Karam Ali v . Sultan and others 30 P R 1911; Sunder Das and others v. Sajjan Singh and others 53 P R 1911; Mool Chand and others v. Ganga Jal and others AIR 1930 Lah. 356; Mt. Sant Kaur v.
Teja Singh and others AIR 1946 Lah. 142; Muhammad Akram Khan v. Mst. Kaniz Fatima Bibi PLD 1952 Lah. 489; Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W . P .) B J 1; Mst. Fateh Bibi v .
Ahmad Khan and 6 others PLD 1971 Lah. 171; Muhammad Mujtaba v. Ghulam Ali and others 1980 SCMR 7; Gulab Khan v. Muhammad Sarwar Khan PLD 1974 Azad J & K 85; Akram v. Mst. Sakina Begum and another PLD 1984 SC 334; Mahmood Khan v. Khan Muhammad and 5 others PLD 1973 Lah. 806 and Jafferan Bibi v. Saleh Muhammad etc. 1979 CLC 889 to contend that when the suit property had been conveyed to Mst. Zaitoon Begum by registered sale-deed dated 15-2-1978, during the pendency of suits instituted well within time in recognition of superior right of pre- emption, though at par, appellant's suits could not proceed and are rightly dismissed. He also urged that section 28 of the Punjab Pre-emption Act had been faithfully complied with and that Muhammad Hassan was formally impleaded as party to the suits instituted , by Mst. Zaitoon Begum. Parties have, more or less relied on same set of precedents. I have anxiously considered the points raised in the light of the statements of law in several precedents produced and noticed above.
4.Doctrine of superior diligence cannot be successfully pressed in aid as it is do longer applicable.
Section 28 of the Punjab Pre-emption Act provides that when more suits than one arising out of the same sale are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits and then the hearing of the suits shall be held concurrently. The effect of this mandatory provision of law is that if a pre-emptor succeeds to have a decree passed, in its violation, the result obtained cannot be held binding on the rival pre-emptor whose suit was then pending and awaited adjudication. The object underlying this provision of law is that in case more than one suit is brought regarding a sale no plaintiff should be able to seek and have preference, on account of any collusion with the vendee or any other cause. By requiring that the plaintiff in each case shall be added as defendant in the other case, it allows plaintiff to bring out defects in the rights of the other and further to enable the Court to find out the degree of superiority and inferiority of respective pre-emptors. Similar facts exist in this case. Parties' suits were pending when the vendees transferred the suit property to a rival pre-emptor who then withdrew her claims from the Court. This Court in Muhammad Akram Khan v Kaniz Fatima Bibi PLD 1952 Lah. 489 speaking on the subject observed:- "In my opinion the authorities cited on behalf of the respondents are distinguishable on the fact, from the present case. It is clear that the suit of the appellant was pending at the same time in the same Court as that of Amir Baz Khan. A suit must be regarded as pending as soon as it is lodged.
Reference in this connection may be made to Faiyaz Hussain Khan v . Prag Narain s case I L R 29 All 339 (P C). About a week after the suit of the appellant had been instituted, Amir Baz Khan seems to have persuaded the original vendee to confess judgment in his favour and to have thus stolen a march over the appellant. The decree passed in his favour was in violation of the terms of section 28 of the Act which prescribes that when more suits than one, arising out of the same sale or foreclosure, are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits, the Court shall, in each decree, state the order in which each claimant is entitled to exercise his right. There can be no doubt that if the procedure laid down in this section had been followed, section 17 of the Act would have been at once attracted to the case and, the appellant as well as Amir Baz Khan would each have been granted a decree for half the property. In my opinion, the decree obtained by Amir Baz Khan in these circumstances, is of no avail to him as against the right of the appellant whose suit was pending at the same time.
Whatever the decision might have been on the authority of the Full Bench decisions of this Court, quoted above, if Amir Baz Khan had obtained a sale in his favour by private treaty, the facts here establish, that sections 28 and 17 of the Act were applicable and, therefore, those decisions being distinguishable, are not really in point. 1 may only note that there seems to be conflict of authority on the point decided in these Full Bench cases. Other Courts appear to have adopted the view that the rule of lis pendens affects all sales, whether made by private treaty or otherwise. However, I need not labour the point further, as even if the Full Bench judgments are accepted as unquestioned authorities, they must be held confined to the facts of those cases. In the present case, the position seems to be different. The decree that Amir Baz Khan had procured did not give him any advantage over the appellant, and therefore, the Court which had both the pre-emptors before it, could have given them half a share each in the property, by way of pre-emption, provided Amir Baz Khan still held the decree."
Similar observations are available in Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W.P) B J
1. M.R. Kayani, C.J. (as his Lordship then was) in para. 17 of the report observed: "Although personally I am doubtful whether Mool Chand's case was correctly decided, it has been followed in a number of other cases and the question does not arise for decision in the present case where two separate suits had been filed under section 28 of the Pre-emption Act, which lays down that when more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right. The effect of the imperative provisions of this section is that if one of these suits is decided in the absence of the plaintiff in the other suit, the decision, cannot be binding on that plaintiff. The decree which Ghulam Tayyib, therefore, obtained without impleading Shahro Khan was obtained contrary to the provisions of section 28. In the suit of Shahro Khan, Ghulam Tayyib was impleaded as required by section 28 and if it is found that their right to pre-empt is on the same footing, section 17 becomes applicable. Under that section, where several pre-emptors are found by the Court to be equally entitled to the right of pre-emption, the said right shall be exercised if they claim as co-sharers in proportion among themselves to the shares they already hold in the land or property. This was the view taken by a Division Bench of this Court in Muhammad Akram Khan v.
Kaniz Fatima Bibi PLD 1952 Lah. 489, which, incidently, did not feel particularly attracted towards the majority view in Mool Chand's case."
The same view was reiterated in Mahmood Khan v . Khan Muhammad and 5 others PLD 1973 Lah.
806. Mst. Zaitoon admittedly did not implead Muhammad Hassan in her suits. Assuming that she was owner of contiguous property like Muhammad Hassan, she could not through transfer deeds, dated 15-2-1978 defeat the rights of the rival pre-emptor Muhammad Hassan who, in the circumstances was entitled to prove his superior right independently of the consented transfers.
5. Next question that arises for consideration is whether transfer deeds, dated 15-2-1978 were in any manner hit by doctrine of lis pendens and being made after expiry of period of limitation prescribed for a pre-emption claim could not be treated as a transfer in recognition of superior right. In Mahmud Khan v. Khuda Bakhsh 26 P R 1908 while two pre-emption suits were pending, a third suit was brought by Mahmud Khan. His claim was admitted and a registered deed of sale was executed by Maula Bakhsh vendee in his favour on 7th November, 1902 obviously within one year from the date of sale. After sale Mahmud Khan allowed his suit to be dismissed in default and applied to be joined as a defendant in the other suits. Both the lower Courts decided against Mahmud Khan holding that the sale made in his favour was pendente lite. However, learned Judges of the Punjab Chief Court took a different view and observed that the transfer in favour of Mahmud Khan was not hit by doctrine of lis pendens which forbids creation of new rights, but did not apply to assertion of pre-existing rights. In the later part of the Report, the Court observed: "No doubt the sale to the appellant, Mahmud Khan, would be useless to him if that were the basis of his title, but here his title to pre-empt was existent prior to the suit and is independent both of it and of the subsequent sale which was only executed in recognition of the assertion of its rights. If that right is superior to that of Qaim Bakhsh and Khuda Bakhsh the doctrine of lis pendens would not apply to the sale which only recognizes a right superior to that of the other claimants-" (Emphasis supplied). In circumstances n the- case hand, sale-deeds, dated 15 2-1978 were made when suits filed by Mst Zaitoon Begum were sub judice. Consequently. Tranfers in her favour can safely be taken to be in recognition of the rights asserted by her. In this view of the matter, these transfers cannot be treated to be made, after expiry of limitation and, otherwise than in recognition of superior right of pre-emption.
6. Both the Courts below have found that the pre-emptors were at par as regards right to pre- empt the suit property. In my judgment, Mst. Zaitoon Begum could not defact the rights of Muhammad Hassan. She failed to implead him as party defendant despite positive direction of the Court. Any transfer in her favour, therefore, was of no avail to her against the rights of a rival pre- emptor. I find and hold that both the Courts below have not proceeded on correct premises.
Muhammad Hussain has been proved to be the owner of contiguous property, so is the case of respondent Mst. Zaitoon. In these circumstances transfer in favour of Mst. Zaitoon when suits of the rival pre-emptor were pending did not affect the rights of the appellant to have his claims adjudicated upon on merits in accordance with law. Section 17 of the Punjab Pre-emption Act 1913 clearly applied. View of law taken by the Courts below is not tenable. In the result, both the appeals are allowed, impugned judgments are set aside and the suits are remanded to the trial Court for decisions afresh on all the issues including issues Nos.l and 4 in accordance with law. Costs to be borne as incurred. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.