1. SHAH ZAMAN BABAR, J.---This second appeal arises, out of the pre-emption suit. Khasra No. 552, measuring 20 kanals 17 marlas, situate in Sarangzona, Tehsil Tank, District D.1. Khan, was the sole property of Khudadad. By mutation No. 5522, attested on 21-3.64 (copy Exh. D. W. 1/1) Khudadad sold half of the suit khasra to Nur Khan -and the other half to Lal Khan and Muhammad, nephews of Nur Khan. By another mutation No. 5569, attested on 15-8-64, Nur Khan sold his half share, measuring 10 kanals 81 marlas in Khasra No. 552 to Raz Gul. This second mutation is the subject of this pre-emption suit. Lal Khan (major) himself along with his minor brother Muhammad, whose next friend was Lal Khan, instituted the suit for possession by pre-emption of half the land comprised in Khasra No. 552, measuring 20 kanals 17 marlas, which sale was effected by mutation No. 5569, attested on 15-8-64 in favour of Raz Gul defendant. The plaintiff's claim superior right of pre-emption as against the vendee-defendant on the ground that they were co-sharers in the suit khasra. Raz Gul contested the suit. The following three issues, among others, were framed
(1) Whether the plaintiffs have superior right of pre---emption?
(2) Whether the plaintiffs had waived right of pre-emption?
(3) Whether the plaintiffs are estopped?
2. Consequent to the application on behalf of Lal Khan, plaintiff under Order XXIII, rule 1, C. P. C., Lal Khan, one of the plaintiffs, as per order dated 14-2-1966, was allowed to with draw from the suit. The trial Civil Judge while giving his finding on the three issues, held that the plaintiff Muhammad is a co---sharer is the suit khata through mutation No. 5522 attested on 31-3-64 and hence he has superior right of pre-emption. On the second Issue, the finding is that there is no evidence that Muhammad plaintiff has waived his right. As far as Lal Khan Is concerned, he is no longer a plaintiff.
3. Muhammad plaintiff was, therefore, held not to have waived his right of pre-emption. On the third issue the finding is that no conduct of the plaintiff is shown which could act as an estoppel against him. In the result, by judgment and decree dated 27-5-66, Muhammad plaintiff was granted decree by the Senior Civil Judge, D. I. Khan.
4. Raz Gul vendee-defendant preferred appeal. It may be remark--ed at this stage that Lal Khan appearing as witness had denied having reported the sale and thumb-impressing the roznamcha thereto with respect to the sale by Nur Khan in favour of Raz Gul. The learned appellate Court (District Judge, Derajat) therefore, felt the necessity of the examination of the Fatwari Halqa. The Patwari Halqa in his deposition before the appellate Court stated that the report with respect to the impugned sale was entered by him in the roznamacha (copy Exh. P. W. 1/1) on 7-8-64, at the instance of Lai Khan, who signed the entry and that this roznamcha report is the basis of mutation No. 5569 entered on 7-8-64. The learned appellate Court, in view of the statement of the Patwari, held that since Lai Khan had taken part in the completion of the sale, he had, therefore, lost his right of pre---emption according to the provisions of section 21 of the N: W. F. P. Pre-emption Act, 1950.
5. And that since Lal Khan bad no superior right as against Raz Gul, Muhammad, there--fore, also lost the superior right according to the provisions of section 18. The defendants' appeal was thus accepted and the judgment and decree of the lower Court were set aside. The plaintiff's suit was dismissed with costs throughout by judgment dated 15-10-1966.
6. Muhammad plaintiff has come up on second appeal.
2. Mr. Inayat Elahi Khan, learned counsel for the appellant strenuously contended that Lal Khan, one of the two plaintiffs in the suit, before his withdrawal from the suit was a co-sharer and not a stranger in the khata of the suit khasra number, that his withdrawal from the suit will not affect or destroy the superior right of pre-emption of Muhammad plaintiff in any way. Chapter IV, entitled "Procedure" of the N. W. F. P. Pre-emption Act, 1950 (hereinafter referred to as the Pre-emption Act) comprises of sections ranging from 15 to 30. Section 15 relating to Notice of intention to sell by vendor to any person having right of pre-emption and section 20 of the Pre-emption Act, pertaining to extinction of right of pre-emption in default of reply to notice through Court by intending pre-emptor to the vendor are analogous to sections 14 and 15 of the Agra Pre-emption Act, 1922. Sections 16, 17, 18 and 19 of the Pre-emption Act are the verbatim re-productions of sections 19, 20, 21 and 22 of the Agra Pre-emption Act. Section 21 of the Pre-emption Act is a district statute and has no analogous or similar section in the Agra Pre-emption Act. For the purpose of this second appeal, sections 18 and 21 of the Pre-Emption Act may be reproduced with benefit "18. Where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues.
21. A person shall be deemed to have forfeited his right of pre-emption if he is found to have committed any positive act in the completion of the sale."
7. Section 18 pre-supposes the extinction of a right of pre---emption in a joint suit of pre-emptors, wherein if one of them had no such right of pre-emption his joining in the suit destroys the right of pre-emption of the other pre-emptor or pre---emptors by the doctrine of sinker. Section 21, however, A pre-supposes the absolute forfeiture of a solitary pre-emptor if he is found to have committed any positive act in the completion of a sale. Thus if a person, who has a right of pre- emption in respect of the land, negotiates sale in favour of the original vendee, he will be considered to have forfeited his right absolutely and for ever. See Zahuruddin Khan v. K. B.
8. Shahalam Khan and others (PLD 1959 Pesh. 148). In the present case, Lal Khan's superior right of pre-emption is distinct and independent of the superior right of pre-emption of his brother Mukhammad plaintiff-appellant. His waiver of the right of pre-emption and withdrawal from the suit will not disentitle his brother Mukhammad appellant to bring the present suit for pre-emption nor Mukhammad will sink with his co-plaintiff Lai Khan on account of his (Lal Khan) having forfeited the right of pre, emption. Reliance is placed on:
(1) Mahmood Bakhsh v. Hassan Bakhsh and others (1912) 47 P R 28,
(2) Sanwal Das v. Jaigo Mat and others AIR 1924 Lah. 68,
(3) Lal Behari Mlsra and another v. Equeen Mohammad Hajjam and another AIR 1926 All. 722 (2), and
(4) Suraj Prasad v. Oudh Behari and others AIR 1931 All. 216.
9. In the first Allahabad case AIR 1926 All. 722 (2), in a similar situation like the present suit, the learned Judges observed: "Plaintiff No. 1 is admittedly not a stranger to the mahal. He is not such a person as would be objectionable to the co-parcenary body if he were to acquire this share. His disqualification if at all is said to arise owing to his conduct in having accepted the sale before the suit. This at best amounts to an equitable estoppel.
10. We do not think that section 21 (Agra Pre-emption Act) was intended to alter the previous law.
11. The section does not contemplate persons who possess the right of pre-emption but who are disqualified is equity from claiming it. In this view plaintiff No. 1 at any rate would not be disqualified from claiming pre-emption merely because of having joined plaintiff No. 1 who is said to have been disqualified."
12. In the second Allahabad case (AIR 1931 All. 216), the first Allahabad case referred to above, was followed. The following discussion at page 217 will be of benefit: "It is not necessary for us to consider the effect of the statutory provision of section 15 of the Act (Agra Pre-emption Act) as to the extinction of the right of pre-emption on failure to reply to a notice served under section 14'. But as to estoppel under section 115, Evidence Act, it seems to us that such an estoppel merely operates as a bar to the suit and does not necessarily extinguish the right. The right of pre-emption existed but the remedy was barred. In the case quoted above the Bench took the view that the expression 'persons having a right to pre-empt' applies to that class of proprietors who are referred to in section 11 and section 12 of the Act as being an entitled to exercise the right of pre-emption and would not necessarily include a person who could not enforce his right on account of the principle of estoppel."
13. The two Allahabad cases, referred to above, came under discussion in Liaqat Khan v. Abdul Majid Khan (AIR 1944 All. 284). The learned Judges of Division Bench remarked at page 285, col. "Both these cases are therefore authority for holding that the relief of plaintiff by suit is barred by something outside the Pre-emption Act, such as estoppel, but do not decide whether if that plaintiff has lost his rights by a provision of the Act a co-plaintiff can succeed in the suit. Section 21 (Agra Pre---emption Act) is to the effect that where a person having a right of pre-emption sues jointly with a person not having such right, he shall lose his right; and where a pre-emptor of a higher class sues jointly with a pre-emptor of a lower class, he shall have no higher right than the person with whom he so sues. It is clear that the rights of a person having a right of pre-emption are affected whenever he joins a plaintiff who has a lesser right under the Act for his right is reduced to the right of the person with lesser right; and so in my judgment, if he joins with him a person who once had rights under section 12 but had lost them under section 15 the right of the person who had not himself lost it under section 15 should not be greater than those of a co- plaintiff who no longer had any. Therefore if a person who has a right of pre-emption is a co- plaintiff with a person whose rights have been extinguished by the provisions of section 15, his rights are similarly extinguished."
14. In the present case the question of notice under section 15 of the Pre-emption Act and the extinction of the right of pre-emption on account of failure to reply under section 20 of the Pre- emption Act do not arise. As earlier remarked that there is no analogous or similar provision in the Agra Pre-emption Act to that of sec--tion 21 of the Pre-emption Act, Before the Pre-emption Act came into force, the question of waiver of right of pre-emption by the plaintiff was allowed on the basis of equity and conduct contemplated by section 115 of the Evidence Act. Section 21 of the Pre- emption Act contemplates a situation in which a solitary pre-emptor sues and who is proved to have forfeited his right by waiver. I am, therefore, of the view that where a co-plaintiff is found to have committed any positive act in the completion of the sale and thus has forfeited his right of pre-emption, such a forfeiture will not affect the superior right of pre-emption of the other plaintiffs.
15. The doctrine of sinker under section 18 of the Pre-emption Act would not apply because in that case a person having a right of pre-emption if sues jointly with a person not having such right, the person who has a right of pre-emption will lose such right. The distinction is that in such cases the co-plaintiff, on account of whom the other plaintiff sinks, has no right of pre-emption at all.
3. There is another aspect of the case. As earlier stated, section 21 of the Pre-emption Act is one of the sections forming part of Chapter IV entitled "Procedure" of the Pre-emption Act. Lal Khan had withdrawn his suit on 14-2-66, leaving Mukhammad plaintiff alone to prosecute the pre-emption suit. Thus the procedural defect in the pre-emption suit of Mukhammad by joining Lal Khan, who had forfeited his right of pre-emption by waiver, if any, has been remedied by the withdrawal from the suit by Lal Khan under order XXIII, rule 1, C. P. C., without injuring the superior right of pre- emption of Mukhammad. Reference can be made to:
(1) Raja and others v. Hussain and others PLD 1957 Lab. 52, and
(2) Mehr Allah Ditta and another v. Muhammad All and another PLD 1972 SC 59.
4. Consequently this appeal is accepted, the judgment and decree of the appellate Court are set aside and that of the trial Court are restored.
16. As a question of law was involved, the parties are to bear their own costs throughout: