1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore in Regular Second Appeal No. 281 of 1957, dated the 31st March 1965. By this judgment, the appeal was accepted and the judgment and decree of the learned Additional District Judge, was set aside.
2. The dispute between the parties is in respect of 56 kanals and 11 marlas of land situated in the area of village Giddu Kalan. The respondent Khushi Muhammad, along with Sardar Khan son of Hayat Khan filed a suit for possession by pre---emption of the said property, sold by Mst. Said Bibi, Sardar Khan and Mst. Aisha Bibi to Ghulam Muhammad and Allah Ditta appellants by means of a registered sale deed dated the 2nd of October 1964, for Rs. 9,000. The respondents claimed pre- emption on payment of Rs. 6,500 only as they alleged that this amount was actually paid and was also the market value of the property in dispute. The appellants contested the suit. They challenged the superior right of pre-emption of the respondents. They pleaded that the amount of Rs. 9,000 was actually paid as the price of the land in dispute. They also contended that the suit was barred by limitation and claimed compensation for improvements effected on the land in dispute.
3. The trial Judge framed the following issues:
(1) Whether the plaintiffs' right of pre-emption is superior to that of the defendants.
(2) Whether the sale money Rs. 9,000 was fixed in good faith and actually paid.
(3) What is the market value of the suit land?
(4) Whether the plaintiffs' suit was time-barred?
(5) Whether the defendants have made any improvements, on the suit land and of what value and with what effect?
(6) Relief.
4. The trial Judge decided issues Nos. 1 to 4 in favour of the respondents. Issue No. 5 was not decided as the respondents had given up claim with respect to Khasra No. 620 out of the land in dispute and compensation was claimed in respect of Kothas built on that Khasra number. The trial Court granted decree to respondent Khushi Muhammad plaintiff for 7/8th share of the land in dispute except Khasra No. 620 on payment of Rs. 7,875. The suit of respondent Sardar Khan was dismissed as he had no superior right of pre-emption. The appellants challenged this order before the learned Additional District Judge, Gujrat. He accepted the appeal and held that there was no proof that Khushi Muhammad had a superior right of pre-emption as against Allah Ditta. He further held that as the respondents had withdrawn their suit with respect to Khasra No. 620, the suit suffered from the defect of partial pre-emption and was liable to be dismissed. The matter was then taken in Regular Second Appeal and a Division Bench of the former High Court of West Pakistan, Lahore, accepted the appeal and held that Khushi Muhammad respondent had a superior right of pre- emption. It further held that the suit did not suffer from the defect of partial pre-emption. The appellants have challenged, this judgment in this appeal before us.
5. Special leave was granted in this case to consider the question whether in the circumstances prevailing in the case, the suit could not have been decreed on the ground of the plaintiffs' failure to pre-empt the whole sale. The point was not covered by any authority of this Court and the position of the authorities of the High Court appeared to be uncertain.
6. Mr. Iftikharul Haq Khan, learned counsel for the appellants has contended that the suit suffered from the defect of partial pre---emption and the High Court had no jurisdiction to interfere with a finding of fact about the superior right of pre-emption of respondent Khushi Muhammad. So far as the second point is concerned, the contention of the learned counsel is without force. The learned Additional District Judge has held that it was not proved on the record that Khushi Muhammad is an heir of Mst. Said Begum. He disregarded the oral evidence produced on behalf of Khushi Muhammad respondent and did not attach any weight to that evidence. It was brought to the notice of the High Court that oral evidence of Ramzan and Khan Bahawal P. Ws. Remained unrebutted and no one appeared on behalf of the appellants to contradict the evidence produced by the respondents. The High Court was further of the opinion that since the relationship was through a woman, there was no possibility of the production of any revenue record and the question should have been proved by oral evidence. On this question, the High Court observed as under :- "Mst. Said Bibi is not related to the plaintiff-appellant. Consequently so far as Mst. Said Bibi is concerned, the property sold by her cannot be pre-empted. So far as the property sold by her is concerned, the suit has been rightly dismissed. However, so far as Sardar Khan and Mst. Aisha Bibi are concerned, they are the son and daughter of Ragman, who is proved to have two sisters, Mst.
7. Imam Bibi and Umar Bibi. Ramzan P. W. Has deposed to the above relationship. The plaintiff- appellant has himself appeared as his own witness to prove the above relationship. The defendants have not come into the witness-box to deny this relationship. The learned Additional District Judge has not given any valid reason to disbelieve the oral testimony as regards the relationship of the vendors with the pre-emptor. Since the relationship is through a woman there was no possibility of the production of any revenue record and it could have been proved by the oral evidence only. The oral evidence led by Khushi Muhammad plaintiff stands un-rebutted. The least that the vendees should have done was to appear them--selves in the witness-box and to examine the vendors, which has not been done. We do not see any valid reason to reject the oral testimony produced by the plaintiff-appellant. We would, therefore, hold that it has been satisfactorily proved that Khushi Muhammad has a superior right of pre-emption over the vendees, who are in no way related to the vendors while the relationship of the plaintiff-pre-emptor with the vendors stands proved."
8. Coming now to the first question whether the suit suffered from the defect of partial pre-emption. It will be noticed that according to respondent Khushi Muhammad, Khasra No. 620 had earlier been sold by the vendors to some other persons who had applied for being impleaded as party to the suit. The appellants admitted these facts in their statements before the Local Commissioner. The respondents thereupon decided to claim pre-emption of the rest of the property on payment of the full price of Rs. 9,000, as they did not like to enter into litigation about this Khasra number with the persons who had earlier purchased it, The case of the respondents is that since the vendors had no title to pass on to the vendees, therefore, they decided to give up their claim with regard to this Khasra number and as they have expressed their willingness to purchase the rest of the property for the frill price paid by the vendees, the suit did not suffer from the defect of partial pre-- -emption. The question, therefore, for consideration is whether in the circumstances of the present case, the respondents sere justified in giving up their claim against Khasra No. 620 and whether the suit suffered from the defect of partial pre-emption.
9. Mr. Iftikharul Haq Khan, learned counsel for the appellants, referred us to the judgment of the High Court. The learned Judges of the High Court have relied on the cases of Labh Singh v. Kher Singh (AIR 1945 Lah. 11), Muhammad Azeem v. Arbab Sher All Khan and another (AIR 1933 Pesh. 74), Paltan Singh v. Prag Narain and another (AIR 1945 Oudh 167), Sardar Lai Singh v. Diva Singh and another (107 P R 1882) and Mahaprashad v. Dukha Haran Nath and another (AIR 1941 Oudh 18). In the first two cases mentioned above, it was held that the plaintiffs had not included a portion of the property in their suits as they claimed that it belonged to them. On these facts, it was held that the suit did not suffer from the defect of partial pre-emption. In the case of Paltan Singh it was held that a pre-emptor is entitled to pre-empt even a part of the property sold if he pays the entire consideration money paid by the vendee for the whole of the property sold. The same view is expressed in the case of Mahaprashad v. Dukha Haran Nath and another.
10. Mr. Iftikharul Haq Khan, learned counsel or the appellants has referred us to a decision of this Court in Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299). In this case, it was held that the right of pre-emption is one of substitution even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent. It was further held that the question of partial pre-emption generally arises in the following circumstances namely;
(i) When the pre-emptor himself claims title to a part of the lands sold or to a share out of those lands.
(ii) When the pre-emptor assails the vendor's title to a part of the lands sold or the extent of his title thereto.
(iii) When the pre-emptor sets up title of third persons to a part or share of the lands sold.
11. It was held in that case that the answer to this question will depend upon whether the pre-emption has been claimed under the Muslim Personal Law or under a statute. Dealing with the question of right of pre-emption under the statute law, it was observed as under "The right of pre-emption is one of substitution even in the case of pre-emption under statute law, unless the statute itself has made a departure in this regard to any extent. As for instance, the Punjab Pre-emption Act, 1913 provides that the Court itself may, in certain circumstances, fix the price to be paid by the pre-emptor instead of the price entered in the deed of sale and purported to have been paid by the vendee as consideration for the transaction. From the doctrine that the right of pre-emption is one of substitution, it follows that, unless the statute conferring the right of pre-emption otherwise provides, the pre-emptor must take over the whole bargain, that is to say the pre-emptor must seek pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendee as consideration. This, however, is subject to certain limitations which, at any rate, do not include the vendor's defective or want of title. It is not necessary to detail here all those limitations. Suffice it to say by way of example that a pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre- emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not. In case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it. It is noticed that in the present case the pre-emptors' right of pre-emption is not subject to any kind of limitation; their right of pre-emption extends over the whole of the lands sold, and no part of the lands is Incapable of pre-emption."
12. From the above observation, it is clear that ordinarily the pre-emptor must take over the whole bargain and he must seek pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendees as consideration. There are, however, certain exceptions which according to the view taken in this decision do not include the vendor's defective or wane, of title and it is not open to the pre-emptor to give up the claim as he likes. In the light of the above observation it is clear that the respondents' case does not fall within the limitation specified in this decision. The partial pre-emption can only be permitted if it is as of necessity and not because the pre-emptor wants it.
13. Judging the facts of the present case on the principle laid down in the above-mentioned observation, it is quite clear that the respondents have given up the claim in order to avoid further litigation which cannot be considered as of necessity. The respondents should not have given up their right to Khasra No. 620 simply because somebody else was claiming right to it. They should have also claimed pre-emption of Khasra No. 620 in spite of the fact that the vendors' title was in their opinion defective.
14. Raja Said Akbar Khan, learned counsel for the respondents, has contended that a pre-9mptor is entitled to pre-empt even a part of the property sold if he pays the entire consideration money paid for the whole property sold. In support of his con--tention, he relied on Mahaprashad v. Dukha Haran Nath and another, Abhairaj Singh v. Udalraj Dube and another (A T R 1943 Oudh 382) and Paltan Singh v. Pragh Narain and another. He also referred to the case of Labh Singh v. Kher Singh.
15. This case was considered in the above-mentioned decision by this Court. So far as the other decisions are concerned, they are distinguishable and are contrary to the view taken by this Court.
16. After carefully considering the authorities cited by the learned counsel for the parties, I am of the opinion that in the present case, the respondents were not right in giving up the claim in respect of Khasra No. 620 and claiming partial pre--emption. By doing so, the suit has become defective and the learned Additional District Judge was perfectly justified in holding that the suit suffered from the defect of partial pre-emption.
17. As a last resort, Raja Said Akbar Khan, learned counsel for the respondents, contended that the statement made by the counsel on the 20th December 1956, was made at the instance of the trial Court and it is not binding on the appellants. In support of his contention, he relied on H. Clark (Doncaster) Ltd. v. Vilkinson ((1965) 1 A E R 934) and Shahzadi Sharaf Sultan and another v. Brig.
18. Shahzada Sher Muhammad Jan (PLD 1963 Lah. 606). It was held in the English case that an admission made by counsel in the course of interlocutory proceedings could be withdrawn, unless the circumstances were such as to give rise to an estoppel. In the case of Shahzadi Sharaf Sultan, it was held that there can be no estoppel against law nor can the admission of a party validate a transaction, which is otherwise legally invalid. Both these decisions are, distinguishable and have no application on the facts of the present case. In the present case, the respondents have not challenged the authority of their counsel to make the statement dated the 20th December 1956.
19. The power of attorney given to the counsel authorises him to make statement on behalf of the respondents. The statement in question was made with open eyes and it cannot be allowed t-- be withdrawn at this stage. This contention, therefore, is repelled.
20. MUHAMMAD YAQUB ALI, ACTG. C. J.-I agree.
21. SALAHUDDIN AHMED, J.---I agree.
22. ANWARUL HAQ, J.--I agree.
23. MUHAMMAD Gul, J.-I agree.