ABDUL WAHEED, J.--Mst. Fateh Bibi has filed this appeal from the judgment and decree passed by the Civil Judge 1st Class, Sargodha on 21st of May, 1983 whereby her suit for possession by pre- emption was dismissed partially.
2. Two parcels of land, one measuring 306 Kanals and the other 257 Kanals and 5 Marlas, comprising different Khasras, situate in Mauza Jura Sakasar, Tchsil and District Sargodha were sold by Mst. Malkani Bhag Bhari, the owner, to Mst. Malkani Mussarrat Begum, respondent No.2 and Haji Sawal Khan, respondent No.1 respectively, each for Rs.2,50,000. Subsequently Haji Sawal Khan, respondent No.1 sold the land purchased by him to respondents No.3 and 4 in recognition of their right of pre-emption on the ground that they were in possession thereof as tenants.
3. Mst. Fateh Bibi, the appellant, instituted one suit to pre-empt the sale of the entire land claiming her right of pre-emption on the grounds of being the daughter of the sister of the vendor, a co- sharer in the Khata and a co-owner in the mauza. She also asserted that the land had been sold for Rs.2,50,000.
4. The respondents in their written statement contested the suit denying that the appellant possessed right of pre-emption and that the land was sold for Rs.2,50,000. They averred that the land had been sold for Rs.5,00,000.
5. On 29th of April, 1981, learned counsel for the respondents made a joint statement conceding that the appellant was the daughter of the sister of the vendor. Mst. Malkani Musarrat Begum, respondent No.2, is the daughter of the appellant. Since there was no dispute as regards the superiority of the right of pre-emption of the appellant qua her, the suit was decreed against her on payment of Rs.2,50,000 which too was not assailed at the trial.
6. The suit of the appellant in respect of land measuring 257 Kanals and 5 Marlas sold to Haji Sawal Khan, respondent No.1 subsequently to Muhammad Mumtaz and Muhammad Khan, respondents No.3 and 4 was dismissed in view of the finding that respondents No. 3 and 4 were in possession thereof as tenants and against them the appellant did not possess preferential right of pre- emption. Hence this appeal.
7. As already mentioned above, the appellant seeks to pre-empt the sale on the grounds of bang
(i) a collateral, (ii) a co-sharer in the Khata and (iii) a co---owner in the estate. According to the judgments of the Supreme Court in Government of N.W.-F.P. Through Secretary Law Department v.
Malik Said Kamal Shah PLD 1986 SC 360 and Sardar A.I and others v. Muhammad A.I and others PLD 1988 SC 287 grounds (i) and (ii) do not ensure after 31st of July, 1986 and ground (iii) is of no avail as there in no assertion in the plaint that "Talabs" were made in the mode recognized by Islamic Jurisprudence. In view of these pronouncements, this appeal fails. It is, therefore, unnecessary to adjudicate upon the factual controversies.
8. Accordingly, this appeal is dismissed leaving the parties to bear their own costs.
ABAID ULLAH KHAN, J.--I am in respectful agreement with my learned brother, Sheikh Abdul Waheed, J., that the appeal should be dismissed. However, in order to deal with the arguments addressed at the bar it seems desirable to state facts of the case in some detail. Malkani Bhag Bhari, wife of Brigadier Malik Gul Sher Khan Noon, conveyed by sale 578-1/4 Kanals of the land, situated in the area of village Jaura Sakesar, Tehsil and District Sargodha to Haji Sawal Khan, respondent 1 and Malkani Mussarrat Begum respondent 2. The vendress and the vendees accorded recognition to the transfer through the arbitration award (copies Exh.Pl and D1) announced by Fateh Muhammad on the 24th January, 1975. According to the award Malkani Bhag Bhari had sold 257-1 /4 Kanals of land comprising killa No.25 of Square No.77, Killas Nos. 5, 6, 15, 16, 24 and 25 of Square No.93, Killas Nos. 1, 10, 11, 12, 19, 20, 21 and 22 of Square No.94, Killa No.1 of Square No.95, Killas Nos. 1 to 5, 6/2, 7 to 10,13, 14 and 15/1 of Square No.96 to Haji Sawal Khan, respondent 1, for Rs.2,50,000 and 306 Kanals (actually it is 321 Kanals) of another parcel of land whose details are set out in the award, to Malkani Mussarrat Begum, respondent 2, for Rs.2,50,000. It may be relevant to mention that Malkani Bhag Bhari had acquired the aforesaid 257-1/4 Kanals of land, which she had alienated to respondent 1, through exchange from Muhammad Hayat (father of respondent 3) and Dost Muhammad (father of respondent 4) whom she had made over her own 285 Kanals of land and Mutation No.308 (copies Exhs. D.7 and R.W.5/1) in respect of the exchange was entered on the 15th and sanctioned on the 22nd December, 1974.
2. Malkani Bhag Bhari expired on the 23rd February, 1975. Therefore, in the application (copies Exhs.
P. 2 and D. 3) under section 14 of the Arbitration Act, 1910, for getting the award made rule of the Court moved by respondent." Nos.1 and 2, the heirs of Malkani Bhag Bhari, namely, Mst. Zeenat Begum, Brigadier Gul Sher Khan Noon and Malik Farooq Ahmad Khan, were impleaded as respondents. It was reiterated in the application that Malkani Bhag Bhari had sold 257-1/4 Kanals of land to respondent 1 for Rs.2,50,000 and the other parcel of land measuring 306 (in fact 321 Kanals) to respondent 2 for Rs.2,50,000. The heirs of Malkani Bhag Bhari did not put up contest to the application and consequently decree in terms of the award was passed by the learned Civil Judge, Sargodha on the 31st July, 1975. Exh.D.2 is the copy of the decree.
3. In consequence of the above decree, mutation of transfer of the two parcels of land was attested in the names of respondents 1 and 2. Nevertheless, the mutation was subsequently cancelled and mutation of inheritance to the landed estate of Malkani Bhag Bhari was sanctioned in favour of Mst.
Zeenat Begum, Malik Farooq Ahmad Khan, Malik Fateh Muhammad Khan and Malik Abdul A.I Khan.
Respondents Nos.1 and 2 had to institute suit on the 30th April, 1977, for getting themselves declared owners and in possession of the land on the basis of sale made by Malkani Bhag Bhari in their favour. Mst. Zeenat Begum and other defendants in the suit confessed judgment and the suit was decreed on the 25th May, 1977. Exh.D.6 is the copy of the decree passed in the suit: Respondent 1 was declared to be owner and in possession of 257-1/4 Kanals of land and respondent 2 owner and in possession of 321 Kanals of land.
4. Out of 257-1/4 Kanals of land which he had purchased from Malkani Bhag Bhari, respondent 1 sold away 139-1/4 Kanals of land bearing Square No.93 Killas Nos.16, 24-min, 25 Square No.96, Killas Nos. 1 to 5, 6-min, 7 to 10, 13, 14 and 15-min to respondent 3, Muhammad Mumtaz, son of Muhammad Hayat, for a sum of Rs.2,25,000 and the rest of 118 Kanals of land entered in Square No.75, Killa No.25, Square No.93 Killas Nos. 5,6,15, Square No.94 Killas Nos. 1, 10, 11, 12, 19 to 22, Square No.95, killa No.1, he transferred by sale to respondent No.4, Muhammad Khan son of Dost Muhammad, for a consideration of Rs.1,50,000. These alienations were confirmed by the arbitration award given by Mehr Muhammad Yar on the 13th June, 1977, which was later on made rule of the Court and decree in terms thereof was passed on the 27th July, 1977. Exhs. D5 and D6 are copies of the award and decree, respectively.
5. Mst. Fateh Bibi, the appellant, who is sister's daughter of the vendress, the late Malkani Bhag Bhari, and mother of respondent 2, Malkani Mussarrat Begum, instituted suit against respondents 1 and 2 on the 14th June, 1979, for possession by pre-emption of 578-1/4 Kanals of land. She claimed superiority of pre-emptive right on the basis of being heir of the vendress and owner of the estate wherein the land lay which qualifications, according to her were not possessed by the vendees. She averred that the sale had taken place for Rs.2,50,000.
6. Respondent 1 came up with the plea that he had sold 257-1/4 Kanals of land to respondents 3 and 4 in recognition of their superior right of pre-emption because the land comprised in their tenancy. Respondents 3 and 4, after being impleaded as defendants, contended that they had been tenants of the land since after the end of Kharif crop of 1974, and asserting their better right of pre--emption they had demanded of respondent 1 to sell the land to them against the price which he had paid to Malkani Bhag Bhari. They maintained that respondent 1 had conveyed the land to them and they had paid him the price. The sale transaction was given effect to, as already mentioned above, by the decree of the Civil Court dated 27th July, 1977. Respondents 1, 3 and 4 clarified that it actuality respondent 1 had paid Rs.4,00,000 as sale consideration to Malkani Bhag Bhari but price of Rs.2,50,000 had been entered in the award simply to lessen the burden of other expenses payable on account of sale. They denied the preferential pre-emption right of the appellant.
7. Respondent 2 did not admit the superior pre-emptive right of the appellant. She pleaded that the sale of the entire land in dispute had taken place for Rs.50,00,000 and not for Rs.2,50,000 as alleged by the appellant.
8. The respondents, during the course of trial of the suit, admitted that the appellant was the sister's daughter of Malkani Bhag Bhari. Respondents 1, 3 and 4 are not related to the vendress though they have been found by the learned Court to be in occupation of 257-1/4 Kanals of land as tenants since before its sale by Malkani Bhag Bhari to respondent 1. Therefore, the learned trial Court held that though the appellant enjoyed right of pre-emption superior to that of respondent 2 her right as against that of respondents 3 and 4 was inferior. Consequently the appellant's suit for recovery of possession of 321 Kanals of land (purchased by respondent No.2) was decreed on payment of Rs.2,50,000 but her suit in respect of 257-1/4 kanals of land (purchased by respondent 1 and repurchased from him by respondents 3 and 4) was dismissed. The appellant has impugned in appeal before this Court the dismissal of her suit touching 257-1/4 kanals of land.
9. The learned trial Court heavily banked upon the entries of the Khasra Girdawari register (copies Exh.D8 and D12) mentioning respondents 3 and 4 as tenants of 257-1/4 kanals of land to hold that the said land comprised in their tenancy and, therefore, they enjoyed preferential pre-emptive right as against the appellant. They were entered as tenants in the Khasra Girdawari register by the order of the Tehsildar of Sargodha, dated the 23rd April, 1975, directing correction of entries of register. The appellant contended before this Court that no such order was ever passed by the Tehsildar and that the note ill the khasra Girdawari register referring to the order was no more than a piece of forgery. For establishing the fake nature of the order the appellant moved this Court for permission to adduce additional evidence. The point whether the Tehsildar had passed the order directing correction of the entries of the register recording respondents 3 and 4 to be in occupation of the land in dispute as tenants being crucial for the determination of the controversy touching the status of respondents 3 and 4 vis-a-vis the land in dispute and the ascertainment of true position regarding the order being essential for the pronouncement of judgment the appellant was allowed to produce additional evidence by the order of this Court dated 19th March, 1988. The respondents were given opportunity to adduce evidence in rebuttal. As directed by this Court the learned trial Court received the evidence so produced.
10. Muhammad Mumtaz, respondent 3, while appearing as R.W. 9, explained how respondents 3 and 4 had come to be inducted as tenants over 257--1 /4 kanals of the land in dispute. According to him, they (Muhammad Hayat and Dost Muhammad) cultivated (257-1/4 kanals of) the land in dispute but the land (285 kanals) given by Malkani Bhag Bhari to his father (Muhammad Hayat) and uncle (Dust Muhammad) in exchange for their 257-1/4 \kanals of land in dispute was occupied by tenants whose possession was not got vacated and, therefore, it as stipulated that respondents 3 and 4 would be entered as tenants of the aforesaid 257-1/4 Kanals of land and they would cultivate the same. Accordingly, is he bore out, respondents 3 and 4 their fathers made applications, with the consent of Brigadier Malik Gul Sher Khan Noon, mukhtar-i-aam of his wife, Malkani Bhag Bhari, for correction of the entries of the Khasra Girdawari register. He added that the Tehsildar, after hearing them and Brigadier Malik Gul Sher Khan Noon, mukhtar-i-aam of his wife, Malkani Bhag Bhari and after inspecting the spot and making necessary inquiry, had ordered that respondents 3 and 4 entered as tenants in the khasra girdawari register. He mentioned that Patwari of Jaura Sakesar circle was under suspension and, therefore, nobody attended to his duties and no entry was made in the roznamcha waqaiti for a month, from the 4th February to 5th March, 1975.
11. Unfortunately none of the applications made on 26th October, 1974, by respondents 3 and 4 their fathers seeking correction of the entries of the Khasra girdawari register so as to incorporate the name of respondents 3 and 4 as tenants of the disputed land and orders passed thereon by the Tehsildar were traceable. Nevertheless, there is positive evidence on the record indicating that such applications were made, order for correcting entries of Khasra Girdawari register was passed by Revenue Officer and the order was executed by the revenue staff. Qazi Noor Elahi, Petition-writer, Sargodha, R.W.8, who drafted the applications, bore out with reference to entries of his register, whose copies are Exhs. R.W.8/1, R.W.8/2 and R.W.8/3, that he had scribed the applications at the instance of respondents 3 and 4 and their fathers. One application (copy of the entries of the register, Exh. R.W.8/1) was made by Muhammad Hayat and Dost Muhammad stating that their sons, Muhammad Mumtaz (respondent 3) and Muhammad Khan (respondent 4), had been cultivating the land in dispute, whose particulars were set out in details, as tenants under Malkani Bhag Bhari since after Kharif crop of 1974 and praying that the existing entry with regard to their self cultivation in the Khasra Girdawari register be excised and instead entry of respondents 3 and 4 cultivating the land as tenants under Malkani Bagh Bhari be made. Reference was made to the acceptance by Brigadier Malik Gul Sher Khan Noon, mukhtar-i-aam of Malkani Bhag Bhari, of their condition of entering respondents 3 and 4 as tenants of the land in the Khasra Girdawari register.
12. In the application (copy of the entries of the register, Exh. P.W.8/2) made by Muhammad Mumtaz, respondent 3, it was averred that he had started cultivating the land as tenant since after kharif crop of 1974, with the permission of Brigadier Malik Gul Sher Khan Noon, mukhtar-i-aam of Malkani Bhag Bhari and requested that the entry of the khasra girdawari register be corrected so as to Substitute his name as tenant in place of Muhammad Hayat and Doss Muhammad. For similar reasons Muhammad Khan, respondent 4, sought correction through application (copy of the entries of the register, Exh. P.W.8/3) of the entries of the khasra girdawari register with the object of getting himself entered as tenant in place of Muhammad Hayat and Dost Muhammad of the land which he had purchased from respondent 1.
13. Syed Tabarrak Hussain Shah, R.W.5, the then Tehsildar of Sargodha, confirmed having ordered correction of the khasra girdawari register. He had sanctioned Mutation No.308 (Copies Exhs. D7 and R.W.5/1) of exchange of 257--1/4 kanals of the land in dispute with that of Malkani Bhag Bhari's 285 kanals of land. As he bore out he knew Brigadier Malik Gul Sher Khan Noon, respondent 3 and 4 and their fathers. Abdul Majid, the then Patwari of Jaura Sakesar circle, R.W.3, carried out the order of the Tehsildar passed on the applications of respondents 3 and 4 and entered their names as tenants in place of Muhammad Hayat and Dost Muhammad beginning with Rabi crop of 1975, in the khasra girdawari register. The corresponding entries were made in the roznamcha waqiati on the 4th May, 1975. Exhs. R.W.2/3 and R.W.2/4 arc the copies of the roznamcha waqiati in this behalf.
From the statements of Bashir Ahmad Dar, Reader to the Tehsildar, P.W.4, and Shah Muhammad, Naib-Qasid, Tehsil Sargodha, R.W.1 and the perusal of the entries of the desk bahi (copies Exhs.
P.W.1/1 and R.W.4/1) it is evident that the application of Muhammad Hayat and Dost Muhammad for correction of entries of Khasra Girdawari register passed between the offices of Tehsildar and Qanungo. In face of the aforementioned evidence it may be safely concluded, despite non- availability of the original applications and orders thereon, that correction of the khasra girdawari register was made under the orders of the Tehsildar who was of course competent to snake such orders. Being mukhtar-i-aam of Mulkani Bhag Bhari, Brigadier Malik Gul Sher Khan Noon had the authority to accept respondents 3 and 4 as tenants of the land of Malkani Bhag Bhari in place of their fathers who were also willing to respondents 3 and 4 being put in possession of the land as tenants. In the circumstances respondents 3 and 4 can safely be regarded to be in occupation of the land as tenants right from Rabi 1975. The learned counsel for the appellant, drawing distinction between entering of the names of respondents 3 and 4 as tenants in the khasra girdawari register and their being actually tenants of the land, contended that by merely writing their names in the khasra girdawari register as tenants did not render the land in dispute to comprise in their tenancy.
From the above narration of the evidence and circumstances leading to the correction of entries in the khasra girdawari register it transpires that Brigadier Malik Gul Sher Khan Noon, as mukhtar-i- aam of Malkani Bhag Bhari, had accepted respondents 3 and 4 to be tenants of the land in question. Such acceptance by the owner of the land would no doubt create tenancy in their favour and they could to all intents and purposesregarded and treated as' tenants of the land. Their right of pre-emption, as tenants, was, as provided by para 25(3)(d) of the Land Reforms Regulation 1972, indisputably superior to that I of appellant. The appellant's suit as against them could not succeed and was t rightly dismissed.
14. Even if it were to be assumed that the land did not comprise in the tenancy of respondents 3 and 4 the appellant's suit as against them, in view of the law enunciated by the Supreme Court of Pakistan in Sardar A.I v. Muhammad A.I' PLD 1988 SC 2237 and further explained in, inter alia, Ghulam Qadir v. Nawab; Din PLD 1988 SC 701, cannot succeed because no decree regarding 321 kanals of land was passed before the 31st July, 1986. It need hardly be stressed, and this is apparent even from the statement of the appellant's son and attorney, Mauls Dad, P.W.1, that the sale of 257- 1/4 kanals of land effected by Malkani Bhag: Bhari in favour of respondent 1 was a transaction distinct and different from the sale of another piece of 321 kanals of land made to respondent 2.
The two' transactions cannot be lumped together and jumbled up into one alienation for; the purpose of reaping any advantage out of the decree passed in respect of 321 1 kanals of land before the 31st July, 1996.
15. The learned counsel for the appellant offered his views touching the law laid down by the Supreme Court of Pakistan in Sardar A.I's cast: in writing and desired that they might be incorporated in the judgment. The written formulation of his views runs as under.
'The Supreme Court in the case of Sardar A.I v. Muhammad A.I PLD 1988 SC 287 has formulated specifically seven questions, which are answered in the light of Supreme Court judgment 4e. PLD 1986 SC 360. The questions stand formulated at page 310 of the said report. In terms of paragraph (64 of the judgment of M.A. Zullah, J, page 344), these formulations are in relation to the situation that has arisen, or that might arise. Clearly, the situations that stood arisen, the judgment is conclusive. However, in relation to situations that might arise, it is enumerative of possibilities, that occurred, and not of all situations that might arise.
The situation of the present case is that Mst. Fateh Bibi seeks to pre-empt the sale in favour of Sawal on the basis of then existing law. This was also the claim against the defendant Malkani Mussarrat Begum. In both the cases the right of Malkani Fateh Bibi as the preferential right to pre- empt the sale is found by the trial Court The suit against the defendant Mussarret Begum is decreed. The finding of preferential right against Sawal, however, is made subject to any other finding, namely that the suit properties stood sold to Mumtaz and Muhammad Khan m recognition of their superior right of pre-emption.
It is respectfully submitted that decree is the adjudication and the formal expression. It is preceded by the judgment. The content, nature and extent of the right is determined/decided in the judgment that proceeds the decree. In the seven questions that pertain to the decrees the Supreme Court has merely given effect to the finding that in case a finding is made in favour of the pre-emptor (qua the right to pre--emption) then even if the same is remanded back, the pre- emptor has the right to defend the same. The basic question therefore, is and shall remain as answered by the Supreme Court, because throughout the judgment of the Supreme Court is the existence, enforceability and extinction of right of pre-emption. And if the right to pre-empt existed, and is so incorporated in the judgment of Court of competent jurisdiction, then the right to defend the same follows. The pre-emptor in the instant case has been successful in pre-empting the sale against vendee Sawal. The second question, namely that Mumtaz and Khan, were reconveyed the suit property in recognition of their superior right to purchase is outside the purview of the Supreme Court judgment and the plaintiff pre-emptor, in case the trial Court or any Court has returned a finding in his favour prior to enforceability of new pre--emption law i.e. 31-7-1986, shall continue to have the right (as having accrued by virtue of the judgment on that issue in his favour) to defend that right.
The judgment of trial Court is in two parts (on two issues).
(a)Mst. Fateh Bibi, plaintiff pre-emptor, appellant has the superior right to pre-empt the sale as against the vendee defendant namely, Sawal.
(b)The right could not be formed a part of executable decree because the tenants defendants by virtue of another sale had superior right to purchase.
It is further to be noted that a decree partially in the instant case has been passed and all the rights accrued in the judgment that preceded the decree can on the strength of judgment of Supreme Court be protected.
The above position is completely in line in the third position set forth by Supreme Court at page 302 of the report which says.
"Some of the cases are remanded to the lower Court after the target date for fresh decision due to certain defects, after setting aside, the judgment and decrees (even those in favour of the plaintiffs) passed before the target date.
The right to protect, therefore, after the target date is not confined to the protection of favourable decrees in higher forums but the favourable (pre-emptor) finding, qua the right to pre-empt the sale against the defendant vendee, against whatever question.
This is further clarified by the observations of Mr. Justice Nasim Hasan Shah, J at page 354. .
"....The law is well-settled that where the rights have been judicially determined with reference to the terms of law m force -at the time of adjudication, merely because the law on the basis of which the decision was rendered has subsequently been changed ...."
Whatever weight the argument of the learned counsel for the appellant may carry and whatever merit it may have, this Court is bound to follow the law laid down by the Supreme Court according to which the appellant's suit in respect of 257-1/4 kanals of land must fail. Consequently the appeal should necessary follow suit.
M.Y.H./F-118/L Appeal dismissed