AKHTAR HASSAN, J.--This judgment shall also dispose of Regular First Appeal No. 51 of 1986 as both these arise from the same decree dated the 2nd of January, 1986, passed by the learned Civil Judge 1st Class, Samundri, District Faisalabad, in a pre-emption case.
2. The sale in question was made by a registered deed dated the 7th of August, 1980, by the five vendors Manzoor Hussain Leghari, his wife Mst. Mukhtar Begum, his pre-deceased brother's son Ghulam Fareed and daughters Noor Ismat, Hat Noor and Farah Noor in favour of defendants Nos. 1 to 18 for an ostensible price of Rs. 25,50,000. Defendant No. 15 further sold his share in favour of defendants Nos. 20 and 21 on the 18th of December, 1980, while defendant No. 16 similarly sold his own share on the 14th of May, 1981, to defendant No. 19.
3. Sardar Ghulam Hassan Khan Leghari brought the suit to pre-empt it claiming himself to be the father of Manzoor Hussain Leghari, father-in-law of Mst. Mukhtar Begum, and paternal-grandfather of the other vendors. According to him, the vendees had no such qualification and had paid only a sum of Rs. 20,50,000 while the rest was fake. He died on the 25th of March, 1985, during pendency of the suit and his legal representatives, namely Shanaz Bibi, Farrukh Leghari, Saira Bibi and Sajjad Ahmad were brought on the record to maintain the suit.
4. Estoppel was pleaded against the original plaintiff indicating that he had "instigated" the vendees to purchase the land, negotiated its price, assured that it will not be pre-empted, and yet colluded with the vendors to bring the present suit for its pre-emption. His failure to deposit Zari Panjam in time and bar of limitation were taken up. Ostensible price was claimed to have been paid in good faith and additionally Rs. 5,61500 as cost of improvements and Rs. 2,00,000 as incidental charges were demanded. The contention of the present pre-emptors to be legal heirs of the deceased plaintiff or their right "to continue with the present case" was seriously disputed at least by defendants Nos. 16 and 19 in their separate written statement dated the 14th of July, 1985 (at page 161).
5. On these pleadings, the following issues were framed:--
(1) Whether the suit is time-barred? OPD
(2) Whether Zari Panjam, and security has not been deposited in time? If so, its effects? OPD
(3) Whether the suit is bad and is liable to be dismissed for partial pre---emption? PPD
(4) Whether the plaintiff is estopped to file the suit? OPD
(5) Whether the property in dispute has not been properly described in the plaint? 1f so, its effects?
OPD
(6) Whether the defendants have made improvements over the suit property? If so, its effects? OPD
(7) Whether the suit is collusive with the vendor, Mr. Manzoor Hussain Leghari? If so, its effects? OPD
(8) Whether the suit is barred by time against defendants Nos. 18 and 19? OPD
(9) Whether the suit is bad for non-joinder of necessary parties? OPD (9-A) Whether the defendants are entitled to get the costs of registration? If so, to what extent?
OPD
(10) Whether the plaintiffs have got superior right of pre-emption qua the defendants-vendees?
OPP
(11) Whether the sale price of Rs. 25,50,000 has been fixed in good faith or has been actually paid by the vendees? OPD.
(12)If issue No.11 is not proved, what was the market value of the suit property at the time of sale?
O.P. Parties.
(13) Relief.
6. The trial Court decreed the suit on payment of Rs. 24,90,000 turning down the vendees' claim of improvements or incidental charges. Consequently both the parties feeling aggrieved of the verdict preferred the present appeals.
7. The objection that the original pre-emptor was not an heir of his daughter-in-law Mukhtar Begum vendor was well-placed. This typical relationship did not make the former to inherit the latter m Personal Law. She was not shown to be otherwise agnatic ally related to him. This proposition was frankly conceded on behalf of the opposite sides His right to pre-empt even the share of other vendors was as well assailed on the ground of partial pre-emption, but we were really not persuaded to agree with it. No authority was cited in support of the contention. The pre- emptor could obviously confine his claim to t the share of the vendors whom he could in order of succession succeed. This is what section 15 of the Punjab Pre-emption Act provides. The corollary was that his claim qua the vendor he would not succeed in order of succession shall (' proportionately fail. The finding on the point accordingly shall have to be modified. Mukhtar Begum vendor had sold 1/4 of Khata 108 measuring 44t) Kanals 15 Marlas. It came to 111 Kanals 9 Marlas proportionatciy valued at Rs. 2,21,333. The suit could not succeed to that extent and correspondingly the price shall have to be rateably reduced. In other words, the suit succeeds to the extent of 1,148 Kanals 9 Marlas and the price therefore shall be Rs. 22,68,667.
8. The vendees next lukewarmly claimed the amount of Rs. 2,00,000 as incidental charges but their witness D.W. 8 disclosed that those expenses were paid by the vendors. f he sale-decd Exh. D.1 did not stipulate that these expense were to be borne by them and, therefore, they could not be reimbursed on that count. Nor did they press their claim for improvements presumably because they were conscious of lack of evidence to support thereof. The trial Court rightly held that they were entitled only to Rs. 24,90,000 after deducting the cost of the tubewell. The pre-emptors had nothing much to substantiate their objection to the ostensible payment. In fact, the finding returned by the trial Court on the point was conceptually accepted by them. Consequently the present appeal brought by them totally fails.
9. The other appeal (R.FA. No. 51/86) is, however, partly accepted and the impugned decree is modified to the extent that the pre-emptors shall get land only to the extent of 1,148 Kanals 9 Marlas for which they shall pay to the vendees Rs. 22,68,667 including the Zari Panjam. They shall deposit this sum for them in the trial Court by or before the 7th of September, 1989. Failing this deposit their suit shall stand dismissed. As regards the area sold by the vendor Mukhtar Begum measuring 111 Kanals 9 Marlas, the suit is dismissed.
H.B.T./S-462/L