1. ' USMAN ALI SHAH, J.--This is an appeal by leave of the Court against the judgment of the Lahore High Court, Lahore, dated 27-10-1979, whereby regular second appeal of the appellants was dismissed.
2. ' Briefly stated, the facts of the case are that the defendants/ appellants herein purchased some land measuring 192 kanals 1 marla from one Ghulam Mohyud-Din, in village Bhatti Bango, Tehsil and District Gujranwala, by a registered deed dated 9-2-1966. As a result of consolidation, the said land was replaced with land measuring 187 kanals 9 marlas and allotted to the defendants/appellants. Prior to the consolidation proceedings, the plaintiff/ respondent herein brought a suit for possession of land through pre-emption in the Court of Administrative Civil Judge, Gujranwala on the plea that he was an owner of the land in the village and as such has a preferential right of pre-emption as against the appellants. It was also alleged that the actual sale price of the land fixed and paid was Rs,24,000 and Rs,27,000 shown in the deed was fictitious. The appellants/vendees contested the suit. The stand taken by them in their written statement was that they had purchased the land in equal shares and in this connection the price and other incidental charges were shared by them equally. The learned trial Judge on the pleadings of the parties framed contesting issues and recorded their evidence thereupon. On examination of the evidence and after hearing the parties, he decreed the suit in favour of the plaintiff/respondent, vide his judgment dated 2-5-1973.
3. ' The appellants filed appeal before the learned Additional District Judge, Gujranwala, which was dismissed, vide order dated 17-4-1979. Their 2nd Appeal before the Lahore High Court was also dismissed by the impugned judgment.
4. ' Leave to appeal was granted to the appellants to consider whether the doctrine of sinker was rightly applied in this case.
5. ' The learned counsel appearing irr support of this appeal submitted that the view taken by the Courts below, was erroneous in law inasmuch as the doctrine of sinker was wrongly applied to the case. He relied on the Supreme Court judgment in the case of 'Fazal Elahi v. Dewan Ali (deceased)
6. (represented by legal heirs) and others (1984 SCMR 1404). The head-note of the report conveys as if the doctrine of sinker is not enforceable in the Punjab and for that matter, a prospective pre- emptor cannot be allowed to agitate it in his favour against the defendants/vendees who have purchased the land jointly but one of them cannot defeat the pre-emptive right of the pre- emptors.
7. ' It will be seen that there is no provision in pre-emption law of Punjab bearing upon the principle of sinker. Notwithstanding this, however, the Courts in Punjab have invariably followed the law of sinker in pre-emption cases. In this connection there are a series of authorities of the Lahore High Court and it could suffice to refer to the following:-
(1) Bhagwana and others v. Shadi and ethers (AIR 1934 Lah.878). It was held that if a purchaser having equal right of pre-emption c associates with himself in the purchase a person with right inferior with that of the pre-emptor, he is not entitled to resist the claim of such pre-emptor even as to his share of the purchase.
(2) Manga v. Imam Din etc. (AIR 1933 Lah.117). It was held that a person with a superior right cannot resist the claim of a person with inferior right to pre-empt if he associates a stranger in the purchase by him.
(3) Hayat Bakhsh v. Mansabdar Khan and others (AIR 1935 La h.529) The policy of the Pre-emption Act is to keep out strangers to the estate in order to maintain its exclusiveness. If a vendee has an equal right of pre-emption but associates with himself a stranger in the purchase, he cannot thwart the attempt of a person possessing any degree of pre-emptive right.
(4) Thehoo Ram and others v. Dalip Singh and another (AIR 1953 Punjab 128). The plaintiff and the purchasers/defendants Nos.2-6 were collaterals of the vendor in equal degree. Sunkoo defendant No,7 was a stranger and defendants Nos.2-6 having associated Sunkoo with them, sank to the level of Sunkoo on the date of sale.
(5) Atta Muhammad v. Ahmad Bakhsh and 2 others (PLD 1971 Lah. 401). In this authority it is hold that it is now a well-settled law that a co-sharer by associating himself with a stranger is also relegated to an inferior position, making himself vulnerable to the exercise of right of pre-emption by another co-sharer who may otherwise be at par with him.
(6) In a recent judgment dated 20-3-1989 of this Court in the case of 'Maula Bakhsh and others v.
8. Muhammad Sharif PLD 1989 SC 278, the learned Judges repelled the arguments of the learned Counsel that the rule of sinker was not applicable in the Punjab to a vendee.
9. ' The principle laid down in all the above-noted cases clearly shows that the rule of sinker was acted upon by the Courts in Punjab for more than 56 years. The argument of the learned counsel for the appellants that the rule of sinker is not applicable in Punjab, therefore, does not hold water.
10. As the Courts in Punjab followed the doctrine of sinker as a matter of judicial precedent and as it has acquired the status of law in the dispensation of pre-emption cases, it will be regarded as a law to be followed by the Courts unless it is annulled by the act of legislation or it is in conflict with the law of 'Sharia'.
11. ' We may also take note of the judgment of this Court in the case of 'Fazal Elahi v. Dewan Ali' (1984 SCMR 1404) in which the learned Judges held that the law of sinker is not applicable to Punjab.
12. Seemingly, this view was taken because in the pre-emption law of Punjab, there is no provision incorporating the law of sinker but as for long years the Courts in Punjab have been applying the law of sinker in pre-emption cases where it is involved, we do not see any justification to depart from it and hold the contrary.
13. ' We have had a look at the judgment in the case of 'Fazal Elahi v. Dewan Ali'. It is clear that the various judgments in which the Punjab High Court and this Court applied the law of sinker in pre- emption cases were not brought to the notice of the Honourable Judges. Had their attention been drawn to the said judgments with k. Submission that the doctrine of sinker in pre-emption cases of Punjab has assumed the status of law which the Courts have followed, the decision in the case would have been different.
14. ' It will be seen that the very object of pre-emption law is to exclude the stranger with the purpose to preserve the integrity of the village community and to avoid further fragmentation of holdings and also to reduce the chances of litigations. A stranger means a person who has no right of pre- emption as compared with the plaintiff or co-vendees in a sale. Hence, the person with pre- emptive right joining a stranger with him in an indivisible sale offends against the basic principle of pre-emption, therefore, he sinks himself to the level of the stranger vendee and cannot be permitted to retain his share of property purchased by him.
15. ' Now in the present case, out of the two vendees one has the right of pre-emption to the suit land while the other appellant is a stranger and has no right of pre-emption whatever. This position is not controverted before us. The appellant purchased the suit land by means of one single sale- deed, therefore, they came into possession of the suit land jointly with common interest in it. The transaction was, therefore, obviously indivisible. Now as the appellant No,2 had the right of pre- emption, while the other did not have such right, the three Courts below rightly observed that the appellant No,2 by associating himself with a stranger was relegated to an inferior position, making him vulnerable to the exercise of right of pre-emption of the plaintiff/respondent who was otherwise at par with him. In this view of the matter, the position of the appellant No,2 is no more than appellant No,1 who has no right of pre-emption to the suit land.
16. ' Before the consolidation proceedings the erstwhile land was purchased by the appellants jointly by means of a single sale-deed, obviously with common intention to enjoy common interest in it. If this were not so, they would have purchased the land separately by two separate sale-deeds. As one appellant has no right of pre-emption to the suit land, the other appellant who had such right lost his-right of pre-emption by the principle of law of sinker.
17. ' The result is that this appeal has no force in it and is accordingly dismissed with costs.