These appeals have arisen in somewhat similar circumstances. Since the legal and factual controversies involved are exactly the same therefore, the learned counsel for parties addressed arguments in R.S.A. No.156 of 1987 alone and only pointed out the points of distinction in the other case.
R.SA. No.156 of 1987 In this appeal the respondents Nos. 2 to 4 purchased share of Sher Muhammad, vendor from land comprising of 15 joint khatas and in terms of area equal to 142 kanals 13 marlas, situated in Mauza Dakhli Hamza Wah,Tehsil Alipur, District Muzaffargarh, for a total consideration of Rs.23,600. The sale was witnessed by mutation No.2081 dated 18-12-1973. The petitioners filed a suit to pre-empt this sale.
R.S.A. No. 157 of 1987 In this appeal the respondents Nos. 2 to 4 purchased share of land of Mst. Alam Khatoon (sister of the vendor in appeal No.156 of 1987) comprising of 15 joint khatas in terms of area equal to 37 kanals 6 marlas situated m Mauza Dakhli Hamza Wah,Tehsil Alipur, District Muzaffargarh, for a total consideration of Rs.6,400. The sale was witnessed by Mutation No.2082 dated 28--12-1973.
2. These were the only points of distinction. The respondents Nos. 2 to 4 further transferred the land to respondent No.l in recognition of his superior right of pre-emption. The land was transferred through Mutation No.2202 dated 14-12-1974. In the meanwhile the appellant has sought to pre- empt the original sale in favour of respondents Nos. 2 to 4 through two separate suits filed on 13- -12-1974. The appellant after coming to know of the second transaction proceeded to implead the respondent No.l as defendant No.4 to the suits. The defendants contested the suits. The trial Court framed issues, recorded evidence and after hearing the arguments, decreed the suits vide judgment and decree dated 5-6--1986. The respondent No.l feeling aggrieved impugned these decisions of trial Court through two separate appeals in the Court of District Judge, Muzaffargarh.
The appeals were entrusted to Mr.Lkram-ud-Din, the then Addl. District Judge, Muzaffargarh, who after hearing the arguments proceeded to accept both the appeals vide judgment and decree dated 27-4-1987. The result was that the suits of appellants were dismissed. The appellant in this background filed the present appeals.
3. Heard parties. The learned counsel for appellants in support of the appeal has raised the following points:-- Firstly, that the transfer by respondents Nos. 2 to 4 in favour of respondent No.l was hit by doctrine of lis pendens, therefore, that was subject to the result of the suit already filed by the appellant; Secondly, that sale was not in recognition of superior right of respondent No.l, therefore, the second vendee could not have defended the suit; Thirdly, that respondent No.l was tenant of portion of Khata No.435 alone. It is added that Khata measured in all is 77,916 marlas whereas the respondent No.l was tenant to the extent of only 1,097 marlas which is equal to 54 kanals 17 marlas. It is concluded that respondent No.l could have defended the suit proportionately and the suit of appellant was bound to be decreed partially.
4. The learned counsel in this behalf has referred to Fetch Khan v. Abdul Rehman 1983 SCMR 293; Muhammad Ali v. Muhammad Sharif 1989 SCMR 796; Anwer Ali and 4 others v. Hayat 1989 SCMR 821; Lal Khan v. Faiz Ahmad and another 1986 SCMR 1962, PLD 1982 SC 159 and PLD 1985 Lah. 489.
5. On the other hand, learned counsel for respondents has raised preliminary objection to the effect that the appeals are time-barred by one day. On merits it was argued that the doctrine of lis pendens is not applicable and the sale in favour of respondents was in recognition of superior right of pre-emption as is clear from column 15 of mutation of sale in his favour. It is added that even otherwise principle of lis pendens will not be applicable because mutation was entered on first of December, 1974. The statements were recorded on 12-12-1974 when the respondents Nos. 2 to 4 admitted having sold the land to respondent No.l, therefore, the sanction on 14-12-1974 was a mere formality. The learned counsel in support of the arguments has referred to the case reported as PLD 1961 Baghdad-ul-Jadeed 34. In reply to the arguments that the respondent No.l could retain the whole land, it was argued that the second sale in his favour was in recognition of superior right of pre-emption therefore, it was protected and the suit was not competent. The learned counsel in support of the proposition has relied on the cases reported as PLD 1954 Lahore 541 and AIR 1938 Lahore 242.
6 The learned counsel for the appellant in reply to the last mentioned argument of the learned counsel for the respondents has argued that the sale is not protected but the second vendee can defend the suit. In this behalf the learned counsel for the appellant has referred to the case of Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171)
7. Now I proceed to deal with the arguments of learned counsel for the appellant with reference to the counter arguments on the other side, law and precedents. The first argument was two-fold. The argument in nutshell was that since the respondents 2 to 4 resold the suit land during the pendency of the suit, therefore, the doctrine of lis pendens will apply and transfer will be subject to result of the suit. The precise question for determination is whether doctrine of lis pendens is applicable in pre-emption suits and particularly to the present matter? It is clear from the mutation of re-sale in favour of respondent No.l that it was entered on 1-12-1974 and statements of respondents 2 to 4 admitting the sale were recorded on 12-12-1974. While according to law the sale of land shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation was entered in the Revenue record and was', sanctioned, therefore, in this case re-sale will be deemed to have taken place on 1-12-1974 and in any case on 12-12-1974.
Whereas the suit was filed on 13-12--1974, therefore, the principles of lis pendens was not applicable to the present case. In this behalf reference can be made to the judgment in case of Jangi v. Jhanda and others PLD 1961 BJ 34. This is not all The doctrine of lis pendens applies to pre-emption as well but it does not affect the validity of the sale made by the vendee during the pendency of the suit possessing a superior or equal right of pre-emption to that of the pre-emptor. This, of course, is subject to following important conditions:- Firstly, the transaction of re-sale takes place within the period of limitation prescribed for filing the suit for pre-emption ; and Secondly, the transaction is genuine. 1t does not in fact create any new rights. It only encourages the settlement of claim without intervention of the Court. In this behalf reference can be made to the case Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lahore 171. The relevant portion of the judgment reads as under:- "15. Although, at one time there was a considerable divergence of opinion, but the view seems to have prevailed that the pre-existing rights of a subsequent vendee during the suit, are not adversely affected and hit by the rule of lis pendens."
From whatever angle we look at the matter, there is no merit in the arguments of the learned counsel for the appellant.
8. The next argument was that respondents Nos. 2 to 4 did not transfer the suit land in favour of respondent No.l in recognition of his superior right of pre--emption. It is clear from Column 15 of mutation of re-sale that the land was sold to respondent No.l in recognition of his superior right of pre-emption.
9 Even otherwise if it is not said in so many words still the resale will be considered in recognition of the superior right. In this behalf reference can be made to the judgment of Din Muhammad, J. In the case of Pandit Harbhagwan Das v. Sardar Partab Singh, AIR 1938 Lahore 242. The relevant portion reads as under:- "I am unable to distinguish between cases where the re-sale takes place in exercise of a pre- emptive right and those where the re-sale takes place without any assertion of his right by the subsequent vendee, because in my view the effect in both cases is the same, that is the purchase of the land in suit by person possessing aright equal or superior to that of the pre-emptor and, in these circumstances, the fact that the purchase takes place in assertion of the right or otherwise is immaterial."
While in the case of Muhammad Din v. Muhammad Aslam PLD 1954 Lahore 541, this Court held as under:- "Where the vendee amicably agrees to transfer the property purchased by him to a person enticed to pre-empt that purchase, it is not required by any provision in the Pre-emption Act that in such a case the pre--emptor can take the property only after having asserted and exercised his right of pre-emption. Obviously, when a person conveys the land to another person who is entitled to it, the conveyance must be presumed to have been made in recognition of that right."
The result is that there is no merit in this part of the arguments of the learned counsel for appellant too.
10. This brings us to the last point. 1t was argued on behalf of the appellant that the share of the land sold comprised 15 joint Khatas while the respondent No.l was a tenant in khata No.435 which measured in all 77916 and out of this the respondent No.l was tenant only for area to the extent of 1,097 marlas. Therefore, he will be entitled to decree in the proportion of the land purchased by him from this Khata to the total area of khata as held by the Hon'ble Supreme Court in the case of Fateh Khan and reiterated in the case of Anwar Ali and 4others.
11. On the other hand, as already noted above the learned counsel for respondent maintained that since resale was made in recognition of superior right of the respondent No.l, therefore the re-sale was protected and the suit was liable to be dismissed as a whole. The argument of the learned counsel for the respondent that the resale was protected and the suit of the appellant was rendered incompetent is legally a misconceived argument. The second vendee could not get a better right than his vendor. The only difference is that he can resist the suit on the basis of his own superior qualification. The sale remains pre---emptible but while judging the superior right, the rights of pre-emptor and second vendee are to be seen. The learned counsel in this behalf has again referred to the case of Mughal v. Jalal and others 69 PR 1898.The relevant portion of which has been noted m the judgment of Fateh Bibi reads as under:- "The fact that at one stage a stranger had a share in the bargain cannot, in our opinion be held to vitiate the right of the three persons who are now vendees, and resist plaintiffs claim with one that is not inferior to his. It cannot be properly contended that Karam Chand merely took the position of the stranger in the bargain and can claim a better right than that derived from him. The position that he took was by virtue of his right as a pre-emptor to whose superior right the stranger had yielded. Nor is there any force in the contention that the two original vendees who remained in waived their right as against the plaintiff by having admitted a stranger. No doubt plaintiff obtained a cause of action against the three original vendees on the first sale, but the same may be said where there is a sale to a single stranger vendee who subsequently transfers to a person having an equal right with the plaintiff. To admit the argument which is sought to found on that would be to strike at the root of the principle on which the decisions of this Court are founded."
While in the case of Fateh Bibi, it was held:- "However, the main question that remains to be considered is about legal effect of the onward re- sale of the land in dispute by Abdul Rahim defendant No.3, Ali Nawaz defendant No.5 and Allah Dad defendant No.4 by means of Mutations Nos.654, 655 and 657 attested on the 17th April, 1967, after the institution of this suit, in favour of Mst. Fateh Bibi, the appellant. It is proved from the evidence that the appellant was an owner m the estate m her own right and it was contended before us that she had purchased this land in dispute in assertion of her superior right of pre-emption, within time, against all the defendants and that as such she was in a position to successfully resist this suit brought by plaintiffs-- respondents Nos.l and 2."
It is, therefore, clear that the sale is not protected while defending the pre--emption suit. Second vendee can plead and prove his superior right.
12. The next question which arises for determination is whether the suit should be dismissed in its entirety or it should be partially decreed? I find no 1 difficulty to conclude, of course, in view of the judgments of Hon'ble Supreme Court referred to above, to conclude that respondent No.l can defend the suit and retain the land in the same proportion which the land purchased has to the total area of this Khata. Now I take up the appeal separately to work out the area,) which can be retained by respondent No.l.
R.S.A 156/87.
Area of khata No.435. 77,91.6 marlas. Area purchased. 2853 marlas. Area with the respondent No.l as a tenant in this khata 1,097 marlas. This way the respondent No.l purchased 1/27 share of the khata.
Therefore, he can retain 1/27 share of the land with him in the khata as a tenant. The same comes to 41 marlas. R.S.A.157/8T Area of khata No.435. 77,916 marlas. Area purchased. 275 marlas. Area with the respondent No.l as a tenant in this khata 1,097 marlas.
This way the respondent No.l purchased 1/283 share of the Khata. Therefore, he can retain 1/283 share of the land with him in this khata as a tenant. The same comes to 4 marlas.
13. The respondent No.l has no superior right vis-a-vis appellant for the remaining khatas, therefore, he cannot successfully resist, the claim of the appellant-plaintiff.
14. The upshot of this discussion is that this appeal is allowed, judgment and decree of the lower appellate Court are set-aside while that of the trial Court are modified to the extent indicated in the last para. The result is that the suits of the appellant will be decreed except for an area of 41 marlas and 4 marlas in both the suits respectively. There is, however, no order as to costs.