1. ' Petition for civil revision is filed by the plaintiffs in Civil Suit No, 84 of 1980. Suit was dismissed on 20- 10-1986 by the trial Court. Appeal filed against this decision failed on 7-1-1989 in the Court of Additional District Judge, Jhelum.
2. ' Facts are brief and simple but the point of law involved is a little complex. A small plot of 9 marlas in area situated in the revenue estate of Jada, Tehsil Jhelum was owned by one Islam-ud-Din. On 30-9-1975, by an unregistered deed in writing, Islam-ud-Din agreed to sell the plot to Binyameen at the sale price of Rs, 6300. Out of the agreed sale price, Rs, 3,030 were paid to Islam-ud Din at the time of sale agreement and the balance sale price was agreed to be paid at the time of registration of the sale deed. No time was fixed between the parties to complete the sale. Under the sale agreement, possession of the plot was delivered to the proposed vendee who also constructed a house upon it. Receipt of advance payment, transfer of possession of the plot under the agreement and construction of the house upon the plot by the proposed vendee are the facts admitted in the agreement dated 30-9-1975.
3. ' Mohammad Rafique pre-empted above transaction and sued to enforce his preference. Pre- emption suit (Civil Suit No, 149 of 1976) was instituted on 26-7-1976. Binyameen contested the pre- emption suit. Trial Court decreed the suit in favour of pre-emptor on 5-12-1978 upon his paying Rs, 6,300 to Binyameen - by or before 23-1-1979 failing which pre-emption suit was to stand dismissed with costs. On appeal by Binyameen, decretal amount was enhanced to Rs, 9,300 which the decree-holder was required to deposit within two months i.e, before 4-1-1980. Terms of pre- emption decree were complied with and the decretal amount was deposited in the Court. It was not denied that decretal amount was withdrawn by Binyameen from the Court. Thereafter, decree- holder Mohammad Rafique sued out execution of the pre-emption decree and took actual possession of the property on 9-9-1981. Islam-ud-Din died on 21-4-1978. On 13-2-1980, his three sons Ghulam Rasool, Ghulam Nabi, Abdul Latif and a daughter Mst. Zubaida Begum brought a suit against Mohammad Rafique and Binyameen for avoidance of sale agreement dated 30-9-1975 and to recover Khas possession of the plot in dispute. In the alternative, plaintiff sued to recover Rs, 3,270 the outstanding balance sale price. Mohammad Shafique another son of Islam-udDin was impleaded as pro forina defendant No,3. It was averred that for noncompliance of an essential term as to payment of the balance sale price, sale agreement was rescinded and had come to an end; that the transaction concluded under agreement dated 30-9-1975 was not pre-emptible and consequent decrees passed by the Courts in the pre-emption suit brought by Mohammad Rafique against Binyameen were null and void; that the plaintiffs were entitled to recover possession of the plot delivered under the void decrees of the civil Court and in the alternative prayed to recover the outstanding balance sale price which was not paid by Binyameen to Islam-ud-Din. Binyameen defendant No,2 was proceeded against ex parte. Defendant No,3 conceded the claim set forth in the plaint. Defendant No,1 was the only contesting defendant who resisted the suit by controverting the material allegations in the plaint.
4. ' On pleadings, as many as 11 issues including relief were settled for determination by trial Court.
5. Upon examination of the evidence adduced in the suit, trial Court found against the plaintiffs and dismissed their suit. Their appeal also met with similar fate.
6. ' At the hearing, it is contended by Mr. Iftikhar Hussain Chaudhry, learned counsel for the petitioners that the agreement to sell was not equivalent to a completed sale. By itself, it did not transfer ownership rights. Therefore, transaction concluded in it was not pre-emptible. Upon the above premises, it was argued that Court decrees passed in the pre-emption suit did not invest the decree-holder with the legal status of the owner of the plot in dispute. Ownership rights still vested in the successors of Islam-ud-Din and as the sale agreement had come to an end, they were entitled to regain possession of the plot in dispute and in the alternative to get decree for the unpaid sale price. In support of the proposition that mere agreement to sell did not give rise to pre- emption, learned `counsel' relied upon the case of Syed Manzoor Hussain Shah v. Khurshid Ahmad and 4 others 1989 'CLC 1372.
7. ' Seen from the above, two points emerge for decision in the petition for civil revision. First point is whether in the stated circumstances, plaintiffs were entitled to recover possession of the plot in dispute from Mohammad Rafique who had taken it in execution of the pre-emption decree after paying the price for it and the second, whether plaintiffs were entitled to recover unpaid sale price and if so from whom. Having regard to what has been urged at the hearing and seeing the records, in my judgment, plaintiffs are not entitled to any assistance from the Court to claim relief against Mohammad Rafique decree-holder in the pre-emption suit. As said above, there is not much dispute about the facts in the case. From the date of sale agreement to his death on 21-4-1978, Islam-ud-Din did not claim any interest in the plot in the dispute. He neither intervened in the pre- emption suit nor claimed unpaid sale price from Binyameen or Mohammad Rafique. Pre-emption is right of substitution. In the result of successful assertion of pre-emption right, Mohammad Rafique shall be deemed to have been A substituted for Binyameen in the sale agreement.
8. Plaintiffs had clearly abandoned the claim for unpaid sale price at the trial of the suit. Even otherwise, there are strong indications on record to presume that the agreed sale price was paid by Binymeen to Islam-ud-Din in his lifetime. Had it not been so, in all probability, Islam-ud-Din would have laid claim for its' recovery in his lifetime. His silence for a long period spoke volumes against the claim now set forth in the plaint. From the ambient circumstances, it is not difficult to infer that Islam-ud-Din had totally denuded himself of ownership rights in the plot and invested them in Binyameen. His conduct in maintaining silence for a long period during which the construction was raised upon the plot by Mohammad Rafique can be explained upon the above premises only. In this view, no fault could be found with the preemption decree and legal results flowing therefrom. Further, upon the *existing records, no collusion could be ascribed to Mohammad Rafique decree-holder. At this stage, if the plaintiffs are permitted to dislodge the effect of pre-emption decree and to undo all that has been preformed under the aale agreement, it would be clearly inequitable and would tantamount to assisting the concealed fraud sought to be prepetrated by the plaintiffs. In somewhat similar circumstances, a Full Bench of Jammu and Kashmir High Court comprised of S. Murtaza Fazal Ali, CJ., J.N. Bhat and Jaswant Singh, JJ. In Ghulam Qadir and another v. Ghulam Hussain AIR 1973 Jammu and Kashmir 11 declined relif. In para. 7 of the decision at page 12, the Court observed: ' The only point that has been argued before us is whether the vendor had delivered possession of the property in dispute to the defendant and had received the entire consideration money and remained silent for a long period of 22 years, he will be estopped from recovering possession of the property, even apart from the question of adverse possession. It is true that the question of adverse possession in this case does not arise because there has been no refusal on the part of the proposed vendor to execute the sale-deed but we are rather impressed with the argument of the learned counsel for the appellant that as the plaintiff himself had given possession and received the entire consideration money, he cannot be allowed to take advantage of his own fraud, so as to recover possession from the defendants after such a long time. In Venkatesh Damodar v. Mallappa Bhimappa, ILR 46 Born. 722, 724, 726 = AIR 1922 Born. 9 (2) a Division Bench of the Bombay High Court, in almost similar circumstances, observed as follows:-- "The result is that Damodhar has agreed to sell the property to the first defendant who was then in possession, and had all along been in possession, since the time of the decree, and the defendant paid the pruchase price. It is quite true that the defendant has not got a sale-deed, and the time has passed within which he could have sued Damodar to get a sale-deed. But the equitable principles which should be applied to these facts are, in my opinion, perfectly clear." x x x x x x x x x x x x x x "That decision was based on the fiduciary aspect of the vendor's position and the impropriety of permitting him to succeed against his vendee in a suit for possession. That argument must also apply where the vendee in possession has allowed the time for filing a suit for specific performance to expire." Their Lordships relied on an earlier Full Bench decision of the same Court in Bapu Apaji v.
9. Kashinath, ILR 41 Bom. 438, 451, 452 =AIR 1916 Born. 1 (FB) where CJ., Scott speaking for the Full Bench observed as follows:-- "Once it is recognized that the plaintiff is violating his fiduciary obligation, it is clear that the Court cannot grant him the relief which he seeks, for it will not aid him in committing a breach of trust and his suit must fail; the defendant is no trespasser, but is in possession under the contract which the plaintiff has bound himself to carry out."
10. "Upon a legitimate application of these principles not only is the purchaser who has obtained possession entitled to enforce specific performance of the contract for sale, but if an attempt be made by the seller to evict him by an action in ejectment he would have a valid answer to the action on the ground of fraud. The same ground would be available to him to entitle him to recover possession in the event of his being ousted by the seller." To the same effect is another decision of the Allahabad High Court in Begum v. Mohd. Yakub (1894) ILR 16 All. 344 (FB)
11. 8.We find ourselves in complete agreement with the observations made by their Lordships in the aforesaid case. It is manifestly clear that where the plaintiff voluntarily executes a contract of sale, puts the proposed vendee in possession of the property and receives the entire consideration money, there is no special equity in his favour to allow him to turn round and claim the property after a long time merely because the price of the property has increased. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor can the Court aid him to commit fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the property.
9. For these reasons we find that even though the possession of the defendant may be permissive, since the plaintiff has received the entire consideration money and allowed the position to be changed to the prejudice of the defendant, he will be estopped from repudiating the sale transaction and recovering possession from the defedant. On this ground alone, in our opinion, the defendant is entitled to succeed."
12. ' Facts in the present case bore close resemblance and proximity to the facts in the precedent case. Principle of law deducible therefrom also applies and is quite apposite to the facts requiring determination in the civil revision. Impugned judgments can be supported upon the above principle of equity. Binyameen defendant No,2 though was proceeded against ex parte but had appeared as a witness for the plaintiffs and is shown to have supported them. It shows his interest in them. It also supports the strong inference of collusion between him and the plaintiffs. After having received the decretal amount of Rs, 9,300 from the Court, he chose to side with the plaintiffs to dislodge Mohammad Rafique decree-holder. It is in this view that I see no force in the civil revision and order its dismissal summarily.