This R.SA. Arises out of a suit for possession through pre-emption filed by Allah Bakhsh, deceased (represented by appellants Nos. 13-A and 13-B), Jan Muhammad (represented by appellants Nos.1 to 6), Muhammad Bakhsh appellant No.7, Rahim Bakhsh, deceased (represented by appellants Nos.8-A to 8-J), Lal appellant No.9, Mst. Kundan, appellant No.10, Mst. Khatoon Alam, appellant No.Ll and Mst. Maryam deceased (represented by appellants Nos.12-A to 12-H) against Pir Bakhsh deceased and others (now represented by respondents Nos.1 to 10). The suit was instituted by the pre-emptors on 13-1-1969 to pre-empt the sale of land measuring 206 Kanals situated in village Diwala, Tehsil and District Muzaffargarh. The land was purchased by Pir Bakhsh and 8 others, the vendees through a sale deed written on 3-2-1968 and registered on 5--2-1968 (Ex P2-D1). The sale consideration was Rs. 35,000. The right of pre--emption was claimed on the ground that the pre- emptors were owners of land in the village as well as owners in Khata No.72 pertaining to the disputed land. It was claimed by them that out of the vendees Ghulam Rasul, Ghulam Hussain, Bashir Ahmad, Wahid Bakhsh and Khuda Bakhsh were strangers and by associating them in the composite sale Pir Bakhsh, Muhammad Bakhsh, Nabi Bakhsh, vendees had also lost their rights on the application of the principle of sinker. In the written statement filed by the vendees, jointly it was claimed that vendees/defendants Nos.5 to 9 had sold their share in the disputed land within the period of limitation, to defendants Nos.1 to 4, therefore, the suit could not succeed as against the said defendants. 1t may be mentioned that the subsequent sale was made by vendees defendants Nos.5 to 9 through the sale-deed written on 23-1-1969 and registered on 24-1-1969, through document Ex. D3: 2.On the pleadings of the parties the trial Court framed the following issues:-- (1)Whether the suit is properly valued for the purpose of Court-fee and jurisdiction? O.P.D (2)Whether defendants Nos.5 to 9 had sold their share of the suit land in favour of the rest of the vendees before the period of limitation for the pre-emption suit had expired; if so with what effect?
O.P.D (3)Whether the plaintiff has got a superior right of pre-emption qua the vendees? O.P.D (4)Whether Rs. 35,000 were fixed in good faith or actually paid as the price of the suit land? O.P.D.
(5)What was the market value of the suit land at the time of the sale in dispute?
(6)Whether the vendees had borne the expenses on the execution and registration of the sale- deed; and he paid the District Council fee; if so, how much and with what effect? O.P.D.
(7)Relief.
Issues Nos.1 and 2 were decided in favour of the plaintiffs/pre-emptors. On issue No.4 it was held that the payment of Rs. 35,000 was not proved because only a sum of Rs.5,000 was paid before the Registrar. Hence the Court got the market value of the land determined and held that its value was Rs.26,760. On issue No.6 it was held that vendees had spent an amount of Rs:1,750 (erroneously mentioned as Rs. 17500 in the judgment of the trial Court). On the above findings the suit was decreed by the trial Court vide judgment and decree dated 14-6-1977 on payment of Rs.28,510. All the vendees jointly filed an appeal in the Court of the learned District Judge, Muzaffargarh, who reversed the findings of the trial Court on issues Nos.2 and 3 and placing reliance on the judgment of Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171) held that section 21-A of the Punjab Pre-emption Act did not apply in the matter. Finding on issue No.4 was also reversed by the appellate Court. It was held that the market price of the land was Rs.35,000. Resultantly the appeal was allowed by the appellate Court vide judgment and decree dated 21-2-1979 and the suit of the plaintiffs/pre-emptors was ordered to be dismissed. They have come up in appeal before this Court.
3. The learned counsel for the appellants has attacked the findings of the first appellate Court on issues Nos.2 and 3. He urged that the subsequent sale made on 23-1-1969 by Ghulam Rasul etc., who were defendants NOS.5 to 9 in the plaint, was hit by the provisions of -section 21-A of the Punjab Pre-emption Act because the suit had already been filed on 13-1-1969. He further submitted that the subsequent sale was not shown to have been made in recognition of the superior right of Pir Bakhsh etc, who were defendants Nos.1 to 4 in the plaint. He urged that the transaction was otherwise sham transaction because even after the alleged sale Ghulam Rasul etc. Defendants Nos.5 to 9 continued to show their keen interest in the dispute by filing a joint written statement and after decision of the suit by the trial Court, a joint appeal in the District Court. He further urged that defendants Nos.1 to 4 could not improve their status after the institution of the suit by purchasing the land from the stranger vendees. In this connection he placed reliance on the judgments of Abdul Majid etc. v. Shahzada Asif Jan etc. (PLD 1982 S.C. 82)., Maula Bakhsh and 10 others v.
Muhammad Sharif (PLD 1989 SC 278) Muhammad Ismail and others v. Karamat Ali (PLD 1989 SC 474), Muhammad Khan and another v. Sadiq and others (PLD 1968 Lahore 929). Rana Muhammad Latif Khan and another v. Kanwar Saeed Ahmed Khan (PLD 1978 Lahore 299), Ghulam Rasool and others v. Muhammad Latif and others (1986 CLC 2830), Hassan Ali v. Babu and 2 others (1989 CLC 1014) and Muhammad Hussain and another v. Muhammad Yaqoob (1990 MLD 783). On the other hand the learned counsel for the respondents urged that the defendants Nos.1 to 4 by purchasing the land from the stranger vendees had merely removed the disqualification attached to them and did not really improve their status which may be said to have been hit by the provisions of section 21-A of the Punjab Pre-emption Act. He tried to distinguish the judgments relied upon by the learned counsel for the appellants on the ground that in all the cases the subsequent sales were made after the expiry of the period of limitation for filing of pre-emption suit. He tried to distinguish the judgment in Muhammad Hussain's case on the ground that there was no subsequent sale but declaratory decree was granted by the Civil Court holding the plaintiff to be the exclusive owner of the land. According to the learned counsel principle of sinker did not apply in the case because neither the defect attached to defendants Nos.1 to 4 was irremediable nor` they insisted on associating the strangers with them. In reply the learned counsel for the appellants submitted that the period of limitation qua the subsequent sale was not relevant. What was to be seen was whether it was made before or after the instituion of the suit.
4. Both the Courts below have held as a fact that the subsequent sale was made by Ghulam Rasul etc. In favour of Pir Bakhsh, deceased, Muhammad Bakhsh, Nabi Bakhsh and Ali Muhammad on 23- 1-1969, the date when the sale deed Ex D.3 was scribed. It was actually registered on 24-1-1969. The contention of the respondents that the subsequent sale was made on 2-12-1968 when the sale consideration was received through the receipt Ex D2, was repelled by the Courts below. I do not find any justification to differ with the finding of fact recorded by the Courts below that the subsequent sale in favour of Pir Bakhsh etc. Was made on 23-1-1969. The suit had already been filed by the pre-emptors on 13-1-1969. Under these circumstances the question arises as to whether Pir Bakhsh etc. Had vilidly improved their status so as to defeat the right of pre-emption claimed by the pre-emptors. Section 21-A, brought on the statute book in the year 1944 is reproduced below:- "21-A. Insertion of new section in Punjab Act I of 1913 Any improvement, otherwise than through inheritance or succession, made in the status of a vendee defendant after the institution of a suit for pre-emption shall not affect the right of the pre- emptor plaintiff in such suit.
A plain reading of this section makes it clear that any improvement made in the status of a vendee defendant otherwise than through inheritance or succession does not affect the right of pre- emptor plaintiff in a. Suit. In the present case land was jointly purchased by Pir Bakhsh and others through a composite transaction which was not divisible on the basis of specific shares or specific price paid by each vendee. Out of the vendees only Pir Bakhsh deceased, Muhammad Bakhsh, Nabi Bakhsh and Ali Muhammad respondents were owners in the estate while Ghulam Rasul, Ghulam Hussain, Khurshid, Wahid Bakhsh and Khuda Bakhsh were strangers. By associating the strangers the status of Pir Bakhsh and others, defendants Nos.1 to 4 in the suit was relegated to that of the strangers. The disqualification attached to the status of defendants No.1 to 4 was not removed till after the institution of the suit by the pre-emptors. It was specifically stated in para 2 of the plaint that defendants Nos.5 to 9 were strangers and by associating them in the sale deed defendants Nos.1 to 4 had also lost their right of pre--emption. The suit having been instituted, the provisions of section 21-A of the Act had clearly barred improvement of status in any manner except through inheritance or succession. The subsequent sale though made during the period of limitation, could not affect the pre-emptor's right and the alleged improvement of status could not be accorded recognition by the law. With the institution of the suit, the rights of parties were to be determined according to the status enjoyed by them on the date of institution of the suit. Looked at from that angle, on the B date of institution of the suit Pir Bakhsh, deceased, Nabi Bakhsh and Ali Muhammad defendants Nos.1 to 4 in the suit were relegated to the position of strangers i.e. Ghulam Rasul etc. Defendants Nos.5 to 9; In that capacity, the defendants could not successfully resist or defeat the pre-emptor's claim. Hence the subsequent sale made by Ghulam Rasul etc..Was inconsequential because it was made in favour of a person who, in the eye of law did not enjoy either equal or superior right as against the pre-emptor on the date of institution of the suit. Even if it is assumed that the re-sale was made in favour of a person having equal or superior right with the pre-emptors as being owners in the estate, the same being violative of the provisions of section 21-A, did not affect the pre-emptors rights. There is also force in the arguments raised by the learned counsel for the appellants that the subsequent sale was otherwise not bona fide and appeared to be a sham transaction. Despite having made the alleged sale Ghulam Rasul etc. Continued to exhibit their interest by filing a joint written statement in the trial Court and a joint appeal after an adverse decision of the suit by the trial Court.
The subsequent sale was not shown to have been made in recognition of the superior right of pre- emption claimed by Pir Bakhsh etc. Both Wahid Bakhsh and Karim Bakhsh who appeared as DW4 and DW5 respectively in the trial Court did not state that they had transferred their shares of the land in favour of Pir Bakhsh etc. In recognition of their superior right of pre-emption. The subsequent transaction appears to be a mere paper transaction as a device to defeat the plaintiffs' right of pre-emption.
5. The appellate Court has placed reliance on Mst. Fateh Babi's case which, in my view, is clearly distinguishable. In the said case land was originally sold by one Bandu to Imam Din, Niaz Muhammad and Abdul Rahim on 26-12-1966. Thereafter on 9-2-1967 Imam Din and Niaz Muhammad sold their share in the land to Allah Dad Khan and Ali Nawaz. The pre-emption suit was filed by Ahmad Khan and Muhammad Nawaz on 16-2-1967 on the ground of being co--owners in the Estate. They claimed that Imam Din, Niaz Muhammad and Abdur Rahim, the original vendees from Bandu were strangers. They alleged that the second sale, made in favour of Imam Din and Niaz Muhammad, could make no difference because Allah Dad Khan, defendant No.4, though an owner in the estate, had associated with him Ali Nawaz, defendant No.5, who was a total stranger.
Hence even Allah Dad Khan had lost his right. In the written statement filed by defendants Nos.4 and 5 Allah Dad and Ali Nawaz, it was mentioned that they had sold away the entire land to Mst.
Fateh Bibi, hence she was also impleaded as defendant No.6 in the suit on 8-5-1967. In the circumstances it was claimed that the sale made in favour of Mst. Fateh Bibi after the institution of the suit was hit by the principle of lis pendens. Mst. Fateh Bibi was an owner in the estate in her own right as she had succeeded to the land left by her father by virtue of mutation of inheritance sanctioned on 24-7-1965. The re-sale of the disputed land made in her favour was held to be a genuine and bona fide transaction. In these circumstances it was held that the pre-existing right of Mst. Fatch Bibi to pre-empt the original sale was in no way adversely affected by the general rule of lis pendens. Hence she could successfully resist the pre-emptors suit brought against her. As regards section 21-A of the Act, it was held that it had no application to the case of subsequent vendee who had acquired the property privately in assertion of his superior right of pre-emption.
This judgment is clearly distinguishable; firstly because the re-sale in favour of Mst. Fateh Bibi was held to be bona fide transfer; secondly because Mst. Fateh Bibi independently enjoyed right to pre- empt the original sale as being an owner in the Estate and she, not being an associate of strangers was not reduced to the position of strangers. Hence the appellate Court appears to have fallen in error in placing reliance on Fateh Bibi's case and reversing the findings of trial Court on issues Nos.2 and 3. The facts of the present case are similar to those of Abdul Majeed's case in which the argument that the purchaser from the stranger vendees, during the pendency of the suit, had merely removed an infirmity or disability, not involving improvement of status, was repelled by the Supreme Court. The said case involved the interpretation of the provisions of section 17 (2) of the N.-W.F.P. Pre-emption Act, 1950 which are identical to the provisions of section 21-A of the Punjab Pre-emption Act. In the said case one Zali Khan had purchased the joint share of his son after the institution of the suit. This was held to be an improvement in status and not mere removal of infirmity or disability from which Zali Khan suffered earlier. As a result the Court dismissed the appeal in the light of the principle laid down in the main judgment rendered in CA. 56-D of 1972. In the said appeal the principle laid down was that the improvement in the title of the vendee, made after institution of the suit, fell within the prohibited period/mentioned in section 17 (2) of the N.- W.F.P. Pre--emption Act, 1950 and as such could not be utilized by the vendee to add a new qualification in his status to defeat the pre-emption suit. In Maula Bakhsh's case the Hon'ble Supreme Court referred to two earlier cases decided by the Supreme Court captioned Mehr Allah Ditta v. Muhammad Ali and another (PLD 1972 SC 95) and Muhammad Siddiq and another v. Syed Zawar Hussain Abidi and 9 others (PLD 1976 SC 572) and repelled the contention that the rule of sinker was not applicable in the Punjab for a vendee. The distinction made in the.Case of a pre- emptor plaintiff associating with himself a stranger and that of a vendee defendant joining stranger in a sale transaction, in the earlier judgment was highlighted in Maula Bakhsh's case. In the cases of Mehar Allah Ditta and Muhammad Siddiq it was clearly ruled that a purchaser vendee having a right of pre-emption and joining the stranger with him in the purchase, would be in a worst position as the act of associating a stranger as a party to the sale was an act "incapable of being undone". However, an error 'in the array of parties by including strangers as plaintiffs, in the suit can be remedied under an order of the Court. In the case of Muhammad Ismail and others the Supreme Court was pleased to hold that if a vendee has an equal right of pre-emption but his associatee is a stranger in an indivisible sale, the transaction offends against the basic policy of pre-emption law to keep out strangers and himself sinks to the level of stranger vendee and cannot be permitted to retain share of the property purchased by him. This case does not involve discussion of the application of provisions of section 21-A of the Punjab Pre-emption Act. In the case of Muhammad Khan and another it was held that before resale of a property to another person could defeat the pre-emptor three requirements must be fulfilled; (a) the transfer by the vendee must be a real and genuine one and not merely a sham transaction; (b) the transfer must be in exercise of right of pre-emption; (c) the transfer must conform to the law of pre-emption, the transfer must take place within the period of limitation. The resale made in the present case does not appear to fulfil the first two requirements stated in Muhammad Khan's case. As held above the transaction does not appear to be a real or genuine one because the vendees, even after selling the land as claimed by them, continued to take interest in the disputed property like real owners.
Moreover, no evidence was brought on the record to show that the resale was made by them in recognition of the superior right of pre-emption of defendants Nos.1 to 4. In Rana Muhammad LatiPs case a Division Bench of this Court dismissed the vendees' appeal holding as under: "The appellants cannot succeed because by associating strangers in the purchase they became relegated to the status of those strangers who had no right comparable to that of the pre-emptor and because the disability so incurred had continued to remain until after the institution of the suit on 4-4-1974."
The Court also referred to section 21-A of the Act and held that the appellant's case was hit by the provisions of section 21-A as the improvement in the status was effected after the institution of the suit. In the case of Ghulam Rasool and others, another Division Bench of this Court held that where a vendee having equal or superior right of pre-emption had associated with himself in the joint purchase a stranger, he would lose his right to resist the claim of the pre-emptor on the application of the principle of sinker. It was also held that rule of lis pendens applies in a pre- emption case where the vendee improves his status after the period of limitation for filing the pre- emption suit. In Hasan Ali's case it was alleged that the provisions of section 21-A of the Punjab Pre- emption Act did not permit a vendee to improve his lot after institution of the suit or beyond prescribed period of one year of sale and that subsequent transfer during the pendency of a suit was inconsequential qua rights of the pre-emptor. In the case of Muhammad Hussain and another it was held as under; "Having once sunk to the level of the associate stranger, the vendee with equal or superior right of pre-emption could not improve his status and re-gain his former position to defeat pre-emption against him. An act of purchasing from the stranger co-vendee could not be characterised as a mere removal of defect but act of an improvement in status clearly prohibited by section 21-A of the Punjab Pre-emption Act."
6. The above resume of the case-law leaves no manner of doubt that a subsequent sale made by a stranger vendee in favour of other vendees of the original composite and indivisible sale, having an equal or superior right against the pre-emptor, after the institution of the suit, is violative of the provisions of section 21-A of the Punjab Pre-emption Act and cannot be pressed to defeat the pre- emptive right of the pre-emptor plaintiff.
7. In view of the above discussion, I allow this appeal, set aside the judgment and decree dated 21- 2-1979 passed by the learned Addl. District Judge and restore the judgment and decree dated 14- 6-1977 passed by the trial Court. In view of the delicacy of the legal question involved I leave the parties to bear their own costs.