1. ' These two connected petitions--Civil Revisions 1121, 1122-D of 1986 emerging from an identical firmament of facts which raise an analogous question of law for decision are intended to be dealt with in a single judgment. But to assist proper understanding of the point involved, relevant facts need be stated.
2. ' By two separate deeds of sale registered on 11-1-1977, one Mohammad Hussain sold two parcels of land measuring 18 kanals, 14 marlas and 5 kanals, 9 marlas situate in the revenue estate of Kuka, Tehsil Gujrat, in equal shares, to Sardara s/o Jalal and Gaman s/o Hassan Mohammad at the sale price of Rs,18,000 and Rs,12,000 respectively. Mohammad Yaqub plaintiff as collateral, co-owner in the lands sold, owner of the land in patti and revenue estate claimed preemption in respect of the above sales, and, on 14-3-1977, sued to recover possession. On 23-7-1977, Gaman vendee brought a civil suit for declaration against his co-vendee Sardara to claim that the lands purchased vested in him exclusively. Sardara conceded his claim on 25-9-1977 and a consent decree affirming the right of Gaman to the entire land was passed on the same day. Copy of the plaint in the suit and consent decree were put in evidence.
3. ' Pre-emption suits were resisted. Material averments in the plaints were controverted. Number of pleas were raised in written statements but the defence was identical and so the issues settled for determination. However, trial in each suit proceeded separately.
4. ' Upon consideration of the evidence adduced by the parties, the trial Court, by separate judgments passed in identical terms, decreed the suits in favour of the plaintiff on 7-7-1985, subject to his depositing/paying the stated decrial amounts. Heirs of Gaman who had breathed his last meanwhile, preferred two appeals but Sardara was omitted from the record. He was neither appellant nor respondent in the appeals. On 15-4-1986, appeals were dismissed and findings recorded by the trial Court were affirmed. Aggrieved of the judgments and decrees, legal heirs of Gaman namely Mohammad Hussain and Mohammad Sadiq have petitioned this Court for revision.
5. ' Only point of materiality surviving for decision and extensively argued by the learned counsel for the parties was about preferential right of pre-emption, decision whereof shall seal the controversy between them.
6. ' Some facts relevant to the decision are not disputed. It is agreed that sales sought to be pre- empted were joint and indivisible. Shares of the vendees interest in the lands purchased were specified but not the proportion in which sale price was contributed by them. It is also agreed that pre-emptor and Gaman were equidistant collaterals of the vtndor and Sardara was a step lower and his right was inferior to them. The pre-emptor and Gaman were at par. Upon the facts stated and admitted, a Short but interesting legal point whether in case of a joint and indivisible sale, a vendee who was at par with the pre-emptor, in associating with a person of inferior status by purchasing out the latter merely removes a defect to his qualification or improves upon his status so as to save the sale in his favour from the aggression of pre-emption. From the afore noted proposition of law, yet another legal proposition whether 'sinking' was irretrievable or was capable of rectification in the act of purchasing out the stranger. Moot point came up for consideration on different occasions and conflicting opinions were expressed but the conflict was set at rest in the more recent pronouncements of the Supreme Court in Maula Bakhsh and 10 others v. Muhammad Sharif PLD 1989 SC 278, Muhammad Ismail and others v. Karamat Ali PLD 1989 SC 474. In the first case, expressions of opinion in Sharaf and Makhan v. Pir Bakhsh and Khuda Bakhsh (83 Punjab Record 1893), Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59 were approvingly referred to and relied upon. As Mr. Shamim Abbas Bokhari learned counsel for the petitioners submitted that since the observations of the Supreme Court in the afore noticed cases were only obiter and not the law declared, were not binding upon the High Court to which view I do not subscribe, it shall be profitable to advert to the previous state of case-law before enactment of section 21-A of the Punjab Pre-emption Act, 1913 on 29-5-1944. In Imam-uddin and another v. Nur Khan and another 10 Punjab Record 1884, Barkley and Burney, JJ. On the analogous point observed:-- "It is not necessary, however, to base our decision on the plaintiffs being proprietors in the same dheri with the vendor, as it is admitted that Haku, one of the joint purchasers, is not a proprietor in the same patti, and has no rights of pre-emption. Imam-ud-Din, not being sole purchaser, cannot, therefore, rely on his being a proprietor in the same patti. He has joined in the purchase with a person who has no right of pre-emption, and to allow him to rely on his own right to defeat the plaintiffs claim, would be to deprive the plaintiffs of their right of preemption against Haku, the joint purchaser. Imam-ud-Din is a party to the transaction by which the plaintiffs right of pre-emption is infringed, and is entitled to no superior position, when that right is asserted to that of Haku, who is joined with him in the purchase. It is suggested that he might buy out Haku, but he has no claim to be allowed to do so, and if he did so, this would not make him the sole purchaser in regard to the sale which has given rise to the plaintiffs right to purchase. The same point has been decided by the High Court, North Western Provinces, in Ganesh Lal v. Zaraat Ali, 2 N.W.P.H.C.R. 373, and by the Sadar Dewani Adalat in Sheodial Ram v. Bhairu Ram, S.DA. Rep. N.W.P. For 1860, p.53; while the converse of the present case has been decided in I.L.R. 5 Allahabad 197 on the same principle-- (see p.200). We therefore hold that the plaintiffs claim to pre-emption must prevail."
7. ' In Manga v. Imam Din and others AIR 1933 Lahore 117, similar views were expressed by a learned Single Judge of this Court. It was held:-- "The question therefore is whether the sale of his interest by Mir Zaman in favour of Manga prior to the institution of the suit for pre-emption deprived the pre-emptor of his right to pre-empt the original sale, it being conceded that if Mir Zaman had remained a purchaser of the property along with Manga the latter could not resist the claim of Imam Din to pre-empt the sale because Manga alone was competent to do so if he alone had been the purchaser of the property. It is an established proposition of the law of pre-emption that a person with a superior right cannot resist the claim of a person with an inferior right to pre-empt if he associates a stranger in the purchase by him. No authority directly bearing on the point has been cited by either counsel. Mr. Mohsin Shah on behalf of the appellant has relied upon the principle reorganized by several authorities in this Court that if a stranger purchases a property which is subject to the right of pre-emption and before the institution of the suit he transfers to a person who has an equal or superior right to pre- empting plaintiff then the latter cannot succeed, in his claim. The ratio decided in all such cases however is that the transfer has been made by the stranger to the person concerned in recognition of his right to pre-empt the sale. These considerations do not seem to me to apply to the present case. In the present case a more analogous instance is the resale by the stranger of the property purchased by him to the vendor and it has been held that in such cases a person having a superior right to pre-empt can successfully pre-empt the sale, that is a person having a superior right to the original vendee. It is on these grounds that I have reached the conclusion, though not without hesitation, that the view taken by the District Judge is correct and specially as in such cases analogies are not always a safe guide."
8. ' However, in Hayat Bakhsh v. Mansabdar Khan Dadan and others I L R XVI Lah. 921, Jallu and others v. Shahu Mirza and others I L R XIX Lah. 93, two Division Benches of the Court struck a discordant note and did not approve of the view expressed in the case of Manga. In Ali Mohammad and another v. Mohammad Din and others I L R XXIII Lah. 190, Full Bench of this Court comprising Tek Chand, Din Mohammad and Beckett, JJ. Again examined the point and ruled that though it is true that by joining a stranger with him a person with an equal or superior right of pre-emption loses his right, but this loss of right is not absolute. He can improve his status upto the date of the decree by purchasing the share of the stranger-vendee and thus defeat the suit. In a separate note appended to the judgment, Betkett, J. Did not consider it to be a case of improvement in the status of the vendee but merely a removal of the defect only. To quote, it was observed:- "The vendee is not here acquiring any right of pre-emption to be matched against the right of the pre-emptor. He possesses the right in the first instance, and once the strangers are removed, the basis of the right of pre-emption disappeaRs, This is in accordance with the reasons given by the Mohammadan authorities for deciding points of similar kind."
9. ' Not satisfied with the existing state of law and to clear it from the existing obscurity, the legislature stepped in and enacted section 21-A prohibiting a vendee to improve his status at any time after the institution of the pre-emption suit against him except through inheritance or succession.
10. However, it impliedly recognized his right to improve his status before the institution of suit. Above section came upon the Statute Book on 29-5-1944. Thereafter, this matter came up before the Supreme Court in Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59. On the analogy of a pre-emptor associating a stranger with him in the suit for pre-emption and a vendee purchasing the property joining with him a stranger in a joint and indivisible sale, the Supreme Court observed:- "The analogy between a pre-emptor as purchaser joining a stranger with him in the purchase, and a pre-emptor as plaintiff joining with him a stranger as co-plaintiff, is not so complete as necessarily to entail the same consequences. In the first case, the pre-emptor purchases in violation of the rules regulating pre-emption, and his act is incapable of being undone. In the second, the error is in form of the claim made in Court, and can be remedied without infringing the right of any person. The question in the former case may be one of the law of pre-emption, or of justice, equity and good conscience; in the latter, it is a question of the law of procedure in enforcing by suit a right of pre-emption. It may be quite just to say to pre-emptor, you alone had a preferential right to purchase, but you and a stranger together had not; and yet quite unjust to say to him, you have a preferential right of pre-emption to sue the defendant, but you have forfeited it by the erroneous belief that your co-plaintiff had an equal right."
11. ' Above view was reiterated and affirmed in Mania Bakhsh and 10 others v. Muhammad Sharif PLD 1989 SC 278, Muhammad Ismail and others v. Karamat Ali PLD 1989 SC 474. It was expressely ruled that the defect of associating a stranger in the purchase which is joint and indivisible was irremediable and was incapable of being undone. 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 regain 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 Punjab Pre-emption Act. Decision in Ghulam Rasool and others v. Muhammad Latif and others 1986 CLC 2830 (D. B.) also holds it to be a case of improvement in status. Furthermore, suit for declaration was instituted by Gaman after the pre-emption suit was filed against him. Nonetheless, pre-emptor was not impleaded in the suit.
12. Without trial, Sardara readily confessed the claim and suffered a consent decree which is nothing but an agreement between the parties to which the seal of the Court was superadded. Consent decree was result of a non-hostile and seemingly a friendly duel between Gaman and Sardara. It is open to grave doubts whether such a decree passed in the circumstances noted above was sufficient to invest Gaman with exclusive ownership of the land in dispute and to defeat the plaintiffs right of pre-emption. But as I take the view that in associating a stranger with him in the joint and indivisible sale, Gaman was relegated to the status of his associate A and this defect was not rectifiable, I need not finally express on merits about nature and legal effect of the consent decree. No other point was urged.
13. ' Having regard to the above, impugned judgments and decrees passed by the Courts below are correct and no interference can be caused. Accordingly, civil revisions are dismissed but parties are left to bear their own costs.