1. ' This second appeal is by the vendee-defendants in the pre-emption suit instituted by the plaintiff to pre-empt the sale of the land to them by Major Muhammad Akbar Khan on 25-7-1974. Pre- emption suit was instituted in the trial Court on 24-7-1975. It was decreed to the plaintiff on 5-5- 1981. An appeal filed against the decree was dismissed on 6-4-1987 by the learned Additional District Judge. It is this decision that is being assailed in the second appeal.
2. ' Facts for the purposes of the second appeal, put in brief, are :- Land measuring 400 Kanals situate in revenue estate of Teku Rampura, Tehsil and District Bahawalnagar, was owned by Major Muhammad Akbar Khan. By deed of sale registered on 25-7-1974, he sold it to Sawar Muhammad Sharif and his two brothers Sepoy Abdul Latif and Sepoy Khalil Ahmad for a consideration of Rupees One Lac. Makhmool as plaintiff pre-empted the sale. He assertd his preferential right on the ground of being an owner of the estate and a Pattidar of the village. Price paid for the land was disputed by him.
3. ' Defendants resisted the pre-emption suit on number of grounds as is reflected in several issues settled by the trial Court. Those issues have been correctly set out in the impugned judgments and to avoid further burdening of the judgment, need not be reproduced.
4. ' Upon appraisal of evidence adduced by the parties, the trial Court found that as owner of the estate, pre-emptor had a better right; the stated sale price was fixed in good faith and actually paid and the same was its market value also; the suit was not barred by limitation; the suit was neither false nor vexatious; the vendor was not a necessary party to the pre-emption suit and in his absence, suit was not defective for non-joinder. Consequent upon the above conclusions, the trial Court gave decree for the land in the pre-emption suit to the plaintiff, conditionally upon his paying Rupees One Lac as its price to the defendants by or before the specified date failing which it was observed that the suit shall be deemed to have been dismissed. On appeal, these conclusions were maintained.
5. ' Though the pre-emption suit was tried in the trial Court upon number of issues but in second appeal findings on issues Nos. 4 and 5 alone survive for decision. Findings on other issues were not touched. Therefore, it is unncessary to refer to them.
6. ' Facts noted below which are otherwise well established on record are not in dispute between the parties. These are that the plaintiff-pre-emptor was owner of the estate; pre-emptive sale was joint and, indivisible inasmuch as though the shares in the land purchased by the vendees were specified but the proportion in which the sale price was contributed by the vendees was not specified; out of the three vendees, Sawar Muhammad Sharif only was the owner of the estate and his associates did not enjoy any preference; on the Doctrine of Sinker which applied to the facts, vendees whose right was at par also sank to the level of those who had no right of pre-emption and therefore, he could not resist pre-emption even to the extent of his own share in the land purchased by him.
7. ' On the facts, either admitted or proved, only three contentions were urged at the hearing. First contention was that since the land in the suit was situated in the border area, its sale was not pre- emptible by the plaintiff for want of a requisite prior permission from the G.H.Q., grantable under the West Pakistan Border Area Regulation (Martial Law Regulation No,9) 1959. The second contention was that Sawar Muhammad Sharif who was an owner of the estate at the time of impugned sale, in the event of purchasing out the shares of non-owner-vendees was invested with legal status of parity which denuded the plaintiff of his only preference. Yet a third contention at the end was also raised that Section 21-A of Punjab Pre-emption Act, 1913 was inapplicable to Bahawalpur and in its absence, the vendee-appellant No,1 could legitimately improve upon his legal status to be at par with the pre-emptor till the final stage in the pre-emption suit is reached.
8. Learned counsel have been heard and record examined. Upon consideration of the merits of the contentions, as shall be presently noticed in the succeeding discussion, those are without real substance. Principle that what is prohibited directly could not be permitted to be achieved indirectly on close scrutiny does not stand the test of soundness. A careful survey and examination of various provisions in West Pakistan Border Area Regulation, 1959 which deal with the property situated within the parameters covered by the Regulation did not impinge upon exercise of pre- emptive rights. Substitution is essence of preemption. It is not a right of repurchase either from the vendor or the vendee. There is no provision in the Regulation for freeing sale of the land in border area from pre-emption. Even otherwise, the pre-emptibility of sale of the land situated in border area is no longer res Integra. It is covered by the authority from this Court and the Supreme Court.
9. As far this Court, it is available in the case of Muhammad Ibrahim v. Hawaldar Muhammad Ilyas etc. 1983 CLC 963, and, the judgment of the Supreme Court is reported as Malik Fazal Muhammad and another v. Col. Abdul Ghafoor 1989 SCM R 1568. In both the judgments it has been laid down that there is no bar on pre-emption of the sale of the land situated in the border area. Therefore, the contention has no merits, and is repelled. The second contention is equally devoid of force. As said elsewhere, out of three vendees, only Sawar Muhammad Sharif was owner of the estate at the time of the sale. By agreement to sell dated 28-5-1975, the vendees who were non-owners of the estate agreed to sell their shares to Sawar Muhammad Sharif. Sale-deed transferring ownership rights was made and registered on 24-1-1976. In result of the sale, Sawar Muhammad Sharif became exclusive owner of the entire land. Limitation prescribed for the pre-emption suit expired on 25-7-1975. Only a day before that, pre-emption suit was filed in the trial Court. Agreement to sell was executed on 28-5-1975 but sale was completed at much later time on 24-1-1976. By this time limitation prescribed for pre-emption suit had already expired and pre-emption suit also filed in the Court. It may be advantageous to note that plea of improvement in status of the vendee- appellant No,1 by purchasing out the shares of the other two was neither taken in the written statement nor any evidence was given in support of it. Also neither the agreement to sell nor the sale-deed were made part of record formally. There is no doubt that agreement to sell per se does not operate as divestiture of ownership rights for vesting them in the transferee. It was a mere agreement that the sale of property shall take place on the terms settled in it. In itself, it is not effective for fmal transfer of rights under it. Section 54 of the Transfer of Property Act is clear on the point. On its plain language, it could not be gainsaid that the agreement to sell did not transfer ownership rights by the stranger-vendees to the vendee who was already an owner of the estate. If at all, those rights came to vest in the latter upon the execution and the registration of the sale- deed. That event happened after the institution of the pre-emption suit and expiry of limitation period. Section 21-A was inserted in the Punjab Pre-emption Act, 1913 by Punjab Act I of 1944 to offset the view that the vendee was entitled to improve his status till the stage of decree by the trial Court. Section 21-A gave a right to the vendee to improve his status after the sale but before the institution of suit for pre-emption and, after that through inheritance or succession only. In the present case, appellant No,1 had purchased the shares of other vendees after the institution of the pre-emption suit, when the limitation prescribed for the pre-emption suit had also run out. Learned counsel for the appellants contended that by purchasing out the shares from the vendees who were non-owners of the estate, appellant No,1 had merely removed a defect in the sale and not improved the status. I am afraid, it is not a correct statement of law. As already said, the sale pre- empted was joint and indivisible only. One of the vendees was the owner of the estate while other two were not. It is settled law that a person possessed of a right of pre-emption by associating strangers in the sale which is joint and indivisible loses his own preference also and sinks to their level. Learned counsel for the appellants laid no caveat to this proposition. All he said was that the sinker was neither irretrievable nor irremediable. Here again, he is not correct. In Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59, the Supreme Court found that such an act is incapable of being undone. On the point of Sinker, their Lordships of 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 the 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."
10. ' View expressed in case of Mehr Allah Ditta was not departed from in Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others PLD 1976 SC 572. Having purchased the land in violation of the law of Preemption, appellant No,1 forfeited his parity and sank to the level of the strangers which undoubtedly his associate-vendees were. The defect in the pre-empted sale was incurable and irretrievable. It certainly was fatal to cause of appellant No,1. As for the contention that subsequent sale of rights was a mere removal of defect and not improvement in status, it is not tenable because it ran contrary to the views expressed in Abdul Majid etc. v. Shahzada Asif Jan etc. PLD 1982 SC 82 and Qalandar and 4 others v. Mir Haider PLD 1986 Pesh. 75, which hold it to be a case of improvement in status and not removal of a curable defect. By President's Order No,1 of 1970. Bahawalpur emerged as a Division in the Province of Punjab. Therefore, there could be no dispute that the Punjab Preemption Act, 1913 as it existed on the day of enforcement of that Order applied to Bahawalpur. Section 21-A of Pre-emption Act prohibited improvement in status by the vendee after the institution of the pre-emption suit. Except for the contentions noticed and dealt with above no other point was urged.
11. ' In view of aforesaid, second appeal fails. It is dismissed with costs.