1. MUHAMMAD AFZAL ZULLAH, CJ.--- This direct appeal arises out of the acceptance by the High Court of the First Appeal filed by the respondents/vendees' side in a case of pre-emption. The decree passed in favour of the appellants/pre-emptors was set aside, and, suit which was earlier decreed by the trial Court now stands dismissed.
2. The facts as noted in the impugned judgment are as under: The land measuring 182. Acres situate in village Rajanpur, Tehsil Lodhran, District Multan was owned by two brothers namely Farhat Hussain and Shaukat Hussain sons of Mahboob Hussain. Farhat Hussain for himself and as attorney of Shaukat Hussain executed an agreement of sale on 19-9-1978 in favour of the respondents to sell this entire land for a consideration of Rs.22,34,000. Subsequently, however, Farhat Hussain executed sale-deed (Exh. P-12) on 15-3-1979 in favour of the respondents qua his share of land measuring 855 Kanals 5 Marlas and received an amount of Rs.12,90,000 as consideration thereof from the respondents as evidenced by said sale-deed (Exh. P.2). It was recited in the sale-deed that the possession of the land would be delivered after the standing crop had been harvested.
3. Farhat Hussain vendor on 9-9-1979 filed a civil suit for permanent injunction against the present respondents seeking a decree that they be restrained permanently from interfering his cultivating possession of the land. On the other hand the respondents had already filed a suit for specific performance on 30-6-1979 against Farhat Hussain and Shaukat Hussain seeking decree for possession of the remaining land through specific performance of agreement dated 19-9-1978 qua the share of Shaukat Hussain. Both the suits were consolidated. The parties settled the matter on 25-11-1979 through compromise according to which the suit filed by the respondents for specific performance (Exh.D-16) was decreed subject to the condition that they would deposit the sale price within 40 days in the Court failing which their suit would be deemed to have been dismissed and earnest money would stand confiscated. On the payment of consideration as settled the appellants were bound to deliver possession of the land to the respondents in which event the. Suit filed by Farhat Hussain for permanent injunction was to be deemed to have been dismissed. On 8- 1-1980 the respondents filed an application (Exh.P.9) for execution of decree for specific performance on which warrants were issued for delivery of possession to the respondents. -The possession of the land was delivered to the respondents in execution of the said decree (Exh.D.l) on 12-1-1980. The respondents on 14-1-1980 made an application for delivery of possession of tube- well as also Derajaat constructed on the land by breaking open the lock etc. (P.13).
4. On 27-1-1980 the appellant No.l Saulat Hussain filed a civil suit impleading the present respondents as defendants along with his two brothers Farhat Hussain and Shaukat Hussain as also Province of the Punjab through which he sought a declaratory decree that the aforementioned consent decree passed in favour of the respondents for specific performance of agreement was not executable against him as he was in cultivating possession of the land as tenant-at-will over an area measuring 1504 Kanals 4 Marlas. Alongwith the suit an application for interim injunction before the learned trial Court was made which was granted through order dated 8-1-1980. Feeling aggrieved the respondents filed an appeal against the said order before the learned Additional District Judge, Multan, which was accepted through judgment dated i1-2-1980 (Exh. P.7). Appellant No.l/plaintiff in the said suit filed Civil Revision No.282 of 1980 before the High Court against the said order of the learned Additional District Judge which was dismissed in hmine by order dated 5-3-1980 (Exh. D.6).
5. The review petition moved by appellant No.l bearing No.17-C/80 also met the same fate through order dated 17-3-1980. Appellant No.l feeling dissatisfied filed CPSLA No.391 of 1980 (before this Court) which was also dismissed through judgment dated 6-4-1980 (Exh. D.8).
6. On 16-2-1980, the appellants, Saulat Hussain brother, and Atif Hussain son of the vendor, Farhat Hussain, filed the suit to pre-empt the sale of land measuring 855 Kanals 5 Marlas made by means of registered sale-deed dated 15-3-1979 from which the R.FA. Had arisen (in the High Court)., Learned counsel for the appellants has during his arguments highlighted three main features of the case. One, that, prima facie, the appellants' case would be covered by the rule laid down in the judgment of the Supreme Court Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403. However, relying on Altaf Hussain v. Abdul Majeed 1991 SCM R 2523 he argued, that it would depend upon the circumstances of each case where, to take into consideration the element of close relationship between the vendor and a preemptor in case like the present one. He explained that the earlier complicated litigation between the vendors on the one side and the vendees on the other does not at all reflect on the conduct of the pre-emptors/appellants' side because they had an independent statutory right to file a suit for pre-emption which could not be dismissed on account of bad conduct of vendors and/or their other relations. Lastly, he contended that one of the. Pre-emptors, who undoubtedly is son of the vendor, was minor and the suit was filed through his mother and that the mother who acted as guardian of the minor had not agreed to the sale of the land by her husband.
7. In so far as the legal position is concerned learned counsel for the appellants is right that in cases like the present one the statutory right of a pre-emptor even if he has a close relationship with the vendor cannot be denied to him. However, it is also not denied that the issue of collusion between the vendor and the plaintiff, cannot be decided without seriously considering the relationship between the two if. Of course, they are so closely related as in the present case- It is also agreed that it depends upon the circumstances of each case. Learned counsel for the respondents, however,without entering into any serious dispute about the aforestated legal position brought to our notice the observations of Supreme Court in the previous litigation between the vendors and the vendees. The following concluding part of the judgment in C.P. 391 of 1980, decided on 6-4-1980 is highly relevant for present discussion: "When the two brothers by consent suffered a decree for the whole land in two suits, and received the sum of Rs.7,51,003 it appears they put forward their present brother namely the petitioner to create difficulties in the matter of delivery of possession to the decreeholders despite the fact that the three brothers had earlier partitioned the estate and had taken separate lots of land and in these circumstances the probability of one brother being put up again in possession of lots of other brothers as a tenant does not fit in the whole context. The pleas taken in the revision and review petitions as also the present petition, it would thus appear were motivated with a deliberate and dishonest attempt on the part of the present petitioner to obstruct execution of the decree abovementioned, and the High Court refused to interfere in the matter.
8. Learned counsel for the appellants did feel difficulty in overcoming the previous judgment of this Court about the same transaction and the conduct of the parties. No doubt technically speaking the appellants/preemptors had a statutory right to file a suit for pre-emption but the Courts have also the power to decide the issue; whether the appellants have done so in collusion with another party in the entire transaction; namely, vendors who are closely related to them. We have also gone through the evidence. It supports the High Court judgment rendered against the appellants on merits. Therefore, in so far as these aspects are concerned no justification is found for interference.
9. Learned counsel .Understandably thinking that he was losing on merits raised a hypertechnical plea; namely, that the counsel of the defendant/respondents' side having given up an issue relating to collusion, the High Court should not have permitted this issue to be reagitated. Firstly, the High Court not only dealt with this question in detail but also took serious note of the omission.
10. The learned Judges therefore in the circumstances of this case themselves permitted respondents' side to raise the same. The same should have been dealt with by the learned trial Court. Be that as it may, some honest mistake could also be visualised on the part of the counsel for the respondent before the trial Court; because otherwise the trend of arguments noticed at every stage does not go along with the giving up the context of a very vital issue of collusion.
11. The stress on the question of one of the plaintiffs being minor is more connected with the compassionate side of the case which the learned counsel tried to highlight rather than the legality thereof. Learned counsel did not find any legal defect either in the proceedings or in the decision but tried again and again to emphasize that the minors should not be allowed to suffer on account of folly if committed by their elders. We do not agree with the learned counsel. The minor as a plaintiff/litigant if duly safeguarded in the procedural technicality, cannot have more than his right simply because he is minor. Of course, this all is subject to legal protection to the minors, vis-a-vis, the transaction that they entered into but in this case the minor wanted to set at naught a transaction which was entered into between the vendors and the vendees and which stood affirmed by the Supreme Court in earlier litigation.
12. In the light of what has been stated above there is no force in this appeal and the same is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.