' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against order dated 5-3-1990 of learned Single Judge of Lahore High Court, Bahawalpur Bench, whereby R.SA. No,5-89/BWP is dismissed in limine and in the result judgment of the trial Court decreeing suit of preemption of respondent before us is upheld against which appeal was dismissed by the first appellate Court of District Judge, Bahawalpur.
2. Briefly stated the relevant facts are that Muhammad Shall sold agricultural land admeasuring 100 Kanals in Mauza Sharif Din, Tehsil and District Bahawalnagar, to his brother Muhammad Amin vide registered sale-deed dated 17-5-1977 for Rs,10,000. Maqbool Abmad son of vendor filed Suit No,46/82 against his uncle and vendee Muhammad Amin for possession of suit land through pre- emption on the ground that he is son of vendor. It was claimed in the plaint that suit land was sold for Rs,8,000 and a fictitious price of Rs,10,000 was shown in the sale-deed. Suit was resisted and in the written statement allegations of plaintiff were controverted and preliminary objections were raised to the effect that suit land was exempt from pre-emption and suit was benami and defendant was entitled to Rs,2,500 on account of incidental charges. Additionally it was mentioned that suit was barred by limitation and plaint was not thumb-marked by mother of minor-plaintiff.
Keeping in view the pleadings of the parties, following issues were framed:--
(1) Whether the suit land is exempt from pre-emption for the reasons stated in preliminary objections Nos.1 and 3 of written statement? OPD
(2) Whether the suit is benami? OPD
(3) Whether the defendant is entitled to recover Rs,2,500 alleged to have been spent by him as incidental charges? OPD
(4) Whether defendant has effected improvements on the suit land? If so, with what effect and to what extent? OPD
(5) Whether the-plaintiff has superior right of pre-emption? OPP
(6) Whether the plaintiff has waived his right of pre-emption? OPD
(7) Whether a sum of Rs,10,000 was fixed in good faith or actually paid as sale price of the suit land?
OPD
(8) If issue No,7 is not proved, what was the market value of the suit land at the time of its sale? OPP (8-A) Whether the plaint is liable to rejection under Order 7, Rule 11, C.P.C.? OPD (8-A/1) Whether the suit is time-barred? OPD (8-B) Whether the plaint is not thumb-marked by the mother of the minor-plaintiff? OPD
(9) Relief.
3. After evaluation of evidence produced by the parties learned Civil Judge decreed the suit of plaintiff for possession through pre-emption in lieu of Rs,10,000. Petitioner Muhammad Amin defendant in the suit filed Civil Appeal No,30 of 1989 which was dismissed by learned District Judge, Bahawalnagar, vide judgment dated 11-2-1989. Muhammad Amin then filed Second Regular Appeal in the High Court which is dismissed in limipe as stated above.
4. This Court granted leave to consider contentions which are reflected in the paragraph which is reproduced as under:-- "In support of this petition it is contended that the suit brought by the respondent was a collusive one and intended entirely for the benefit of his father. This plea was also canvassed by the petitioner before the Courts below but was rejected. It is argued by the learned counsel for the petitioner that in rejecting the plea of collusiveness set up by him the Courts below have overlooked a very material fact, that is, the respondent was a minor and had admittedly, no source of income of his own; it was, therefore, clear that the suit had in fact been brought by the respondent's father who wanted to renege on the sale. Reliance is also being placed on the judgment of this Court in Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403)."
5. It appears from the judgment of the trial Court that Issue No,2 was whether the suit was benami and burden of proof was placed upon defendant in the suit. Trial Court noted the contention that defendant was a minor and had no means of income and his father Muhammad Shafi, the vendor was fmancing him for the suit and in such circumstances it was a benami suit for the benefit of the vendor. In support of this contention no positive evidence was produced by the defendant as burden was upon him. Trial Court concluded that defendant could not be allowed to succeed on the basis of surmises and conjectures. Plaintiff as son of vendor had indpendent right to pre-empt the suit land and he exercised such right through his mother for his own benefit. In the result issue was answered against the defendant. Before the first appellate Court defendant had moved an application for additional evidence and wanted to prove that Rs,65,000 had been paid and the parties being real brothers only nominal amount of Rs,10,000 was shown in the sale-deed. He made second application for permission to amend written statement; third application for referring some thumb-mark to Finger Prints Expert and fourth application for appointment of Local Commissioner to assess the market value of the suit land. These applications were rejected on the ground that they were unnecessary and appeal could be disposed of on the basis of evidence brought on the record. However, on the issue of benami, the first Appellate Court observed that right of pre- emption could not be defeated merely on the ground that the funds had to be provided by someone else. In the High Court this contention has been dealt with in the paragraph of the judgment which is reproduced as under:-- "In passing, half-hearted attempt has been made to urge that the plaintiff was acting Benami and was even estopped from exercising the right of pre-emptioq. These are two mutually destructive pleas and still they were sought to be urged on the premises that the pre-emptor happens to be a son of the vendor, though grown up, yet, a minor. It was conceded that there was no statement or conduct amounting to some representation proved as capable of being attributed to him. But it was urged that he had remained present at the time of sale without evincing any interest in the transaction whereabout he did not put forward any claim at all."
6. It appears that in the trial Court pleas were taken that plaintiff was minor and also that he was present at the time of sale and had waived his right. Both these pleas are incongruous and defeat each other. If plaintiff was minor then he could not enter into contract and, therefore, could not waive his right. In the leave granting order is noted case of Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403) cited in support of contention of defendant/vendee that suit is collusive filed by minor son for the benefit of father and financially supported by latter. Facts of the reported case are that suit land was purchased by Arshad Ahmad for Rs,16,000 vide mutation from vendor, whose collateral Naseer Ahmad filed suit of pre-emption and claimed that original sale . Price was Rs,8,000. Suit was resisted by vendee on the ground that offer of sale was made to the pre-emptor through Punchayat, which was refused by him. Defence plea was supported by six D.Ws. While on the other hand pre-emptor examined only himself. Trial Court decreed the suit and did not accept defence plea on the ground that notice under section 19 of the Punjab Pre-emption Act, 1913 was not given by the vendor. First appeal of vendee was dismissed by the District Judge but his Regular Second Appeal was accepted by the High Court reversing fmdings of the two Courts below and dismissing the suit. It was held that it was incorrect to urge that right of pre-emption could not be waived at all till such time as it came into existence. It was also held that plaintiff having motive to create hurdle in 'way of vendee for his own benefit or to compel vendee to dish out money as a price for withdrawal of suit by him was not entitled to relief through Courts of law. Judgment in the reported case is not attracted to the facts of the instant case for the reason that in the instant case while pre-emptor is son of vendor, vendee is also brother of vendor, hence both parties are very closely related to each other, therefore question of motive to compel vendee to dish out more money does not arise.
7. Another case cited on behalf of the appellant before us is Imam v. Saifur Rahman (1983 SCM R 244) which is also distinguishable for the reason that in that case only leave was granted to consider whether facts and circumstances of that case amounted to fraud on statute and misuse of process of Court. In that case suit land was sold by two vendors. Minor son of one vendor filed suit for pre-emption through his mother as guardian-ad-them and son of other vendor also joined but later withdrew from the case. Suit was decreed and appeal and R.S.A. Were dismissed. In such circumstances, leave was granted to examine the contention that Muhammad Iqbal had himself got the suit filed in collusion with his wife for his own benefit using the name of his minor son for the purpose.
8. Before us on behalf of the respondent it is urged that evidence recorded before the trial Court was properly appreciated and evaluated and consequently the suit was decreed against which appeal in the District Court and Second Appeal in the High Court have been dismissed. In the suit on behalf of respondent/plaintiff four witnesses were examined including preemptor and his mother Mst. Sharfan. P.W.1 Muhammad Zaman and P.W.2 Allah Yar have supported the case of the pre-emptor and have deposed that expense's of the suit were being borne by Mst. Sharfan. P.W.3 Mst. Sharfan deposed that she Was bearing the expenses of the suit and she and her children were living separately in the house of her brothers. Her son Maqbool was also earning. P.W.4 Maqbool stated that at the relevant time he was 14 or 15 years old and had studied up to 7th class. He had been earning and giving money to his mother. On the other hand appellant who is defendant in the suit examined five witnesses including himself. Emphasis in their evidence is that transaction was for Rs,65,000 and low amount of Rs,10,000 was shown as vendor and vendee were brothers and secondly transaction took place in presence of Maqbool. After appraisal of evidence trial Court came to the conclusion that defendant in the suit failed to prove that transaction was benami and suit was for the benefit of vendor. Trial Court has believed the evidence produced on behalf of plaintiff that plaintiff has exercised his right of pre-emption through his mother for his own benefit.
Trial Court has also held that plaintiff as son of vendor has superior right of pre-emption as against defendant who is brother of vendor. On the issue of waiver, trial Court has held that burden was upon the defendant in the suit who failed to produce positive evidence of waiver and mere presence at the time of sale was not sufficient: Even defence witnesses did not state specifically that pre-emptor did anything or said anything to show that he had waived his right. These findings are based upon evidence which have been maintained in appeal and second appeal.
9. Pre-emptor cannot be non-suited on the allegation of collusion unless it is established by uncontrovertible evidence and there is strong proof in support thereof. In this context reference can be made to the case of Imam v. Saifur Rahman (PLD 1984 SC 415) in which while examining sections 15 and C 21 of the Punjab Pre-emption Act, 1913, it was held that allegation of collusion has to be established by uncontrovertible evidence and such allegation simipliciter could not be a good ground for rejection of claim. It was also held that if pre-emptor is minor or poor and litigation is financed by somebody else I) it would not by itself mean that petitioner is acting in the interest of another. If son of vendor files suit for pre-emption, it does not mean that he has done so in collusion with his father or for the benefit of another person unless it is so E proved by strong evidence. Reference can be made to the case of Altaf Hussain v. Abdul Majeed (1991 SCM R 2523).
10. In view of evidence available on the record and legal position stated above, we are unable to find any flaw or legal infirmity in the order of the High Court dismissing second appeal filed under section 100, C.P.C. On the ground that no interference was called for in the findings of two Courts below which are concurrent. Appeal is, therefore, dismissed and there will be no order as to costs.