1. ' Civil revision was by the defendants in the pre-emption suit dismissed by the trial Court on 25-2- 1982, and decreed in the lower appellate Court on 21-7-1983, conditional upon payment of Rs,52,000 within one month from the decree.
2. ' Mst. Yaqut Begum sold 55 Kanals, 12 Marlas of land situate in Chak No,719/GB of Tehsil Toba Tek Singh to Muhammad Nawaz and Muhammad Hussain for a sale price of Rs,52,000 vide a registered deed dated 14-3-1975. Ghulam Farid alongwith Muhammad Hussain claimed pre-emption in respect of above sale, on the grounds of being co-owners in the joint khata and tenancy-rights in the land sold. It was averred that Muhammad Nawaz by associating with Muhammad Hussain, who was a stranger, had forfeited his superiority. Suit was instituted on 9-3-1976. Defendants submitted a joint written statement. It was pleaded by them that the sale was not pre-emptible; that the plaintiffs had waived pre-emption; that less court-fee was paid upon the plaint, and, suit was barred by limitation. On merits, it was averred that Muhammad Nawaz defendant No,1 occupied the land in dispute as tenant. Therefore, in respect of half-share of the land purchased by him, the plaintiffs had no superior right of pre-emption. Upon enforcement of Act XLVIII of 1976--- Land Reforms (Amendment) Act, 1976, on 19th July, 1976, the suit was transferred to the file of Assistant Commissioner/Collector, Toba Tek Singh. On 17-12-1977, the Collector framed issues in vernacular and adjourned the suit for evidence by the plaintiffs. Thereafter, plaintiffs abandoned plea of tenancy as a ground for pre-emption. Thereupon, on 11-4-1978, the Collector transferred the suit file to the Civil Court at Toba Tek Singh for its trial. On 26-4-1978, parties agreed that the written statement filed in the Court of Collector and issues framed by him may be relied upon for trialof the suit by the Civil Court. On the basis of this statement, the suit was adjourned for evidence. On 24-2-1979, however, the trial Court framed fresh issues in English. These were:---
(1) Whether the suit land is not pre-emptible? OPD
(2) Whether the plaintiffs waived their rights of pre-emption, if any? OPD
(3) Whether the plaint has been insufficiently stamped for the purposes of court-fee? If so, what is the correct valuation? O.P.Parties?
(4) Whether the suit is barred by time? OPD
(5) Whether the plaintiffs have superior right of pre-emption? OPP
(6) Relief.
3. ' After resettlement of above issues, plaintiffs gave evidence of Nabi Ahmad P.W.1 and produced four documents in evidence, marked Exh.P.1 to Exh.P.4 and closed his affirmative evidence.
4. Thereupon, defendants entered upon their defence and gave evidence of two D.Ws. and one of them namely, Muhammad Nawaz appeared as a party-witness as D.W.
3. Thereafter, plaintiff Muhammad Bakhsh gave his own statement and closed the evidence. Upon scrutiny of recorded evidence, the trial Court dismissed the pre-emption suit. Issue relating to superior right of pre-emption was found in favour of the plaintiffs; plea of estoppel was found against them, and, likewise, the issue covering the point of court-fee was answered against them and suit brought by them was held barred by limitation on this score. It may be noticed that the trial Court gave findings on issues settled by the Collector and did not refer to the issues framed in English by the civil Court itself. Issue No,1 relating to superior right of pre-emption did not contain much discussion. Against the dismissal of the pre-emption suit, plaintiffs preferred an appeal to learned District Judge, Toba Tek Singh who reversed the decision of the trial Court and decreed pre-emption in favour of the plaintiffs. Issue of superior right of pre-emption did not receive much attention by learned District Judge. Aggrieved of his decision, defendants came up in revision to this Court. Revision was admitted on 23-11-1982.
5. ' Though the memorandum of revision petition contained number of grounds, yet at the hearing, the dispute was much narrowed down only to the examination of superior right of pre-emption claimed by the respective parties. Trial Court under Issue No,1 found that defendant No,1 claimed himself a co-sharer in the joint Khata but by associating defendant No,2 with him had sunk to the level of stranger, and, therefore, the plaintiffs had superior right of pre emption qua both the defendants. Surprisingly, defendant No,1 did not claim himself a co-sharer in the written statement.
6. He asserted his right to retain the land on the ground that he was a tenant on it and had a superior right of pre emption. The trial Court did not advert to it. P.W.1 deposed that Muhammad Nawaz defendant had taken some portion out of the land in dispute, either on lease, or, as tenant.
7. Muhammad Nawaz as D.W.3 deposed that he was in cultivation of the land since the year 1950 and he paid Rs,26,000 as his share of the price of land and Muhammad Hussain paid the similar amount for his share of the land. He was not subjected to cross-examination on this point.
8. Muhammad Bakhsh in his statement conceded that Muhammad Nawaz and Muhammad Hussain had purchased half share each of the land in dispute, but he knew not, whether they had contributed the sale price in similar proportions. Earlier to this statement, he had deposed that Muhammad Nawaz did not cultivate the land as tenant but held it as a lessee. Registered sale- deed distinctly specified the shares in the land purchased by each vendee but gave no indication of proportion regarding payment of sale price contributed by them. Sale-deed showed payment of sale price in lumpsum. Rs,22,500 were paid as earnest money and balance of Rs,29,500 was cleared at the time of regisration of sale-deed. On the tests laid down in the decided cases, for a transaction to be divisible, not only the shares in the property purchased must be specified but the proportion in which the payment of sale-price was contributed by the vendees inter se must also be indicated. 6 Punjab Record 1914 holds that "The principle hitherto accepted by this Court is that a sale transaction is to be regarded as indivisible in those cases where the purchase-money is paid in a lump sum without specification of the amounts paid by the various vendees, and that the mere fact that the shares to be taken by the vendees respectively are specified in the sale-deed, does not alter the nature of the transaction and is at most an arrangement among the purchasers inter se which does not affect the vendor". The principle laid in it was approved by the Supreme Court in PLD 1968 SC 140. In the last but one paragraph, the Division Bench of the Punjab Chief Court examined the question about admissibility of parol evidence to show the proportion in which the sale-price was contributed inter se by the vendees and found that "it may be a question whether evidence of this kind is admissible, regard being had to the provisions of section 99 of the Indian Evidence Act, but however, that may be, we are clear that persons who by clothing their transaction in a particular form have induced a pre-emptor to come forward and claim pre- emption in respect of that transaction as a whole cannot be allowed to turn round thereafter and claim to shew that their real intention was something quite different from that expressed in the sale-deed. It was quite open to the vendees to insist on the sales being effected by two different deeds, or, at all events, to take care to make it clear by reference to the amount of purchase- money payable by them respectively that the transaction was not of an indivisible character"
9. With immense respect, I am unable to agree with principle of exclusion of oral evidence by the vendees to show that the transaction concluded in a single deed of sale was qua the vendees divisible between them inasmuch as not only their shares were separate but the purchase-money was separately contributed by them. Vendee can give oral evidence in a pre emption suit to explain the character of the sale-deed. Evidence to establish the nature of consideration paid and its inter se contribution by the vendees was admissible, as it was not the term of the sale-deed. There was a clear difference between the terms of a contract and recitals of facts in a document. Oral evidence to contradict, vary, add to or substract from the terms of a contract, grant or other disposition of property was inadmissible. Amount of consideration was a term of contract.
10. However, inter se contribution of the consideration was not a term of contract, grant or other disposition of property. Therefore, oral evidence regarding it was not inadmissible. Defendant No,1 claimed tenancy-rights in the land purchased by him. There was some support for it available on the record. If he was found to be a tenant on the land in dispute or a part of it at the time of its sale and the transaction was held divisible on evidence, he may have a right to defend the sale in his favour to the extent of the land comprised in his tenancy. Lower Courts did not advert to this aspect of the case and their decision on it appeared to be perfunctory. Therefore, civil rights of the parties could not be left indecisive. In case of Abdullah and three others v. Abdul Karim and others PLD 1968 SC 140 their Lordships of the Supreme Court, on reference to Full Bench decision in case of Ram Nath and others v. Badri Narain and others ILR 19 All. 148, did not expressly rule out admissibility of parol evidence to establish inter se contribution of sale price by the vendees. In absence of sufficient proof on file of this Court for decision of this point, as well as, the point of tenancy-rights asserted by Muhammad Nawaz defendant No,1, I propose to remand following two issues to the lower appellate Court for their decision by it. The Court below will try these two issues afresh, after taking such evidence as may be produced before it by the parties. The remanded issues are:---
(1) Whether, the land in dispute or a part of it was comprised in tenancy of Muhammad Nawaz defendant No,1 at the time of its sale?
(2) What was the true price paid by each vendee and, whether the transaction embodied in the registered sale-deed was divisible?
11. ' In view of the foregoing discussion, civil revision is allowed, impugned judgment and decree of the Court below dated 21-7-1983 are set aside and the case is remitted to it for trying above two issues and decision of the appeal afresh. There shall be no order as to costs in this Court. Parties shall appear before the Court below, on 22-5-1993. Records be returned. Appeal shall be decided within six months. Learned District Judge shall either hear the appeal himself or entrust it to a learned Additional District Judge in the District.