1. ' Civil revision by the defendant in a suit for pre-emption was against the judgment of lower appellate Court, affirming that of the trial Court by which it decreed pre-emption in favour of plaintiffs-pre-emptors.
2. ' Facts of the case briefly summarised are:-- ' Muhammad Hussain was owner of 18 Kanals, 18 Marlas of land at Mauza Sadha, in Tehsil and District Sialkot. By Mutation No, 871, sanctioned on 6-11-1972, he sold his land in favour of Zakir Hussain (hereinafter referred to as petitioner) and Mst. Irshad Bibi in propoition of 2/3rd and 1/3rd share for a sum of Rs,12,000. Petitioner was not a relation of Muhammad Hussain, whereas Mst.
3. Irshad Bibi was his real daughter. One Noor Hussain subjected the above sale to pre-emption, but his plaint was rejected for non-deposit of 1/5th of the probable sale price on 23-1-1974. Pre- emption suit was instituted by him on 21-10-1973. That ended the matter so far as Noor Hussain was concerned.
4. ' On 27-9-1977, Muhammad Hussain instituted a civil suit for declaratory decree that Sale Mutation No,871, dated 6-11-1972 was null and void because he was defrauded in it. Mst. Irshad Bibi conceded the suit in his favour and against the petitioner the trial was held ex parte and the suit was decreed in that form on 29-11-1978. Mst. Irshad Bibi did not agitate the ex parte decree. Petitioner applied for setting aside of it. The trial Court dismissed the application for setting aside of the ex parte decree on 19-10-1982. Petitioner preferred an appeal from the decision. It was heard by learned District Judge, Sialkot. In course of it, on 19-12-1982, parties to the appeal arrived at compromise and settled the dispute in appeal. Petitioner paid Rs,25,000 in cash, in presence of the Court to Muhammad Hussain and Mst. Irshad Bibi in respect of the land measuring 18 Kanals, 18 Marlas and in lieu of it, they relinquished their rights in the land in his favour, who then was declared sole owner of it. Appellate Court had recorded joint statements of all the three parties and passed a consent order in terms of compromise between them. The consent order runs:-- "The parties have effected a compromise. Their statements have been recorded in vernacular.
5. Zakir Hussain has paid an amount of Rs,25,000 in my presence to Muhammad Hussain and Mst.
6. Irshad Bibi. In view of their statements, the appeal is accepted, the judgment and decree of the lower Court are set aside and it is hereby declared that Zakir Hussain shall be the sole owner of the land in suit and that necessary entries in the Revenue Record shall be obtained by him. The parties are left to bear their own costs throughout. Announced. (Sd.)
7. 19-12-1982 District Judge, Sialkot."
8. ' Taking it to be a fresh transaction of sale in favour of the petitioner, a son and daughter of Muhammad Hussain, namely, Ahmad Ali and Mst.d Rehmat Bibi, now respondents Nos.1 and 2, in this Court, claimed pre-emption in respect of it and instituted a pre-emption suit for it, on 17-12- 1983. Petitioner contested the suit. It was asserted that the suit was barred by time; earlier a pre- emption suit was filed in respect of the present transaction on 21-10-1973, which was dismissed on 23-1-1974. Thus, the present suit was not maintainable; plaintiffs were estopped by their conduct to file the present suit; the sale took place on 6-11-1972 and the plaintiffs challenged this sale as fraudulent but before the learned Additional District Judge they entered into a compromise with the aforesaid party and admitted the validity of the sale dated 6-11-1972. Thus, the plaintiffs were estopped to file the present suit. Controversial point regarding sale was covered by issue No,4. The trial Court mainly found that it was fresh transaction and suit for pre-emption filed in respect of it was not barred by limitation. Consequently, it decreed the pre emption suit, on 17-5-1986, subject to payment of Rs,25,000 by 30-6-1986. Appeal preferred by the petitioner was dismissed on 2-10-1986 and judgment of the trial Court on issue No,4 was maintained. Thereupon, a petition for revision was filed in this Court. It was admitted to hearing on 15-10-1986. Admitting note reads:-- "Inter alia, contends that the transaction in dispute was not a sale and that in fact it was a recognition of the right of the petitioner as an owner on the basis of an earlier sale which has been effected in his favour as far back as on 6-11-1972. The contention needs examination."
9. ' In the above context, it shall be manifest that the sole point for consideration on which turns the decision of the civil revision was, whether the transaction concluded in compromise in appeal was a fresh sale pre-emptible by respondents or it was merely bona fide relinquishment of a doubtful claim. As said above, lower Courts construed it to be a pre-emptible sale and based their judgments on it, accordingly.
10. ' On behalf of petitioner, Ch. Shahbaz Khurshid, learned counsel for the petitioner, relied upon cases is Nihala Ram and another v. Punnun Ram and others AIR 1927 Lah. 147, B. Shyam Lal and others v.
11. L. Badri Prasad AIR 1929 All. 788, Lal Khan v. Allah Ditta and others PLD 1950 Lah. 1%, to urge that bona fide settlement or adjustment of a doubtful claim was not a transaction of sale susceptible to pre-emption. On the contrary, Malik Abdul Wahid, learned counsel for respondents Nos.1 and 2, referred to a case in Rasul Khan v. Qalandar Din and 4 others 1988 CLC 323 (Lahore), decided by me, and argued that the compromise was in reality a transfer of ownership rights for a payment of sale price and had all the indicia of a pre-emptible sale in it. Therefore, the real question to examine was the nature of compromise and its amenability to pre-emption. Earlier sale evidenced by Mutation No,871 on 6-11-1972 was oral. It was in favour of two persons, namely, the petitioner and Mst. Irshad Bibi. Petitioner purchased 2/3rd share. and Mst. Irshad Bibi 1/3rd share. Vendees in the sale mutation did not dispute their inter se share of the land purchased by them. Muhammad Hussain challenged the correctness of the sale mutation about five years after its attestation in Revenue Record. The trial Court decreed his suit ex parte. Presumably, the ex parte decree was passed without taking evidence. As for Mst. Irshad Bibi, she readily conceded the claim put forth by her father. In consequence, the sale was set aside in toto. In appeal preferred by the petitioner, the parties came to a compromise. The petitioner paid Rs,25,000 to Muhammad Hussain and Mst.
12. Irshad Bibi for acquiring exclusive ownership of the land in dispute. The terms of compromise were a little departure from the earlier mutation by which the petitioner had purchased only 2/3rd share in the land. Consideration for the compromise was more than double the original consideration in Mutation No,871. Prima facie looked at it appeared to be an independent transaction for transfer of ownership rights. But read in close context of the facts and circumstances brought on record, there was little doubt that it was in continuity of the earlier transaction of sale evidenced by Mutation No,871 sanctioned on 6-11-1972. As I have observed above, original sale mutation was sanctioned in favour of petitioner and Mst. Irshad Bibi. Inclusion of real daughter in the sale mutation for a 1/3rd share in the land sold negated the plea of fraud regarding its attestation. The mutation was attested in open assembly. The daughter was resident of the same village. A pre-emption suit was filed in respect of the sale in favour of petitioner and Mst. Irshad Bibi. It was about a year after the attestation of the sale mutation. A few months thereafter, the pre-emption suit was dismissed. It was inconceivable that Muhammad Hussain may not have gained knowledge about the attestation of sale mutation and institution of the pre-emption suit and also its dismissal.
13. Nonetheless, the suit for cancellation of sale mutation was brought approximately after five years from the date of attestation of the sale mutation on 6-11-1972. It was significant to observe that Mst.
14. Irshad Bibi soon appeared and readily confessed judgment in favour of her father. Petitioner, however, was declared ex parte and an ex parte judgment regarding invalidity of the sale in his favour was rendered by the trial Court. Petition for setting aside of the ex parte decree having failed in the trial Court, the dispute was lifted in first appeal before the District Court at Sialkot and settled in compromise on the lines indicated above. It was this transaction which was sought to be pre- empted by another son and daughter of Muhammad Hussain, who once owned the land in dispute. Mst. Irshad Bibi having conceded the suit in favour of her father was left with no rights in the land in dispute. Petitioner persisted his claim to get rid of the ex parte judgment against him. He settled the dispute by payment of additional amount to both the father and daughter. The payment was made in lump sum without specification of inter se shares of Muhammad Hussain and Mst. Irshad Bibi. Payment of amount to Mst. Irshad Bibi looked a little unusual but on closer examination was found consistent with the desire of the petitioner to bury the pending litigation against him to save his title to the land in dispute. In my opinion, the compromise in appeal was not equivalent to a fresh sale of land in favour of the petitioner. The compromise was a clear attempt at a bona fide settlement of doubtful claims in a pending litigation. Unless the transaction was a clear sale, it could not be held pre-emptible. The doubt, if any, about it must be resolved in favour of an innocent vendee who in the event of successful pre-emption was bound to be dislodged from the transaction in his favour. Lower Courts had not broached the subject from a correct legal perspective. The result was an obvious incorrect conclusion leading to a failure of justice, I would, therefore, in exercise of revisional jurisdiction set aside the judgments and decrees of the lower Courts and dismiss the pre-emption suit by leaving the parties to bear their own costs throughout. Pre-emption money, if deposited, shall be refunded to respondents Nos.1 and 2.
15. ' Records be returned.