1. Mst. Amanat Bibi was daughter of Hashim Khan. She was married to Abdul Majeed. He died and left her a widow. On his demise, she inherited from him 23 Kanals, 4 Marlas of land at Mauza Ismailpur in Tehsil Wazirabad of District Gujranwala. In her widowhood, she was abducted. A criminal case was registered regarding her abduction. It was tried in a Court of Criminal jurisdiction but the accused were acquitted. On record, there was a dispute about her real abductors. There was some indication that sons of Khuda Dad, respondent abducted her. Equally, there was a suggestion that Ahmad Khan had abducted her. Copy of the FIR lodged on the abduction of Amanat Bibi and the judgment of the Criminal Court were not on file. Therefore, nothing certain could be said about the accused of the abduction case.
2. Mst. Amanat Bibi asserted that Ahmad Khan duped her for a power of attorney in his favour for giving assistance to her in the matter of management of her land. On 28-6-1979, a power of attorney was registered at Ahmadpur Sharqia at the instance of Mst. Amanat Bibi in favour of Ahmad Khan. Original or certified copy of the registered power of attorney was not put on record or tendered in evidence in the case. It was in evidence that Mst. Amanat Bibi had entered into wedlock with Ahmad Khan. She asserted that she was coerced into it. Original or copy of Nikahnama between Mst. Amanant Bibi and Ahmad Khan was not put in evidence. In her statement in Courts as D.W.3 she deposed that she had riled a suit for dissolution of marriage against Ahmad Khan at Gujranwala. Record of it was also not produced. However, there were indications on record that she was living in separation from Ahmad Khan. It was not known on the present record, whether divorce had taken place between them.
3. On the basis of registered power of attorney dated 28-6-1979, Ahmad Khan on 25-10-1979, sold 23 Kanals 4 Marlas of land belonging to Mst. Amanat Bibi in favour of his three sons namely Naseer Ahmad, Javed Ahmad and Pervaiz Ahmad for a total consideration of Rs.70,000. Out of the vendees, Naseer Ahmad was major,, whereas, the other two were minors. Whole or part of the sale- price was neither paid at the time of execution of the sale-deed, nor, before the Sub-Registrar at the time of registration of the sale-deed. Rehmat Khan son of Hayat Muhammad appeared for the vendees before the Sub--Registrar and as for Mst. Amanat Bibi, Ahmad Khan Mukhtar-e-Aam attended the process. There was a clear note in the endorsement made by the Sub-Registrar that no payment was made in his presence. Sale-deed recited that the sale-price was already received by Mukhtar-e-Aam. The words used in the sale-deed were:- Registered sale-deed was not implemented in revenue papers. No mutation was, yet, attested to give effect to it.
4. On 25-10-1980, Khuda .Dad respondent claimed pre-emption in respect of the sale of the land evidenced by registered-deed on 25-10-1979. He asserted his superior right of pre-emption on account of being an owner of the estate. Price paid for the land was disputed by him. He stated that land was sold for Rs.30.000 only and inflated sale-price was shown in the sale-deed to ward off his pre-emption. Minor vendees were sued through their mother Mst. Manzoor Begum who acted as their guardian ad--litem.
5. Vendees-defendants submitted a joint written statement. They pleaded that plaintiff had no locus standi to file the pre-emption suit; he was estopped by his word and conduct to sue for pre- emption; the plaint was not properly assessed for purposes of court-fee and jurisdiction and, therefore, was liable to rejection on this score; defendants had effected improvements on the land and they were entitled to the reimbursement of the amount spent by them on this score; all the defendants were minors and the plaintiff had not proposed their guardian ad-litem. Therefore, the suit 'was liable to dismissal. On merits, right of pre-emption claimed by plaintiff was denied and it was averred that the land in fact, was sold for Rs.70,000 and the same was paid to Mst. Amanat Bibi vide receipt dated 1-8--1979.
6. On 4-5-1981, the trial Court framed appropriate issues arising out of the pre-emption suit for decision. Thereafter, it adjourned the proceedings for taking of evidence from the parties. On behalf of the plaintiff, his counsel tendered copy of sale-deed Exht. P.1; copy of register Haqdaran-e- Zameen for the year 1978-79 Exht. P.2; copy of pedigree-table for the year 1978-79 Exh.P.3; copy of register Haqdaran-e-Zameen for the year 1978-79 Exh. P-4 and closed his affirmative evidence, except for the statement of the plaintiff which was reserved to be recorded both in affirmative and rebuttal after the close of defendants' evidence. Thereupon, vendee-defendants gave their evidence. D.W.1 Ata Muhammad gave evidence for sale of the land and payment of sale-price, more particularly the receipt Exh.D-1. He was a close relation of Ahmad Khan and was also in litigation with nephew of Khuda Dad plaintiff. D.W.2 Rehmat Khan was real brother of Ahmad Khan.
7. He gave evidence for the expenses incurred on improvements and execution of receipt Exh. D-2. He was little inimical to the plaintiff, besides having close relationship with Ahmad Khan father of the vendees. He was also witness to the registered sale-deed and had appeared for the vendees before the Sub --Registerar. D.W.4 gave evidence in support of receipt Exht. D-1 and payment of money mentioned in it to Mst. Amanat Bibi. His statement was unconvincing. Lastly appeared Naseer Ahmad one of the defendants as D.W.5. He gave evidence about payment of the sale price in the sum of Rs.70,000 to Mst. Amanat Bibi and making of improvements on the land and the expenses incurred on this score. In cross-examination, he admitted that Rehmat Khan was his paternal-uncle and Ata Muhammad was cousin of Rehmat Khan. Suggestion given to him that receipts Exh. D-1, D-2 were falsely prepared was denied by him. With this evidence, defendants closed their side of defence except for the request of appointment of a local Commissioner for assessm ent of expenses of improvements allegedly made on the land in dispute.
8. At this stage, a helpful digression to another branch of litigation having an important bearing on the future course of events was necessary and that was that on 28-6-1983, Mst. Amanat Bibi had brought a civil suit for invalidating general power of attorney and the sale of her land by the registered deed dated 25-10-1979, on account of fraud, fabrication and misrepresentation. Ahmad Khan was defendant No.l in the suit. Naseer Ahmad vendee was shown major and was defendant No.2. Javed Ahmad and Pervaiz Ahmed, defendants Nos.3 and 4 were minors and their brother Naseer Ahmad who himself was defendant No.2 in the. suit was proposed as their guardian ad- litem for purposes of the said suit. Copy of the plaint, written statement, if any, and the order-sheet maintained by the trial Court in the aforesaid suit were not made part of the record either in the Courts below or here. Therefore, the stages through which the suit passed were not ascertainable to this Court. On 13-2-1984, Ahmad Khan defendant No.l identified by Ch. Ghazanfer Ullah Cheema, Advocate made a statement before the trial Court that he had no objection to the cancellation of the power of attorney because the parties had arrived at compromise. The trial Court recorded his statement which he signed. Simultaneously, Naseer Ahmed defendant No.2 identified by the same Advocate recorded his statement before the Court that the matter had been compromised and, therefore, he had no objection to the cancellation of the sale-deed. He signed his statement alongwith the Advocate who put his signatures on the file of the Court. Thereupon, the trial Court made following order: "In accordance with the statements of the defendants, the suit of plaintiff is decreed in favour of plaintiff against the defendants on ground of compromise. File after proper arrangement be consigned to record room. signed Civil Judge". Ex facie, the requirement of Order XXXII, Rule 7, Civil P.C. did not appear to have been attended to or observed.
9. On 16-5-1984, Mst. Amanat Bibi presented a petition under Order I, Rule 10, Civil P.C. for joining the proceedings in the pre-emption suit instituted by respondent Khuda Dad. It was allowed on 15-7- 1984, by the trial Court subject to payment of Rs.25 as costs to the other side. Amended plaint after her incorporation was filed by the plaintiff, wherein, Mst. Amanat Bibi was shown as defendant No.4.
10. She filed her separate written statement. In it, she pleaded that Mukhtar-Nama and the sale-deed attributed to her were fraudulently managed by Ahmad Khan from her and those two documents had been annulled by the Civil Court, and therefore, the pre-emption suit could not proceed. In view of the amended pleadings, on 3-12-1984, the trial Court added an additional issue No.6-A which read as follows:- "Whether father of the defendants Nos.l to 3 got the property in dispute transferred in his name fraudulently and the sale-deed has been cancelled, if so, its effect upon the suit? OPP (2) Relief". Upon addition of the above issue, Mst. Amanant Bibi produced two witnesses namely Muhammad Arshad and Ghulam Haider as D.W.1 and D.W.2 and herself appeared in the witness-box as D.W.3. She gave evidence that she was abducted and some papers were manipulated from her. She admitted that she was wedded to Ahmad Khan but deposed that she was coerced into it and she had already filed a suit for setting aside of her Nikah with Ahmad Khan. She said that she was residing with her uncle at Aiman Abad. Her witnesses also supported her. D.W.1 was a relation of Ahmad Khan. Last in the line was Khuda Dad plaintiff himself.
11. He deposed that the land in dispute was sold by Mst. Amanat Bibi for a sum of Rs.30,000 and neither the vendees nor Mst. Amanat Bibi was owner of the estate. In cross-examination, he denied that his son had abducted Mst. Amanat Bibi but deposed that Ahmad Khan had abducted her for the land owned by her. He also deposed that the suit land was transferred by him in favour of his sons. In further cross-examination, he deposed that Ahmad Khan was already married before he abducted Mst. Amanat Bibi and he (Ahmad Khan) had managed Mukhtar-Nama from Mst.
12. Amanat Bibi during the course of trial of abduction case.
13. Upon consideration of above material, the trial Court dismissed the pre-emption suit, on 24-2-1986.
14. It found that plaintiff had superior right of pre--emption qua the vendees; the land was sold for Rs.70,000; improvements worth Rs.15,000 were made on the land and the vendees were entitled to be reimbursed; and finally the sale was cancelled and there was no evidence that it was attended by collusion. In appeal, the view of the trial Court was reversed, on 15-4-1986 by learned Additional District Judge, Gujranwala with the consequence that pre-emption suit was decreed subject to payment of Rs.85,000 by a specified date. Thereupon, the instant civil revision was filed in this Court and was admitted, on 4-5-1986.
15. Facts of the case, evidence produced in it by the parties, and conclusions arrived at in the lower Courts had been summed up above in sufficient details. Point for decision was the effect of the cancellation of the sale-deed on the pre-emption suit. It was correct that pre-emptor was not a party to the civil suit filed for cancellation of Mukhtarnama and consequent sale-deed. It was also correct that two of the defendants in the civil suit filed by Mst. Amanat Bibi were minors and were sued through their real elder brother as guardian ad-litem. It was also not denied that the trial Court did not observe the requirements of Order XXXII, Rule 7, Civil P.C. for saying that the compromise/adjustment was in the interest of minor-defendants. Nonetheless, father of the vendee-defendants, was a party to the suit. Elder brother of the minor defendants acted as their guardian ad-litem. Their father held a general power of attorney from Mst. Amanat Bibi and on its basis sold her entire land to them. Minor sons had no independent source of income. Same may be true of Naseer Ahmad. Not a single penny was shown to have been paid to the vendor in the sale- deed. Purchase-price was received by Ahmad Khan prior to execution and registration of the sale- deed. Upon these premises, there was little difficulty to hold that there was no real conflict of inter se interests between the father and his sons or between the elder brother and his two younger brothers for whom he acted as guardian ad-litem. Minors' interests were sufficiently safeguarded by the father and the elder brother. On record, there was enough evidence to hold that Mst.
16. Amanat Bibi was subjected to sharp practice and stripped off of her valuable land taken by her from her former husband. Mukhtarnama was not placed on file. It was executed and registered at Ahmad Pur Sharqia. It gave some indication that Mst. Amanat Bibi was then residing at Ahmadpur Sharqia. There was also evidence that Mst. Amanat Bibi was abducted and in the state of that affliction, a power of attorney was extracted from her and on its basis, within few months, she was deprived of her entire land measuring 23 Kanals and some Marlas. Though a receipt for payment of Rs.70,000 to Mst. Amanat Bibi was brought on the file of pre-emption suit, yet, there was to sufficient proof of its genuineness. It did not find mention in the registered sale-deed executed by Ahmad Khan in favour of his sons. Mst. Amanat Bibi denied to have received a single penny of herland. Though the suit instituted by her was decided on consent, yet, there was no proof of any collusion between her and the defendants of her suit. It was neither pleaded in the plaint of the pre-emption suit nor asserted by Khuda Dad pre-emptor in his statement on oath recorded by the trial Court. Also, there was no evidence that Mst. Amanat Bibi knew of pendency of the pre-emption suit in respect of the sale of her land and omitted the pre-emptor from her suit. In my opinion, it was not a case of mere resale of the land to the vendor for avoidance of pre-emption but was a clear case of cancellation of the sale of land on grounds of fraud and misrepresentation. Therefore, upon avoidance of the sale, pre-emption suit instituted by Khuda Dad must fail. Upon this view of the record and circumstances of the case, this revision petition shall succeed.
17. Having regard to the aforesaid, civil revision is allowed; Impugned judgment and decree of learned Additional District Judge, Gujranwala dated 15-4-1986 are set aside and those of the trial Court dismissing the pre-emption suit are restored with no order as to costs in this Court.
18. Records be returned.