1. Mst. Sakina Bibi sold 38 Kanals 16 Marlas of land situate at Mauza Khiali Shahpur of Tehsil Gujranwala to Sultan Ahmad and Khurshid Alam sons of Ch. Nawab Din for a sale price of Rs.30,000 vide a sale-deed executed on 14-2-1966 and, registered on 15-2-1966. Muhammad Sadiq claimed pre--emption in respect of the sale. He asserted his superior right of pre-emption on the ground of being real son of the vendor. Pre-emption suit was instituted by him, on 9-2-1967, in the Civil Court at Gujranwala. Since Sardar Khan son of Muhammad Din had, meanwhile, successfully pre- empted the sale through a Court decree passed on 20-10-1966, he was also impleaded-as defendant No.3' in the pre-emption suit instituted by Muhammad Sadiq. Decree in his favour was characterised as collusive with the vendees-defendants Nos.l and 2.
2. Defendants Nos.l and 2 submitted a joint written statement. They admitted material averments in the plaint but denied that the decree passed in the pre-emption suit in favour of Sardar Khan- defendant No.3 was collusive. Defendant No.3, in a separate written statement averred that plaintiff (Muhammad Sadiq) was minor and the suit fled by him without assistance of a next-friend was defective and in the event of amendment to the plaint, he reserved his defence to raise an objection on account of bar of limitation; pre--emption suit was instituted in collusion with defendants Nos.l and 2 to harm the interests of the answering defendant; plaintiff was estopped by his words and conduct to file pre-emption suit inasmuch as, the land was sold for his benefit in so far as the land in villages Mai and Chandarkey were purchased with the sale price of the suit land; plaintiff had no cause of action against the answering defendant. On merits, it was averred that in the suit brought by answering defendant, a compromise decree was passed, on 20-10-1966 subject to payment of Rs.25,225 which he deposited in Court in time fixed in the pre--emption decree and the vendees now being repentant had introduced the plaintiff for undoing the compromise.
3. On 9-5-1967, trial Court framed as many as nine issues including an issue on relief. These were:--
(1) Whether the plaintiff has a superior right of pre-emption than that of the defendants-vendees and Sardar defendant No.3? OPP.
(2) Whether the sale price of Rs.30,000 was bona fidely fixed or actually paid? OPD.
(3) If not, what is the market price of the land in suit? OPP.
(4) What is the effect of Sardar having obtained the decree for a sum of Rs.25,220? OPD.
(5) Whether, the decree for pre-emption obtained by Sardar defendant against defendants Nos.l and 2 is collusive? If so, with what effects?
4. OPP.
(6) Whether Muhammad Sadiq plaintiff is a minor? If so, with what effects? OPD No.3.
(7) Whether, the present suit is collusive and has been instituted at the instance of defendants Nos.l and 2? OPP.
5. (8)Whether, the plaintiff stands estopped by his conduct to raise the dispute? OPD No.3.
(9) Relief.
6. No other issue was claimed by the parties. P.W.1 Rehmat Ali gave evidence that plaintiff was son of Fazal and Mst. Sakina Bibi was his mother. He was 19-1/2 years of age. In cross-examination, he deposed that name of grand--father of the plaintiff was Mehr Dad and denied the suggestion that his real name was Mir Dad. The statement of P.W.1 was recorded, on 7-9-1967. On the same day, an extract from the birth register pertaining to the plaintiff-Exh. P.1 was produced and affirmative evidence except for the statement of the plaintiff in affirmative and rebuttal, was closed. Thereafter, the pre-emption suit was adjourned for defendants evidence on 25-i1-1967. On the adjourned date of hearing, issue No.6 was recast in the form given below:--
6. Whether, the plaintiff was major at the time of the filing of suit? If not, with what effects? OPP.
7. Once again, the suit was fixed for the plaintiffs evidence. Thereupon, Fazal son of Mir Dad, father of the plaintiff, appeared as P.W.1 and gave his statement on oath. He deposed that his father was Mir Dad. He was called Mehr Dad also. He stated that plaintiff was his real son and was of 20 years of age. He was born in the month of "Chet" after creation of Pakistan. With his statement, affirmative evidence was again closed on 22-1-1968 and the statement of the plaintiff, both in affirmative and in rebuttal, was reserved till after close of defendants' evidence. Thereafter, the defendants commenced their evidence. D.W.1 Khurshid Alam, one of the vendees, deposed in chief- examination that since pre-emption decree was already passed against defendants No.l and 2, therefore, they shall not produce any evidence. Plaintiff did not cross-examine his statement.
8. However, defendant No3 subjected him to somewhat extensive cross-examination. In his cross- examination, the witness deposed that Muhammad Sadiq plaintiff purchased four acres of land for Rs.16,000 after the sale of the land in dispute by her mother. He denied the suggestion that defendants No.l and 2 forced the pre-emption suit instituted by him. He also denied the suggestion for exchange of land purchased by him with defendants Nos.1 and 2. Sultan Ahmad, co-vendee and defendant No.l in the pre-emption suit, appeared as D.W.2. He also stated that since pre- emption decree was already made against him, he shall not produce any evidence. Plaintiff did not cross-examine him, but the defendant No.3 availed of his presence and subjected him to cross- examination on the lines of cross-examination directed towards the statement of D.W.1, but nothing material was elicited. D.W.3 Ghulam Muhammad deposed that plaintiff was born in Baisakh of the year 1949. He further deposed that Mst. Sakina Bibi had sold the land and with the sale-price had purchased the land in Mauza Chandarkey in the name of the plaintiff. He also deposed that plaintiff evinced no intention of claiming pre--emption and stated that the land purchased by the plaintiff shall eventually be exchanged with the defendants and the pre-emption suit was being financed by defendants Nos.l and 2. The witness was subjected to cross-examination to test his veracity. He mostly showed ignorance of the questions put to him. Ahmad Din D.W. gave evidence that Fazal Ahmad had assured not to pre-empt the sale and the pre-emption suit was filed by the plaintiff at the instance of defendants No.l and 2 and they were financing it. He also deposed that eventually the plaintiff intended to exchange his4and with defendants No.l and 2. Sardar Khan defendant No.3 himself steppe in the witness-box as D.W.3. He deposed that he pre-empted the sale in favour of defendants No.l and 2 and his pre-emption suit was decided on special oath. He further deposed that he alongwith Ghulam Muhammad and Ahmad Din had inquired from the parents of the plaintiff, whether they intended to pre-empt the sale and they had assured that they did not wish to pre-empt the sale. He also deposed that the pre-emption suit was filed by the plaintiff at the instance of defendants No.1 and 2 and they were bearing its expenses. He further deposed about proposed exchange of land. In addition to oral evidence defendant No.3 relied upon documents marked Exhs.D.l to D.10. These consisted of copies of sanctioned mutations; registered sale-deeds and a copy of Shajra Nasb. After the close of defendants' evidence, the plaintiff Muhammad Sadiq himself entered the witness-box. He deposed that the name of his paternal-grandfather was Mir Dad alias Mehr Dad and that he had instituted pre-emption suit in his own interest and for his own benefit. He deposed that he did not consent to the sale in favour of defendants Nos.l and 2 and that he had no knowledge of the pre-emption suit instituted by Sardar Khan defendant No.3. In cross-- examination, he deposed that he had himself purchased the land in village Chandarkey and that he cultivated the land of his Father. He also deposed that the land purchased by him was sold by him to defendants Nos.l and 2. He denied the suggestion that the sale of the land by him was a sham transaction.
9. As for documentary evidence, Exh.P.l was an extract from birth register maintained at Police Station Saddar Gujranwala for the year 1949. In it, Muhammad Sadiq, Jat Cheema, son of Fazal son of Mehr Dad was shown born on 5-4-1948. Exh.P.2 was an extract from Register Haqdaran Zamin for the land in suit pertaining to the year 1961-62. It showed the land in dispute in ownership of Mst. Sakina Bibi and in possession of Sardar Khan, Rehmat Khan sons of Muhammad Din as non-occupancy tenants. In Kaifiyat column of the Jamabandi, reference to Mutation No.3474, dated 7-4-1966 pertaining to the sale of the land by Mst. Sakina Bibi in favour of defendants Nos.l and 2 was recorded. It was a note in red ink which showed that mutation had already been attested. Exh. P.3 was copy of the registered sale-deed of the land sold. Exh.D.1 was an extract from Register Haqdaran Zamin of Mauza Chandarkey for the year 1965-66. It showed that Ali Ahmad, Fazal Ahmad sons of Mir Dad owned land recorded in it. Presumably, the extract was put in evidence to show that the name of father of Fazal Ahmad was Mir Dad. Exh.D.2 was a copy of Shajra Nasb for the year 1961-62. It showed that Ali Ahmad and Fazal Ahmad were sons of Mir Dad son of Natha.
10. Exh.D.3 was an extract from birth register maintained at Police Station Saddar Gujranwala for the year 1949 which showed that Sadiq Ali son of Fazal Abmad son of Mehr Dad was born on 3-5-1949.
11. Copy of registered sale-deed Exh.D.8 revealed that Muhammad Sadiq son of Fazal Ahmad had purchased 14 Kanals 2 Marlas of land in Mauza Chandarkey from Fateh Muhammad and Roshan sons of Karam Dad for a sum of Rs.6,500 on 23-2-1966. Endorsement on the sale-deed by the Registrar showed that Muhammad Sadiq himself paid the sale-price. Copy of the registered sale- deed Exh.D.9 showed that Muhammad Sadiq son of Fazal Ahmad of Mauza Chandarkey purchased 10 Kanals 7 Marlas of land, in Mauza Jalal from Fateh Muhammad, Roshan sons of Karam Dad for a sum of Rs.5,000 on 12-3-1966. Here also, Muhammad Sadiq vendee was shown to have paid the sale-price to the vendors. Copy of registered sale-deed Exh.D.10 showed that Muhammad Sadiq son of Fazal Ahmad, Jat Cheema of Mauza Chandarkey, purchased 11 Kanals, 2 Marlas from Mst.
12. Bhollan widow of Hakam, Mst. Rasul Bibi daughter of Hakam and Mst. Rehmat Bibi sister of Hakam of Mauza Chandarkey for a sum of Rs.5,000 on 23-2-1966. Here also, the vendee paid the sale price himself. By Sale Mutations Nos. 16, 44, 15, attested on 9-2-1967, Exhs.D.4, D.5 and D.6, Muhammad Sadiq was shown to have sold out the land purchased by him in Mauza Chandarkey and Mauza Jalal to Sultan Ahmad and Khurshid Alam defendants Nos.l and 2 in the pre-emption suit. Above was the complete survey of the evidence, oral as well as documentary, adduced at the trial of the suit.
13. Upon review of the record, on 23-6-1969, trial Court decreed pre--emption in favour of Muhammad Sadiq subject to his paying Rs.25,220 as sale price of the land before 2-9-1969, failing which his suit was deemed to have been dismissed with costs. Under issue No.l, the trial Court found that the plaintiff, as son of the vendor, had superior right of pre-emption. Under issue No.2, it found that Rs.25,220 was paid as the sale price of the land. In view of finding on issue No.2, issue No3 was left undecided. As regards issue No.4, it was held that pre-emption decree in favour of Sardar Khan had no adverse effect on the right of Muhammad Sadiq to succeed, since his right was superior to him also. On issue No.5, it was observed that there was no evidence to support collusion. This issue was accordingly resolved. As regards issue No.6, it was found that the plaintiff was major at the time of institution of the pre--emption suit by him and, even if in terms of Exh.D.3, it be found that he suffered from the- disability of minority, since he had attained majority in course of the trial of the pre-emption suit, the defect was curable without materially affecting the decision of the pre- emption suit on merits. Issues Nos.7 and 8 were taken together and answered against defendant No.3.
14. Against the judgment and decree of the trial Court, Sardar Khan defendant No.3 preferred an appeal. In it, findings on issues Nos.6 and 7 alone were assailed. Learned lower Appellate Court on reappraisal of the record, found them against the appellant and dismissed his appeal, on 9-3-1970. thereupon, second appeal was brought in this Court. It was admitted on 6-5-1970. It was taken up for hearing on 27-11-1993. .
15. Ch. Muhammad Anwar Bhindar, Advocate appeared for the appellant. CA. Rehman, Advocate represented respondent No.l. Respondents No.2 and 3 did not choose to enter appearance at the hearing. Let me at the out-set point to a difficulty experienced at the commencement of the hearing of this second appeal. Ch. Muhammad Anwar Bhindar, Advocate was unable to assist. He submitted that a few days earlier, appellant had taken away the brief from him and, therefore, he was unable to argue the appeal. Since his power of attorney was on file and had not been terminated by the Court, he continued to represent the appellant. Prior to the fixation of the case for hearing on 27-11-1993, neither the appellant nor the learned counsel informed the office about the removal of the brief from the learned counsel. Sub-rule (2) of Rule 4, Civil P.C. was enacted for the benefit of the Court. Registered post--card was also issued to the appellant for the date of hearing fixed on 27-11-1993. He shall be presumed to have received the intimation sent to him from the Court. Presumably, he attended the hearing. Reader to the Court also affirmed his presence. As it was a twenty-three years old appeal emanating from a pre-emption suit instituted in the trial Court on 9-2-1967, I felt extremely reluctant to put it off further. Therefore, I decided to hear it. .Learned counsel for the appellant also gave some points but the record was read out by Mr: CA.
16. Rehman, Advocate, learned counsel for respondent No.l. I myself also examined the record with minute care to avoid a possible failure of justice.
17. Seen from the above, three points of importance arise for consideration. First; whether the plaintiff was minor at the time of institution of pre-emption suit by him and its effect on the suit. Second; whether the pre--emption suit was instituted in collusion with defendants Nos.l and 2 and was an exercise in Benami. Third whether the plaintiff had waived pre--emption.
18. Apart from the oral evidence noticed above, there were two extracts from the birth register maintained at Saddar Police Station Gujranwala. These were Exhs.P.l and D.3. In Exh.P.l, Muhammad Sadiq was shown to have been born on 5-4-1948. In it, Fazal son of Mehr Dad was shown his father.
19. The entry was recorded at serial No.10 of the Register No.lll. The birth entry was recorded in the register on 16-5-1949. In Exh.D.3, Sadiq Ali son of Fazal Ahmad son of Mehr Dad was shown to have been born on 3-5-1949. The birth entry was recorded in the register on 16-5-1949 in Register No.lll of the year 1949 at serial No.7. The trial Court found that the entries in Exh.P.l synchronised with the plaintiff. Lower appellate Court shared its view. I was also inclined towards the correctness of this view. If Muhammad Sadiq was taken to have been born on 5-4-1948, he shall have already attained majority on the date of the filing of the pre-emption suit on 9-2-1967. Conversely, if his date of birth was taken on 3-5-1949, he shall then attain majority on 3-5-1967.Even in that eventuality, the decision on merits shall not be prejudicially affected. Order XXXII of Civil P.C. dealt with suits by or against minors and persons of unsound mind. Its first rule provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Succeeding rule 2 provides for a penalty for infraction' of rule 1. It says, where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Sub-- rule (2) of Rule 2 ordains that notice of such application shall be given to such person, and the Court, after hearing his objections (if any), may make such order in the matter as it thinks fit. Minority shall either be apparent or latent discoverable on inquiry by the Court. In (Pupooth alias Komancheri) Rarichan alias Ramanunni Kurup v. Vayisravanth Manakkal Raman and another AIR 1923 Madras 553, it was held by a Division Bench of the Court that "Order 32, rule 2 of Code of Civil Procedure is applicable only, when on the face of the plaint, the plaintiff appears to be a minor, see Beni Ram Dutt v. Ram Lai Dhukri (1892) 13 Cal, 189). That case was decided under the old Code but the new Code makes no change on the point. If on an issue raised and tried in the case, the Court finds that the plaintiff is a minor, it should not dismiss the suit A at once but should allow a reasonable time for a next friend to come on record and go on with the suit and it is only if no one comes forward that it should reject the plaint. Beni Ram Dutt v. Ram Lal Dhukri (1892) 13 Cal.
20. 189 is an authority for this proposition also. In the present case before the Court decided that the plaintiff was a minor, he had become a major and there was no necessity thereafter to have a next friend for him. Plaintiff may no doubt have elected to drop the present suit as not properly instituted but he was not bound . to do so; he could affirm the previous proceedings and continue the suit. That is the principle embodied in Order 32, Rule 12. A somewhat similar case was considered in Sankara Nambi v. Davaki Antherjanom (1922 Mad. 259) and it was ruled there that "when a next friend has been appointed, the objection that the suit was originally by a minor without a next friend can no longer be urged." In Mt. Durga Devi and another v. Gur Narain (AIR 1924 Lahore 157), Harrison, J. took the view that "where the fact of plaintiff's minority is ascertained upon objection by the defendant and an enquiry by the Court, and it is held that the plaintiff had no knowledge of his minority and no intention of deceiving the Court, an opportunity should be given on application being made to amend the plaint". In Ali Ahmad v. Said Mina and another (AIR 1924 Lahore 188(1), a Division Bench of the Court observed that "where during the course of suit, the Court finds that plaintiff is a minor and has filed the suit without a next friend, the proper procedure is not to reject the plaint but to suspend all proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend". View taken in (AIR 1923 Madras 553) and AIR 1924 Lahore 188(1) was followed by this Court in Mian Ghulam Hasan and 4 others v. Aqeel Ahmad Khan Additional District Judge, Lahore and 8 others (PLD 1982 Lahore 424 by Muhammad Ilyas, J. In Ebrahim Fikree and others v. Taufiq Fikree and others (1987 CLC 2224 (Karachi), Saleem Akhtar, J. now a Judge of Supreme Court, took the view that the expression "taken off the file" was not equivalent to rejection of the plaint or dismissal of the suit. His Lordship, in taking this view, had relied upon the previous case-law in AIR 1924 Lahore 188(1), AIR 1928 Calcutta 537, AIR 1928 Madras 558 and PLD 1982 Lahore 424. In Bachh Raj v. Sunder Mal and others AIR 1963 Rajasthan 119, construing Order XXXII, rules 2(2), and, 3(1) of Civil P.C., a Division Bench of the Court in para 7 (at page 122) observed:-- "The words, `may make such order in the matter as it thinks fit" appearing in sub-rule (2) should be fairly construed to empower a Court to permit the suit instituted by or on behalf of a minor to be continued after taking steps to see that a next friend of the minor is named and brought on record to conduct the suit on behalf of the minor. In our opinion, it will not be correct to conclude that the rule contemplates merely an order taking off the plaint. On a fair construction, it does contemplate an alternative order for rectification of the error and the continuance of the suit. Similarly, rule 3 shows that the plaint need not necessarily mention the guardian ad-litem of the minor defendant.
21. Sub-rule(1) clearly provides that where the. defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. In fact, according to the true construction of Rule 3, there can be guardian ad-litem of the minor only under the orders of the Court.
(8) On the basis of the language of rule 2 and rule 3 we feel inclined to take the view that subsequent steps taken by a party to secure the proper representation of the minor, whether he is a plaintiff or a defendant, can validate the earlier irregularities, if any, in the mention of the next friend or guardian ad-litem of the minor."
22. In Keshav Deo Tulshan v. Jagadish Prasad Tulshan (AIR 1973 Calcutta 83), it was ruled that the object of Rule 2 of Order 32 was to enable the Court to regularise the irregularity of filing of suit by minor .without a next friend, under sub-rule (2) as soon as it is brought to the notice of the Court. In the instant case, the disability was not apparent. The plaintiff in terms of Exh.P.l was already major and even in terms of Exh.D.3 was bordering on majority. There was no intent to deceive the Court or to gain an unfair advantage from the defendants. At the most, the mistake could be ascribed to a bona fide doubt as regards the age and the defect then was of a formal character not affecting merits of the case. As for myself, I was convinced that on record the plaintiff was shown major on the date of filing of pre-emption suit by him and in the registered sale-deeds by which he, purchased parcels of land and then sold them by three mutations, he had acted as major.
23. Therefore; the issue No.6 was rightly resolved in the lower Courts.
24. As regards pleas of collusion and waiver, there was no convincing proof. As an ordinary rule, there is a presumption that a person acts for his own benefit to promote his own interest. Collusion was required to be proved by defendant No.3. He has failed to discharge the burden of proof placed on him in this behalf. The purchase of land by Muhammad Sadiq and its subsequent sale could not establish collusion. Waiver is a course of conductinconsistent with the intention of asserting a right. There was no evidence that the plaintiff had ever evinced such an intent or conduct and was, therefore, estopped to assert his right of pre-emption.. Second appeal must, therefore, fail. By a short order, second appeal was dismissed with costs, on 27-11-1993 for reasons to follow later. Above are my reasons in support of the short order staying execution of the pre-emption decree is recalled. Records be returned,