' The facts relevant for the decision of this second appeal are that Muhammad Boota was owner of the land measuring 22 Kanals 3 Marlas. He sold the same for a total consideration of Rs,5,000 to Ahmad Din through an oral sale, which was reflected in the Revenue Record by Mutation No,709, dated 16-5-1966. Allah Ditta, Hayat and Barkat, predecessors-in-interest of the present appellants filed a suit to pre-empt the sale on 26-7-1966. The suit was still pending when Muhammad Boota the vendor filed a suit for declaration to the effect that he is owner in possession of the suit land and the Mutation No,709 is illegal, ineffective and against his rights being product of fraud and misrepresentation. This suit was filed on 12-10-1966. Ahmad Din the vendee did not contest the same and instead confessed the judgment. The result was that the suit was decreed on 31-10-1966 and Mutation No,713 was entered in pursuance of this decree and attested on 19-12-1966.
Thereafter, Muhammad Boota died and the land was inherited by respondents Nos.3 and 4 in the ratio of 2/3rd and 1/3rd. The mutation of inheritance was attested on 30-1-1967. Thereafter, respondents Nos.3 and 4 sold the land to Khushi Muhammad, respondent No,1 through sale-deed registered on 8-3-1967. The suit for preemption was still pending. The plaintiffs in the said suit proceeded to implead respondents Nos.1, 3 and 4 but none of them appeared, therefore, they were proceeded ex parte while Ahmad Din made a statement that he had no objection to the suit being decreed. Accordingly, the pre-emption suit was also decreed on 29-11-1967. Mst. Zainab Bibi, respondent No,3 filed a time-barred appeal against this judgment and decree in the pre-emption suit but the same was dismissed as time-barred and it was held that she had no locus standi to maintain the appeal. The judgment and decree is dated 24-9-1969. Thereafter, respondent No,1 filed a suit on 15-10-1969 for setting aside the ex parte decree, dated 29-11-1967 in the pre-emption suit. The appellants resisted the suit. The trial Court accordingly framed the following issues:---
(1) Whether the disputed decree, dated 29-11-1967 is illegal, void and inoperative up to the rights of the plaintiff? OPP
(2) Whether the suit is time-barred? OPD 1 to 3.
(3) Whether the suit is barred by res judicata? OPD 1 to 3.
(4) Whether the present suit is not maintainable? OPD 1 to 3
(5) Whether the description of the suit land is correct, if not, what is its effect? OPP
(6) Whether the valuation of suit for purposes of court-fee and jurisdiction is correct, if not, what is the correct valuation? OPP
(7) Whether the plaintiff is estopped by his conduct to file the present suit? OPD 1 to 3
(8) Relief.
' Respondent No,1 examined Muhammad Fazil as P.W.1 and himself appeared as P.W.2 while Hayat Muhammad one of the defendants appeared as D.W.
1. The trial Court after hearing the arguments decreed the suit vide judgment dated 5-10-1972, which was assailed through an appeal before the first appellate Court, which accepted the appeal and remanded the case for a fresh decision to the trial Court vide judgment and decree, dated 15- 5-1973. The trial Court once again decreed the suit vide judgment dated 6-7-1974, which was assailed through an appeal before the first appellate Court, which this time dismissed the appeal of the defendants vide judgment and decree, dated 20-4-1980. Now this regular second appeal, which was admitted to hearing and notice was issued to the respondents, who have entered appearance through Syed Jamshed Ali, Advocate and contested the appeal.
2. Ch. Muhammad Anwar Bhindar, Advocate, learned counsel for the appellants argued that issue No,1 was wrongly and illegally decided by the Courts below because Khushi Muhammad and for that matter his predecessors-in-interest Mst. Zainab Bibi and Mst. Aisha Bibi were not a necessary party as they stepped into the shoes of the vendor Muhammad Boota. In this behalf the learned counsel has referred to the cases reported as Boota Singh v. Rahim Bakhsh AIR 1927 Lah. 283, Paira Ram v. Keshonath AIR 1924 Lah. 156 and Nasir Muhammad Khan v. Faial and others PLD 1965 (W.P.)
Lah.
434. The second argument is that the decree passed in the suit for pre-emption was valid and the onus heavily was on the plaintiff Khushi Muhammad. The next argument is that Khushi Muhammad was party to the appeal filed by Mst. Zainab Bibi against the decree of the trial Court in the suit for pre-emption, therefore, he is bound by the same. In the fourth place it is argued that the decree dated 31-10-1966 whereby the sale was set aside was at the best retraction of sale, therefore, of no legal consequence because right to file suit for pre-emption had already accrued in favour of the pre-emptor. It is explained that the vendee/vendor can adopt all legal measures to defeat the right of pre-emption but this does not include re-sale. The learned counsel in this behalf has referred to the cases reported as Rehmat Ali v. Ahmad Yar 1990 SCM R 707, Pal Singh and another - v. Jamun and others 11 PR 1919, Imami v. Allah Diya 24 PR 1918 and Muhammad Khan and another v.
Zir Mir Khan and others 1981 CLC 129. The arguments on this issue are concluded with the submission that the second transaction was hit by the principle of pendente lite, therefore, it has no adverse effect on the decree in favour of the pre-emptoRs, The learned counsel in this behalf has referred to the case reported as Nawab Din v. Sardar 1988 CLC 1018 and Ghulam Haider and others v. Hayat Muhammad and others 1994 CLC 1852.
3. On the other hand, the learned counsel for the respondents argued that there is nothing on the record to show that the suit for pre-emption was filed before the sale was set aside through decree in the suit for declaration filed by the vendor. In this behalf it was explained that the suit was filed against the heirs of Muhammad Boota, therefore, presumption is that the suit was filed after the decree in the suit of Muhammad Boota. The next argument is that since the sale disappeared and became non-existent, the question to pre-empt the same did not arise. In this behalf the learned counsel has referred to the case reported as Saidan Gul v. Mst. Shughla and 8 others NLR 1980 Rev.
177. The third submission is that ex parte decree is no decree, therefore, there was no decree in favour of the pre-emptors before 31-7-1986. Hence their suit cannot be decreed in view of the rule laid down by the Hon'ble Supreme Court in the case of Government of N.-W.F.P. Department v. Said Kamal Shah PLD 1986 SC 360. The learned counsel added that the moment the ex parte decree is set aside the same becomes non-existent. In this behalf the learned counsel has relied on the judgments in the cases reported as Karim and 9 others v. Hassan Ashraf and others 1989 CLC 174 and Sajjad Hussain v. Mehrban 1989 CLC 1727. The next submission is that the appellants have failed to prove a valid sale to maintain the suit for pre-emption. It is added that they have not even cared to place copy of the sale mutation on the record. The next submission is that the appellants have miserably failed to prove service of respondent No,1 in the pre-emption suit. In this behalf it is added that to discharge onus of this issue the statement on oath of the plaintiff was sufficient.
Then it was for the appellants to prove due service because a party cannot be asked to prove negative. The next submission is that the principle of lis pendence is not attracted to the facts of the present case. Moreover, date of institution of pre-emption suit was given. The next submission is that Mst. Zainab Bibi had no locus standi to file the appeal against the decree in the preemption suit and her appeal was dismissed, also, as time-barred. The principle of merger would not come into play unless the decision of the appellate Court was on merits. In this behalf the learned counsel has referred to the cases reported as Kalimuddin v. Esabakuddin AIR 1924 Calcutta 830, Ram Ralchan v. Govind Das AIR (33) 1945 All. 352 and Atul Chandra Das v. Bhagbati Das PLD 1967 Dacca 27. The next submission is that the suit was not barred by res judicata because the subject- matter was quite distinct. In this behalf the learned counsel has referred to the case reported as Mercantile Fire & General Insurance Co. Of Pakistan Ltd. k. Messrs Imam & Imam Ltd. 1989 CLC 2117.
While summing up the arguments it is added that it is a case of concurrent findings of fact recorded by the two Courts below, therefore, not a fit case for interference in second appeal.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, the provisions of law and the precedents. The first argument that Khushi Muhammad and for that matter his predecessors-in-interest were not necessary party as they stepped into the shoes of the vendor Muhammad Boota does not require any serious consideration in view of the next argument that the decree in the pre-emption suit was valid and the onus was heavily on the plaintiff Khushi Muhammad to prove otherwise. The appellants on the other hand desired to bind Khushi Muhammad by the decree and on the other hand it is maintained that he was neither necessary nor proper party. The fact is that he was impleaded and decree was passed. Therefore, there is no merit in the argument. The main point in this appeal is whether the decree passed in the suit titled 'Muhammad Boota v. Ahmad Din' created any right?
The argument on behalf of the appellants is, as already noted in the opening para. That it at the best was a resale or retraction, therefore, would create no legal consequence qua the claim of Allah Ditta etc., the plaintiffs in the pre-emption suit. The learned counsel in this behalf has referred to the case reported as Rehmat Ali and others v. Ahmad Yar 1990 SCM R 707. It was a case of re- sale by the vendee. It was held that right of pre-emption cannot be defeated by means of re-sale of property in favour of a vendor, unless the vendor shows that in spite of his having sold the land, he had retained some right in its akin to that of a person having equal or superior right to that of pre-emptor. The Hon'ble Supreme Court in this judgment noted the cases of Imami (supra), Pal Singh (supra) and a number of other judgments relied on in these two cases. The same was the position in the cases of Muhammad Khan (supra), Pal Singh (supra) and Imami (Supra). These cases are clearly distinguishable because in the case in hand the sale by Muhammad Boota in favour of Ahmad Din was set aside by the decree of the Court dated 31-10-1966. This is not all. This was given effect in the Revenue Record through Mutation No,713 dated 19-12-1966, Exh.P2 while Mutation of Inheritance was sanctioned in favour of Mst. Aisha Bibi and Mst. Zainab Bibi, his heirs on 30-1-1967. Thereafter, they proceeded to sell the land to Khushi Muhammad through the sale-deed dated 8-3-1967 Exh.P1. It is only the valid sale which is pre-emptible. The result of the decree, dated 31-10-1966 was that the sale was adjudged illegal. The same is to be treated as non-existent for all intents and purposes. Therefore, the suit for pre-emption was exercise in futility. The proposition can be looked into from a legal angle, which is more important as to whether it is the purpose of law to give rise to contradictory decrees? The reply is in the negative because the whole scheme of the codified law is to exclude possibility of contradictory decisions in respect of the same lis. I am fortified in my view by the judgment of the Hon'ble Supreme Court reported as Muhammad Nawaz v. Mst. Ahmed Bibi and others 1995 SCM R 466. The appellants or their predecessors-in-interest if genuinely aggrieved should have challenged this decree through a suit because by that time section 12(2), C.P.C. Had not come into existence and was introduced through Ordinance X of 1980. This was not done.
Therefore, the second decree has no legal basis because lis has disappeared. In fact, the plaint was liable to be rejected under Order VII, Rule 11, C.P.C. For want of cause of action.
5. Now coming to the argument that the second transaction was hit by the principle of pendent lite.
The argument is clearly misconceived because the appellants have failed to prove that the suit for pre-emption was not collusive. Secondly, the property can be transferred or otherwise dealt under the authority of the Court. These are the exceptions to section 52 of the Transfer of Property Act.
Therefore, there is no merit in this argument.
6. Now coming to the argument that Khushi Muhammad was party to the appeal filed by Mst.
Zainab Bibi against the decree in the pre-emption suit. The appeal was dismissed as barred by time as well as on the ground that Mst. Zainab Bibi had no locus standi to file the appeal. The learned counsel for the respondents rightly argued that the principle of merger of the decree of the trial Court into that of the appellate Court would not attract unless the decision of the appellate Court was on merits. He has rightly referred to the cases of Kalimuddin (supra), Ram Rakhan (supra) and Atul Chandra Das (supra). Moreover, the appellants failed to prove whether Khushi Muhammad was served in the appeal or not. It is clear from the grounds of dismissal of the appeal that the appellate Court did not undertake adjudication on merits, therefore, Khushi Muhammad was not bound by the same.
7. Now coming to the argument that the onus of the issue was on Khushi Muhammad. There is no dispute about the same. The two Courts below after scanning the evidence on record decided the issue in favour of the respondents. It is a case of concurrent finding of fact. The appellants have failed to make out a case for interference in second appeal.
8. This brings us to the last point that the suit was barred by the principle of res judicata. The argument is utterly misconceived because Khushi Muhammad in the present suit has challenged the validity of the decree in the pre-emption suit, therefore, the suit was not hit by section 11, C.P.C.
9. In the end it is pointed out that the record of the trial Court was badly damaged by rains etc., but the Courts below did not care to reconstruct the same or at least get fresh and legible copies placed on the record. This was not difficult in view of the documents as noted in the opening portion of this judgment. This carelessness on the part of the two Courts below has resulted in wastage of at least one hour of the precious public time. Therefore, for future guidance in similar circumstances the Court seized of the matter should get fresh legible certified copies of documents exhibited placed on the record. At the same time I am thankful to Mr. Muhammad Anwar Bhindar, Advocate and Syed Jamshed Ali, Advocate for rendering valuable assistance both on legal side and reading the worst type of record.
18. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with no order as to costs.