' This judgment will dispose of following four connected appeals:-
(i) Zahoor-ul-Hassan v. Faqir Sain etc. (RSA 907 of 1978).
(ii) Faqir Sain etc. v. Muhammad Rafique etc. (RSA 1043 of 1978).
(iii) Faqir Sain etc. v. Zahoor-ul-Hassan (RSA 1044/78).
(iv) Faqir Sain v. Muhammad Akbar etc. (RSA 1045/78). As they arise out of same judgment and decree.
2. Briefly stated facts of the case out of which these appeals have arisen are that land measuring 36 Kanals two Marlas, situate in the revenue estate of village Sukhnian, Tehsil and District Sialkot was sold by Qadir Bakhsh and others in favour of M/s. Fazal Hussain and Muhammad Hussain, the vendees who are respondents Nos. 5 and 6 before this Court. Zahoor-ul-Hassan son of Ch. Jewan, a collateral of the vendors filed a suit to pre-empt the aforementioned sale. M/s. Muhammad Nazir, Munir Sain and Muhammad Akbar respondents Nos. 1 to 3 as well as the respondents Nos. 4 and 7 also filed rival pre-emption suits on the basis of qualification of being an-owner in the estate. All the four suits were consolidated and contested by vendees. The learned trial Court held proceedings in Suit No, 374/75, titled "Muhammad Akbar v. Fazal Hussain etc." and framed following consolidated issues:-- "(1) Whether the plaintiff had better right of pre-emption to that of the defendant? And if it is not proved who out of the rival pre-emptors if any had better right of pre-emption against the vendee as well as inter se?
(2) Whether the suit filed by Zahur-ul-Hassan defendant is collusive between the vendee and Zahur-ul-Hassan?
(3) Whether the decree obtained by defendants Nos. 5 to 7 is illegal, void?
(4) Whether the pre-emptors have waived their rights of pre-emption?
(5) Whether the price of a suit land at Rs,33,000 was fixed in good faith or was actually paid?
(6) If issue No, 5 is not proved, what is the market value of the suit land?
(7) Whether the vendees spent any amount to execution of sale-deed besides amount paid to the vendees, if so how much and to what effect?
(8) Whether the suit of defendant No, 4 is for partial pre-emption?
(9) Relief."
3. After recording of evidence and holding of trial, it was held by the learned trial Court that Zahoor- ul-Hassan pre-emptor being collateral of the vendor possesses superior pre-emption right qua the other three rival preemptors, hence first decree was passed in his favour and second decree was passed in favour of the three rival pre-emptors, in their equal shares. Aggrieved of this judgment and decree respondents Nos. 1 to 3 filed an appeal before District Courts, Sialkot, which was accepted vide judgment and decree dated 8-10-1978, and the suit filed by Zahoor-ul-Hassan the appellant before this Court was dismissed as being collusive and for the benefit of the vendee suits filed by other pre-emptors were decreed to the extent of 1/3rd share each in the suit land. Said judgment and decree has been challenged in these four appeals, one filed by Zahoor-ul-Hassan pre-emptor and the other three appeals have been filed by Messers Faqir Sain and other respondents Nos. 1 to 3 with the prayers that they are entitled to the grant of decree of the suit land as a whole.
4. Ch. Muhammad Hassan, Advocate, has appeared on behalf of Zahoor-ul-Hassan appellant who is in Appeal No, 907/78, and respondent in other appeals. Mr. C.M. Latif Rawn, Advocate has appeared on behalf of respondents Nos. 1 to 3 in Regular Second Appeal No, 907/78 who are appellants in the other three appeals. Ch. Muhammad Abdullah, Advocate has appeared on behalf of Muhammad Akbar and Muhammad Rafique who are respondents Nos. 4 and 7 in this appeal and are also respondents in the connected appeals.
5. Learned counsel for the appellant has contended that finding of the learned first appellate Court on the issue of collusion between the appellant and the vendees is based upon no valid evidence in the eyes of law, which does not prove that he had filed a suit to acquire land for benefit of the vendee. Elaborating his argument learned counsel contended that the first appellate Court has mainly relied upon the items of evidence showing that copy of Jamabandi appended with the suit was obtained by the vendee, the stamp paper for obtaining of copy of the sale-deed was purchased through Muhammad Maqbool a clerk of the learned counsel for the vendees and that copy of the sale-deed was obtained by the Bashir Ahmad, the real son of the vendee. Learned counsel contends that the above items of evidence do not constitute either collusive or prove the suit. According to the learned counsel as there is evidence on record that all the deposits were made by the preemptor himself, and he himself had been pursuing the suit, which establishes beyond doubt that the suit had been filed by the pre-emptor for his own benefit.
6. In support of this contention, learned counsel has placed reliance on the following cases:--
(1) Mehr Kamir v. Wali Muhammad and 5 others (PLD 1973 Lahore 137),
(2) Ashiq Ali Khan v. Shaffi All Khan and others (AIR 1927 Lahore 872),
(3) Sheru v. Jawahir Singh (58 P.R. 1912 page 219),
(4) Amar Singh v. Kishen Singh and others (202 PLR 1915 (Vol.XVI) page 523),
(5) Jam Pallo v. Bashir Ahmad and another (PLD 1993 Lahore 168).
7. In reply to the arguments addressed by the learned counsel for the appellant, C.M. Latif Rawn, Advocate, learned counsel for the respondents Nos. 1 to 3 has contended that items of evidence taken note of and relied upon by the learned first appellate Court which have been referred to above are insufficient to constitute collusion and hence to prove that the suit had been filed for the benefit of the vendees. He, hence, contends that the findings so rendered by learned first appellate Court is unexceptionable. Regarding claim of real pre-emptors, learned counsel has contended that as Muhammad Rafique and Muhammad Akbar respondents had withdrawn 1/5th of the preemption money after passing of the impugned decree, their suits are liable to be dismissed on this short ground. No other point has been argued by him. Ch. Muhammad Abdullah, Advocate, learned counsel for the rival pre-emptors-respondents Nos. 4 and 7 has supported the arguments addressed by the learned counsel for the appellant.
8. I have considered the arguments addressed at the bar as well as the case-law cited by the learned counsel for the appellant. In case of Amar Singh v. Kishan Singh and others (202 PLR Vol. XVI, 1915 page 523), it has been held that before the suit of the pre-emptor is dismissed on the ground that he is acting in collusion with the vendee and in the latter's interest, it is to be shown by the strictest evidence that his object is really to secure the property for the vendee. His motive to annoy and defeat his rival pre-emptor is not sufficient.
' In case of Sheru v. Jawahir Singh (58 P.R. 1912 page 219), it has been held that withdrawal by the plaintiff in a pre-emption suit of the deposit made under the provisions of section 19(1)(a), Punjab Pre-emption, Act, subsequent to the decision of the suit by the Court of first instance, is no ground for rejection of the plaint by the Appellate Court and does not bar an appeal by the plaintiff. It has further been held that the fact that the pre-emptor was instigated to prefer his claim by the vendees, who supplied him with the necessary funds on a mortgage of the land sold, apparently with the object of defeating another suit by a rival pre-emptor, does not prove that he is acting Benami for the vendees and, therefore, does not debar him from suing. In cases of Sanwal v. Jaigo Mal and others (AIR 1924 Lah. 68), Mst. Bibi Aisha. v. Shadi Khan (AIR 1935 Pesh. 143), Abdul Ghafoor and another v. Mst. Sakina Begum (PLD 1975 Lah. 524), Mst. Sakina Begum v. Mst. Surat Bibi (1981 CLC 398), it has been held that withdrawal of 1/5th of the pre-emption money by the pre-emptor after the suit is decreed in his favour is not fatal to the said decree.
' In case of Ashiq Ali Khan v. Shaffi Ali Khan and others (AIR 1927 Lahore 872), it has been held that in order to prove waiver and collusion in a pre-emption, it is necessary that before a pre-emption suit can be defeated on the aforementioned grounds to establish by the strictest evidence that the object of the plaintiff was really to secure the land for the vendee, and a desire to annoy and defeat a rival pre-emptor is not sufficient.
' In case of Mehr Kamir v. Wali Muhammad and 5 others (PLD 1973 Lahore 137), where suits of two rival pre-emptors were consolidated and heard together it has been held that before a pre- emption suit could be defeated on the ground of waiver and collusion srictest evidence necessary to prove that the object of the plaintiff was to secure the land for the vendee. Mere desire of the plaintiff who was a collateral in this case and hence possessed superior right of pre-emption to annoy and defeat the rival pre-emptor was not held to be sufficient for non-suiting him.
' In case of Jam Pallo v. Bashir Ahmad and another (PLD 1993 Lahore 168), while deciding the question of waiver and collusion, it has been held that securing of certified copies from the revenue authorities by the vendor and the said copies having been placed on record by the plaintiff-pre- emptor, who is real son of the vendor, it shall not be deemed to establish that the suit had been filed for the benefit of the vendor as the plea of waiver is to be proved by a very strong evidence and further to prove that the suit has been filed for the benefit of others. As the waiver cannot be readily inferred or applied it is to be established by express evidence. Regarding quantum of proof of waiver, similar view has been taken in case of Jam Pari v. Muhammad Abdullah (1992 SCMR 786) and Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403).
9. Keeping in view the principles laid down in the aforementioned judgments, I am of the considered view that items of evidence which have been relied upon by the learned First Appellate Court for coming to the conclusion that the suit is either collusive and was brought for the benefit of the vendees do not prove it to be so. It is established on record that the litigation has been prosecuted by the appellant himself. It is also evident from record that he has deposited the pre- emption money including 1/5th share whereof himself. There is absolutely no evidence that he has been financed by the vendees or by any body else at his behest. There is nothing on the record to show that real intention of the appellant-pre-emptor was to acquire the land for the benefit of the vendees. Merely, because certain copies appended with the plaint or produced during the course of evidence had been obtained by the vendees, the clerk of their counsel or his real son will not be a conclusive proof of the fact the suit is Benami. Above mentioning facts at the most will show that the vendee as well as the appellant were interested in nom-suiting the rival pre-emptors and as the appellant was also a defendant in the suits filed by rival pre-emptors, there is nothing wrong if he had joined hands with the vendees for the purpose of non-suiting the other rival pre-emptor. His suit will only be liable to be dismissed if it is established by positive evidence that he has filed suit for getting land for the benefit of vendees, there is no such evidence on record nor is there any probability on the basis whereof, it would be so said Therefore, findings rendered by the learned District Judge on the Issue No, 2, are set aside and it is held that suit filed by appellant is neither conclusive nor is proved to have been brought for the benefit of the vendees.
10. As regards, the arguments of the learned counsel for the respondents Nos. 1 to 3 to the effect that rival pre-emptor having withdrawn the preemption money after passing of the decrees in their favour their suits are liable to be dismissed suffice it to say that the above fact will not make any difference as the suit having once been decreed in their favour and the matter being under appeal merely, because 1/5th amount of pre-emption money was withdrawn by them, it will not be a valid ground for holding that decree in their favour has become ineffective or their suit has become liable to be dismissed No other point has been urged before me by either of the learned counsel for parties.
11. In view of the above, Regular Second Appeal No, 907/78, is accepted and Appeals Nos. 1043 of 1978, 1044 and 1045 of 1978 are dismissed, with the result that the judgment and decree rendered b`y learned First Appellate Court is set aside and judgment and decree rendered by the learned trial Court is restored. Parties are left to bear their own costs.