JUDGMENT CH. MUSHTAQ AHMAD KHAN, J.- This judgment will dispose of following four connected appeals:- i. Zahorr id Hassan Vs Faqir Sain etc. (RSA 907 of 1978) ii. Faqir Sain etc. Vs Muhammad Rafique etc (RSA 1043 of 1978) ii. Faqur Sain etc. Vs Zahoorul Hassan (RSA 1044/78) iv. Faqir Sain Vs 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 Snkhnian, 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 No.5 and 6 before this Court. Zaheer 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 No. 1 to 3 as well as the respondents No.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 No374/75, titled "Muhammad Akbar VS 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- emptions is any had better right of pre-emption against the vendee as well as interse?
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 No.5 to 7 is illegal, void?
4. Whether the pre-emptores have waived their rights of preemption?
5. Whether the price of a suit land at Rs33,000/- 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 Zaheer ul Hassan pre-emptor being collateral of the vendor possesses superior pre-emption right qua the other three real pre-emporte, hence first decree was passed in his favour and second decree was passed in favour of the three rival pre-emptores, in their equai shares. Aggrieved of this judgment and decree respondents No. 1 to 3 filed an appeal before District Courts, Sialkot, which was accepted vide judgment and decree dated 8.10.78, and the suit filed by Zaheer ul Hassan the appellant before this Court was dismissed as being collusive and for the benefit of the vendee suits filed by other pre-emptores were decreed to the extent of 1/3 share each in the suit land. Said judgment and decree has been challenged in these four appeals, one filed by Zaheer ul Hassan preemptor and the other three appeals have been filed by Messere Faqir Sain and other respondents No. 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 Zaheer 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 respondent No. 1 to 3 in RSA 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 No.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 in 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 pre-emptor himself, and he himself had been pursuing the suit, which establishes beyond doubt that the suit had been filed by the preemptor for his on benefit.
6. In support of this contention, learned counsel has placed reliance on the following cases:-
1. Mehr Kamir. Vs. Wati Muhammad & 5 others. (PLD 1973 Lahore t 137),
2. Ashiq AU Khan. Vs Shaffi AS Khan and others (AIR 1927 Lahore 872),
3. Sheru. Vs. Jawahir Singh (58 PR. 1912 page-219),
4. Amar Singh Vs. Koshen Singh and others (202 P.L.R. 1915) page-523),
5. Jam Polio. Vs. 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 counsellor the respondents No.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 in sufficient 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-emptores, learned counsel has contended that as Muhammad Rafique and Muhammad Akbar , respondents had withdrawn l/5th of the pre- emption 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-emptores-respondents No.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 dated by the learned counsel for the appellant. In case of Amar Singh Vs. Kishan Singh and others(2U2 PLR VolXVI, 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. Vs. 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(l)(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 bn a mortgage of the land sold, apparently with the object of defeating another suit by a rival preemptor, does not prove that he is acting benami for the vendees and, therefore, does not debar him from suing. In cases of Sanwat Vs. Jaigo Mai and others (A.I.R.1924 Lah 68), Mst. Bibi Aisha Vs. Shadi Khan (A.I.R.1935 pages 143)
Abdul Ghafoor and another Vs. Ms Sakina Begum (PLD 1975 Lah 524) Mst .Sakina Beguin VS Mst.
Surat Bibi (1981 CLC 398), it has been held that withdrawal of l/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 Vs. Shaffi Alt Khan & 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 Vs. Wali Mohammad and 5 others (PLD 1973 Lahore 137), where suits of two rival pre-emptores were consolidated and heard together it has ben held that before a pre- emption suit could be defeated on the ground of waiver and collusion strictest 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 Polio. Vs. Bashir Ahmad and another (PLD 1993 Lahore 168), while deriding 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 haring 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 bt 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. Vs. Muhammad Abdullah (1992 S.C.M.R.
786) and Naseer Ahmad. Vs. Arshad Ahmad (PLD 1984 S.C. 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 be has deposited the pre- emption money including l/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-emtor was to acquire the land lor 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 same 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 nonsuiting the rival pre-emptores, there is nothing wrong if he had joined hands with the vendees for the purpose of nonsuiting the other rival pre-emptor. His suit mil 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 No. 1 to 3 to the effect that rival pre-emptor having withdrawn the pre-emotion. Money after passing of the decrees in their favour their suits are liable to be dismissed suffice it to say that the above fad will not make any difference as the suit having once been decreed in their favour and the matter being under appeal merely, because 1/5 amount of pre-emption money was withdrawn by them, it will not be a vailed ground for holding that decree in their favour has become in effective 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, RSA No.907/78, is accepted and appeals No.1043 of 1978,1044 and 1045 of 1978 are dismissed, with the result that the judgment and decree rendered by 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 on costs.