' Civil Revision Nos. 387/91 and 396/91 have arisen out of one judgment and decree in Civil Appeal No, 141/13 of 1989, therefore, both the petitions are disposed of through this single judgment.
2. The facts giving rise to these proceedings are that the property fully detailed in the heading of the plaint was purchased by Zulqadar, Muqadar, Muhammad Sher sons of Muhammad Afzal Khan, Said Khan, Dairan Shah, Abdul Hanan and Said Nawab sons of Juma Khan residents of Dagai, Tehsil Swabi through Sale Mutation No,4874 attested on 31-1-1974. Wail Muhammad son of Haji Jaseem Khan instituted a Suit No,168/1 on 8-7-1974 in order to pre-empt the said transaction. One Ramdad Khan also filed a pre-emption suit in respect of only 40 Kanals and 6 Marlas of land comprising in Khasra No,602. Vide judgments and decrees dated 22-11-1975 Suit No,168/1 was decreed to the extent of 71 Kanals and 17 Marlas out of the Suit Khasras and the suit was dismissed in respect of Khasra No,602 measuring 40 !Canals and 6 Marlas, The suit of Ramdad Khan also did not succeed in respect of Khasra No,602 which was accordingly dismisied. Both the rival pre-emptors preferred appeals against the judgments and decrees of the trial Court before the District Judge who accepted the appeals and remanded the suits with directions to proceed with it in accordance with law. Thereafter the present suit was stayed under section 29 of the N.-W.F.P. Pre-emption Act, 1950 on 26-4-1976 but was again restored on 13-1-1987.
3. During the pendency of the said suits three other transactions were effected. Through Mutation No,4949/1 dated 29-7-1974 defendants No,4 to 7 transferred 20 Kanals and 3 Marlas of land in favour of defendants Nos.1 to 3, vide Mutation No,4976 attested on 25-9-1974 12 Kanals and 7-1/2 Marlas of land was transferred by defendants Nos.4 to 7 in favour of defendant No,1. Thereafter defendants Nos.4 to 7 transferred 23 Kanals and 7-1/2 Marlas of land to one Haji Jaseem Khan vide Mutation No,4999 attested on 11-1-1975. Haji Jaseem Khan was made a party to the proceedings and after his death legal representatives are in the field.
4. The suit was contested by the defendants by filing the written statement. The pleadings of the parties gave birth to the following issues:--
(1) Whether the suits liable to rejection under Order VII?
(2) Whether the plaintiff has a cause of action?
(3) Whether the plaintiff is estopped to bring the present suit?
(4) Whether the suit is partial, if so, its effect?
(5) Whether the suit is competent in the present form?
(6) Whether the defendants are entitled to the tax paid by them in respect of the transaction?
(7) Whether the present suit is liable to be stayed under section 29 of the Pre-emption Act?
(8) Whether the plaintiff has got a superior right of pre-emption?
(9) Whether a sum of Rs3,00,000 has been fixed in the good faith and paid as consideration?
(10) What is the market value?
(11) Relief.
Additional Issue:
(1) Whether defendant Haji Jaseem Khan is entitled to receive Rs,30,000 price of 23 Kanals 11 Marlas, in case of decree in favour of the plaintiff?
5. The parties adduced evidence as they wished and thereafter, after hearing the arguments advanced by the learned counsel for the parties, the trial Court granted a decree on 17-6-1989 for possession through pre-emption pertaining to the suit land in favour of the plaintiff against the defendants for a sum of Rs,1,41,087.
6. Being aggrieved from the judgment and decree of the trial Court, the vendee-defendant lodged appeal No,141/13 in the Court of District Judge, Mardan on 27-6-1989. The learned Appellate Court partially accepted the appeal and maintained the judgment and decree of the trial Court to the extent of 71 Kanals and 19 Marlas while dismissed the suit of the plaintiff to the extent of 40 Kanals and 6 Marlas of land falling in IChasra No,602. Hence the present revision.
7. I have heard the learned counsel for the parties and have perused the record with their assistance.
8. In Civil Revision No,396/91 the learned counsel appearing for the petitioner argued that both the Courts below have erroneously held that defendants (original purchaser) have lost their right to defend on the ground of sinker. He further submitted that the factum of sinker was neither raised in the pleadings nor an issue in this regard was framed.
9. It is on record that defendants Nos.1 to 3 were recorded as co-sharers in the suit property at the time of sale and it is also a fact that defendants Nos.4 to 7 were not clothed with such a qualification at that juncture. This suit was instituted under the provisions of N.-W.F.P. Pre-emption Act, 1950. Section 19 of the said Act is reproduced as under:-- "Section 19. Joint purchase bv_persons one of whom is liable to prepmption,--Where the purchaser having equal or superior right to the pre-emptor joins with him a person having no right or having right inferior to the pre-emptor the purchaser loses his preferential right."
10. In the light of the above-referred provisions since defendants Nos.1 to 3 have associated defendants Nos.4 to 7 with them in the joint purchase of the suit property, therefore, they have also lost their preferential right and have sunk alongwith defendants Nos.4 to 7 in the voyage of the present pursuit. This defect after the institution of the suit is not curable particularly when the instant sale transaction was indivisible.
11. The next point as to whether the question of sinker can be dealt with in absence of an issue and narration in the pleadings. In this respect section 6 of the Act is taken into account which reads as under:-- "Section 6. Right of pre-emption. To be subject to the provisions of this Act.-A right of pre-emption shall exist in respect of agricultural land, village immovable property, and urban immovable property subject to the provisions and limitations contained in this Act."
12. In the light of the provisions contained in section 6 ibid it becomes obligatory on the part of the Court to take into consideration the provisions contained in this provision of law: "It has been laid in 1992 SCM R 417: (g)' Civil Procedure Code (V of 1908), O.VI Pleadings of parties would not control or govern the application of correct law to established or, proved facts."
13. It may be stated at the cost of repetition that it is established on record that defendants Nos.1 to 3 having superior right of pre-emption associated with them defendants Nos.4 to 7 who had no such right and thus fell into the clutches of section 19 of the Act. This question can be considered legally in absence of averment in the pleadings or an issue. This aspect of the case has been correctly considered by the forums below. Thus, I find myself in agreement with the findings of the Courts below on the point of sinker.
14. In Civil Revision No,387/91 the learned counsel appearing for Wali Muhammad, petitioner has submitted that the appellate Court has acted in exercise of its jurisdiction illegally and with material irregularity while dismissing the suit of the petitioner to the extent of 40 Kanals and 6 Marlas. Whereas the learned counsel appearing for the respondents has supported the findings of the appellate Court in this respect.
15. It prevailed with the appellate Court that since originally the suit of the plaintiff was dismissed on 22-11-1975 by the trial Court to the extent of land measuring 40 Kanals and 6 Marlas falling in Khasra No,602, therefore, after the dictum of the Supreme Court laid in PLD 1988 SC 287, no decree in favour of the plaintiff-pre-emptor can be granted if the same was not granted prior to 31-7-1986.
16. This question has been answered by the Supreme Court in the case titled Muhammad Ismail v.
Ghulam Haider and 3 others reported in 1991 SCM R 1443 in the following terms:-- "So far as the constraints of decision of Sardar Ali's case are concerned, two features have to be noted. Firstly, the rights held protected under that decision were those in which the right to preempt the sale was recognised. It was not dependent on the nature and extent of the relief granted. If the rights stood recognised, then in the matter of relief increase and decrease in the area or share could take place without violating the law laid down by this Court in Sardar Ali's case.
' Secondly, what was recognised in Sardar Ali's case was a right to pursue his remedies after a decree has been obtained in recognition of his right. There may take place remands and reversals of the decree but the pursuit of the pre-emptor, once a decree has been passed before the relevant date, can continue undeterred and uninterrupted, On this view of the matter, the decision in Sardar Ali's case was no bar to the grant of relief which the High Court thought the pre-emptors eminently deserved."
17. It is not denied by the learned Appellate Court that the right of preemption of the plaintiff does not extend in respect of the property for which he has refused the relief but rather has recognised the plaintiffs right even to that extent.
18. Analysing the facts of the present case in the light of the above rule of the Supreme Court, I have come to the conclusion that the Appellate Court has erred in law while dismissing the suit of the plaintiff to the extent of 40 Kanals and 6 Marlas.
19. The defendants have acquired 112 Kanals and 3 Marlas landed property alongwith shares of `Shamilat' through Mutation No,4874 attested on 31-1-1974. The learned trial Court fixed Rs,1,41,087 as the market value of the suit property on the basis of 5 years' average while giving findings on issue No,10. I have gone through the 5 years' average prepared by the Patwari Halqa. In the said average no sale mutation for the year, 1974 has been included. He has taken into account the sale mutations attested during the years, 1969 to 1973. Very few mutations for the year 1973 have been included in the said schedule. It is a fact that the prices have jumped very high during the last two decades due to inflationary trend in the real estate market. In such circumstances, the 5 years' average is not a correct yard-stick for assessing the market value of the property. The higher Courts have opined time and again that in such situations one year average be taken into consideration as one of the modes for assessing the market value. Unfortunately, in this case no one year average has been placed on record. The Court can also take into consideration the sale transaction effected even after the impugned mutation. In this situation of the matter, the 5 years' average prepared by the Patwari Halqa cannot be made basis for fixation of the market value of the suit land. A sum of Rs,3,00,000 as entered in the sale Mutation No,4874 in respect of 112 Kanals 3 Marlas alongwith share of Shamilat will not be a much higher price for such a land. In the light of the present circumstances of the case, I fix Rs,3,00,000 (three lacs) as market value of the suit property. The judgment and decree of the Appellate Court to the extent of the dismissal of the suit is set aside and that of trial Court is modified. Accordingly the suit of the plaintiff is decreed in respect of the entire land 112 Kanals 3 Marlas subject to payment of Rs,3,00,000 (three lacs). The plaintiff is directed to make up the deficiency within two months from today failing which his suit shall stand dismissed.
20. Resultantly Civil Revisions No,387 of 1991 is accepted while 396 of 1991 is dismissed. The parties are left to bear their own costs.