MUHAMMAD NASEEM CHAUDHRI, J.- The dispute land comprising an area of 18 Kanals, 9 Marlas situated in Chak No. 35/EB, Tehsil Arifwala, District Pakpattan, was initially owned by Mst. Maimoona Habib and Mst. Razia Habib who made sale of the same to their maternal uncle Muhammad Charagh respondent-defendant through sale deed registered on 5.10.1982. Claiming to be a co- sharer in the Khata and expressing that the said status was not being enjoyed by Muhammad Charagh respondent, his real brother Muhammad Akbar petitioner- plaintiff instituted a suit to pre- empt the said sale. He contended that the sale price of Rs. 92,250.00 was got entered in the sale deed to scare away the pre-emptors and that actually Rs. 45,000.00 were fixed and paid thereof which was also the market value of the suit land.
2. This suit was resisted by Muhammad Charagh respondent-defendant who in his written statement contended that the same was incorrectly valued for the purposes of Court-fee and jurisdiction; that the plaintiff had no cause of action to institute the suit who was estopped by-his words and conduct from bringing the suit; that the suit was barred by time which was also hit by partial pre-emption and that he paid the amount of Rs. 92,250.00 to the vendors which was also the market price of the suit land. He denied the superior pre-emptive right of Muhammad Akbar petitioner-plaintiff.
3. According to the pleadings of the parties following issues were framed for determination:- ISSUES:
(1) Whether the suit is incorrectly valued of rather purposes of Court-fee and jurisdiction. If so, what is the correct valuation? OPD.
(2) Whether the plaintiff has no cause of action to file this suit? OPD.
(3) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.
(4) Whether the defendant is entitled to special costs under section 35-A of the Code of Civil Procedure? OPD.
(5) Whether the suit is time barred? OPD.
(6) Whether the suit is bad for partial pre-emption? OPD.
(7) Wether the plaintiff has a superior right of pre-emption? OPP.
(8) Whether the ostensible sale price of Rs. 92,250.00 was fixed in good faith and actually paid?
OPD.
(9) On non-proof of. Issue No. 8, what was the market value of the suit land at the time of its sale?
OPPs.
(10) Relief.
The parties produced their evidence. Except the superior pre-emptive right of the pre-emptor and the sale price they did not further contest the same. The admitted position is that Muhammad Akbar petitioner-plaintiff is the real brother of Muhammad Charagh vendee-defendant. According to Jamabandi Exh, p-2 Muhammad Akbar petitioner is also a co-sharer in the Khata in which the disputed property is situated. Muhammad Charagh respondent-defendant also submitted a certified copy of the registered sale deed making out that he purchased some land in Khata No. 104 of the village. After hearing the parties the learned trial Court expressed that under section 15(b) (fourthly) of the Punjab Pre-emption Act Muhammad Akbar enjoyed better status being a co-sharer in the Khata in which the disputed property is situated which status is not enjoyed by his brother Muhammad Charagh. The inter se relationship of the contesting parties to the suit was not given the weight. It was held that the market value of the suit property was Rs. 45,000.00. Thus the suit was decreed for an amount of Rs. 45,000.00. The respondent-defendant preferred an appeal which was accepted by an Additional District Judge on the ground that the right of pre-emption of Muhammad Akbar petitioner and his brother Muhammad Charagh respondent was equal under section 15(b) (thirdly) of the Punjab Pre-emption Act, 1913. According to the Additional District Judge in view of the said relationship the matter could not be considered under section. 15(b)
(fourthly) of the Punjab Pre-emption Act. Consequently the suit was dismissed. Hence this revision petition which has been resisted by the respondent-defendant.
4. I have heard the leamed counsel for the parties and gone through the record before me. At the very outset leamed counsel for the petitioner, expressed that the market value of the suit land was Rs. 92,250.00 which may be fixed accordingly. With respect to the superior pre-emptive right of Muhammad Akbar petitioner-plaintiff he relied on Nabha (plaintiff) v. Pathana vendee (1912 PLR 208) (C.M. Case No. 56 of 1912), wherein it has been held that where both preemptor and the vendee are agnates of the vendor equally related to him but the preemptor is also co-sharer in the holding a portion of which is sought to be pre-erupted, the pre-emptor is entitled to a preferential right but when both the preemptor and the vendee have equal right of pre-emptor the pre-emptor must fail. On the contrary learned counsel for the respondent-defendant relied on Ragh Ram md.
Another v. Dew Singh md others (Second Civil appeal No. 391 of 1922), decided on 4.3.1926 reported as 94 I.C. 1926 page 253 and canvassed that where the preemptor and the vendee both possess the same higher qualification the possession of an additional inferior qualification by the pre- emptor does not entitle him to a decree for pre-emption against the vendee. He also relied on AIR
(30) 1943 Peshawar 75 wherein it has been held that according to the Punjab Pre-emption Act, 1913 wherein a pre-emption suit both the plaintiff and the vendee are equally entitled under a "higher" right under section 15(b) then the possession of a lower right under section 15(c) in addition by the plaintiff does not entitle the plaintiff to a pre-emption decree.
5. It would be convenient to reproduce the relevant-portion of section 15 of-the Punjab Pre- emption Act; 1913:- "15. Person in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property:- Subject to the provisions of section 14, the' right of pre-emption in respect of agricultural land and village immovable property shall vest-
(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held is by all the co- sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vender or vendors to inherit the land or property sold;
(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly. firstly, in the lineal descendants of the vendor in order of succession; thirdly, in the persons, not included under firstly or secondly above, in order of secession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follows:- thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold, fourthly, .In the co-sharers".
6. The dictum enunciated in the ruling published as Nabha v. Pathana (1912 PLR 208) relied upon by the leamed counsel for the petitioner is not attracted to the instant matter in view of other two judgment of subsequent period/time. Further the ruling being ignored was not under the Punjab Pre-emption Act, 1913 which. Was rather passed according to the earlier Pre-emption Act. The aforesaid two rulings referred to by the leamed counsel for the respondent are under the Punjab Pre-emption Act, 1913. In view of the aforesaid case-law it is ruled as under to be followed in such a state of affairs and facts "Where the plaintiff ^pre-emptor) and the vendee art equally entitled to higher right then the possession of the lower right in addition by the plaintiff does not entitle him to a decree for possession by pre-emption as the contestants sail in the same boat with equal legal status (right) of the said category".
7. I, therefore, hold that the appellate Court has disposed of the controversy in its true perspective by expressing that both the brothers i.e. Muhammad Akbar pre-emptor/petitioner and Muhammad Charagh respondent- defendant have the equal right and Muhammad Akbar has no superior status so as to make him entitled to a decree for possession by pre-emption with regard to the suit property. As such the judgment and decree passed by the lower appellate Court is unexceptional which is sustained.
8. For what has been said above, I see. No merit in this revision and dismiss the same. The parties are closely related and to afford cordial relations between them I leave them to bear their own costs throughout.