' This appeal is directed against the judgment and decree of the District Judge, Pallandri, passed on March 5, 1997, whereby an appeal filed against the order of Sub-Judge, Pallandri, was dismissed.
2. The facts forming the background of this appeal, precisely, are that the plaintiff-appellant filed a suit on the basis of right of prior purchase, in the Court of Sub-Judge, Pallandri. The suit was resisted by the opposite party (defendant-respondents), on number of grounds, including the one that the sale-deed was cancelled, therefore, the plaintiff had no cause of action to pre-empt the sale. It was asserted that before the filing of pre-emption suit, the vendors filed a suit for cancellation of sale-deed, against the vendee-respondent who admitted their suit, as such, a compromise decree was passed in their favour, whereby the sale-deed was held to be cancelled.
The plaintiff-pre-emptor, therefore, filed another suit, challenging the aforesaid compromise decree as being illegal, fraudulent and of no legal effect. It was also asserted that the aforesaid suit was filed after the filing of the pre-eruption suit but the same was fraudulently shown to be decreed before the institution of that suit. The aforesaid decree was claimed to be not maintainable and did not affect the plaintiff-appellant's right of pre-emption in any case. Both the suits were consolidated. Issues were framed. The parties led their respective evidence and after hearing them, the suits were held to be dismissed by the Trial Court. An appeal filed with the District Judge, also met the same fate. Hence this appeal.
3. Mr. Sardar Khan, the learned counsel for the appellant, raised the following points, in support of the appeal:---
(i) That the plaintiff-appellant filed a pre-emption suit in respect of the suit land on 18-8-1994, in the Court of Sub-Judge, Pallandri, on the basis of right of prior purchase, to pre-empt the sale effected through sale-deed executed on July 20, 1994. The plaintiff claimed his right on the basis of his being a co-sharer in the suit land and also on the basis of suit land being contiguous to his land;
(ii) that after the institution of the plaintiff's suit, the vendors collusively with the vendee- respondent filed a suit for cancellation of aforesaid sale-deed, to illegally defeat the plaintiff- appellant's right of pre-emption. The aforesaid suit was fraudulently, with the connivance of Sub- Judge and his Clerk (Ahlmad Civil) shown to have been filed on 13-8-1994 by tampering with the record, though all the documents i,e, order passed by the Sub-Judge at the time of institution of the suit, the date of statement of the vendee and its entry in the Register along with the dates tampered with, clearly indicated that the aforesaid suit was filed on 18-8-1994;
(iii) that even otherwise, the aforesaid proceedings had no legal validity in the eye of law and did not effect the plaintiff-pre-emptor's right in any way. The exercise was in futility. It was elaborated that the transfer of property in the name of vendors by the vendee cannot defeat the preemptor's right.
(iv) that the plaintiff-appellant brought sufficient evidence, oral as well as documentary, to prove his right of pre-emption, against the vendee. Both the Courts below fell in error in dismissing the plaintiff's suit without applying their mind, to the facts and law involved therein. It was explained that the plaintiff's suit for pre-emption was dismissed on the ground that before the institution of the suit, the sale-deed was cancelled, as such, there was no sale to be preempted and also on the ground that the plaintiff-appellant's father was a co-sharer while the plaintiff-appellant was not entered as such. The fact of the matter was that plaintiff's father had died before the execution of the sale-deed and a mutation, on his death, was attested in the name of the plaintiff-appellant.
Therefore, he had the same rights as possessed by his father, by entering into his shoes;
(v) that the suit property was alienated for a consideration of Rs,2,80,000 which was also its market price but the same was shown to have been paid as Rs,3,20,000;
(vi) that the findings of the Courts below, suffered from misreading and non-reading of evidence.
Both the Courts have committed illegality in refusing the decree to the plaintiff-appellant. The learned counsel referred to PLD 1982 Lahore 426 and 1979 CLC 650, in support of his assertions.
4. On the other hand, M/s Sardar Muhammad Khalil Khan and Sardar Muhammad Suleman Khan, the learned counsel representing the respondents, while controverting the arguments addressed on behalf of the plaintiff-appellant, argued in the following manner:---
(i) That the plaintiff-appellant had no cause of action to file the preemption suit as the sale-deed had already been cancelled through a compromise decree passed by the Sub-Judge, Pallandri, before the institution of the pre-emption suit. Therefore, there was no sale existing to be pre- empted;
(ii) that the plaintiff-appellant had no superior right of pre-emption against the vendee as he failed to prove the same. It was explained that the plaintiff-appellant was not entered as a co- sharer in the Revenue Record and no proof was offered for his land being contiguous to the suit land;
(iii) that two suits were consolidated and disposed of by a common order, but the plaintiff- appellant filed single appeal though two decrees were passed, therefore, the same was not competent;
(iv) that both the Courts below recorded the concurrent findings. The findings of fact arrived at by them were not assailable in second appeal;
(v) that alternatively, the suit property was transferred in the name of vendors through a decree passed by the Trial Court within limitation. The plaintiff-appellant had no preferential right against them; and
(vi) that the suit property was transferred in the name of Muhammad Ashraf son of Din Muhammad Khan, through a gift-deed registered on January 22, 1996 who transferred the same through a sale-deed executed on September 28, 1996, in favour of Javed Akhtar son of Karam Dad Khan, now succeeded by his legal heirs. The plaintiff-appellant was not possessed with a superior right of pre-emption as compared to said Javed Akhtar. The learned counsel referred to PLD 1981 SC AJK 103 and PLD 1978 SC (AJ&K) 131, in support of their assertions.
5. I have heard the learned counsel for the parties and also gone through the record carefully. The plaintiff-appellant filed a suit for possession by pre-emption, for the suit property, transferred through a sale-deed executed on July 20, 1994, in the Court of Sub-Judge, Pallandri, on August 18, 1994. The prior right of purchase was claimed on two grounds, (i) that the plaintiff-pre-emptor was a co-sharer in the suit property; and (ii) that his land was contiguous to the suit property. The vendee-defendant did not admit the prior right of purchase of the plaintiff-pre-emptor and also asserted that the plaintiff-pre-emptor had no cause of action to file the pre-emption suit as the sale-deed before the institution of the pre-emption suit, was cancelled. According to him, a suit on behalf of the vendors for the cancellation of sale-deed was filed which was admitted by the vendee, as such, a decree was passed in favour of the vendors and the sale-deed was held to be cancelled.
6. Before entering into the controversy whether the plaintiff-pre-emptor, now appellant herein, had a superior right of preemption against the vendee and also against the subsequent vendee, it would be appropriate to attend the legal point on which the counsel for the appellant laid a stress.
It was claimed by him that after the institution of the pre-emption suit, the vendors collusively with the vendee and also with the connivance of Sub-fudge and his Clerk, fraudulently maneuvered to secure a decree for cancellation of sale-deed in favour of the vendors, on 13-8-1994. It was also claimed that all the documents clearly indicated that a fraud was practised, to show that the suit was filed on 13-8-1994 and the decree was also shown to have been passed on the said date. A perusal of the said file, Exh.' DP' showed that the suit on behalf of the vendors was filed on 18-8-1994 which appeared from the orders passed by the Presiding Officer of the Court, but the same was tempered with, on 13-8-1994. The date given on the bottom of the plaint also, appeared to have been tampered with. The date Exh. ' DF/1' appeared to have been tampered with by rubbing with Blade. The statements of the defendant-vendee and the witness were recorded on 18-8-1994 which were marked as Exhs.'DA' and 'DB'. The date on the ' Talbana' form also appeared to have been tampered with. The aforesaid suit was entered in the 'Register of suits", against Serial No,196, but the same was entered before the suits filed on 10-8-1994 and 11-8-1994, at serial Nos.197 and
198. It shows that the aforesaid suit was entered in vacant place as the same could not be entered before the suits filed earlier. The order and decree were passed on 13-8-1994. A perusal of all those documents mentioned above showed that the aforesaid suit was not filed on 13-8-1994, but the same was filed on 18-8-1994. An effort was made to defeat the pre-emptor's superior right of pre- emption. It is obvious that the said suit was filed after the institution of the pre-emption suit, by the plaintiff-appellant, a device to deny the legal right of the preemptor. Therefore, it is held that the aforesaid suit was 'instituted sometime after the institution of the pre-emption suit filed by the plaintiff-appellant, but the same was fraudulently, with the connivance of Sub-Judge and his Clerk (Ahlmad Civil), was sown to have been instituted on 13-8-1994. The Sub-Judge illegally passed an order and decree on the said date. Therefore, it is also held that the sale-deed on the date the preemption suit was filed, was intact.
7. The learned counsel representing the respondents alternatively, argued that if for the sake of argument, the afore a said suit was presumed to have been filed on 18-8-1994 instead of 13-8- 1994, the suit property stood transferred back to the vendors. Therefore, according to them, the plaintiff-appellant had to establish his prior right of purchase against them as the rights of a subsequent vendee were superior against him. The learned counsel relied upon the case-law referred to above. It may be mentioned that the citations referred to by the learned counsel (PLD 1978 SC (AJ&K) 131 and PLD 1981 SC (AJ&K) 103) relied upon, are of no help to them as it was held in PLD 1978 SC (AJ&K) 131 that in a case where the original vendee alienates the property in favour of a person having superior or equal rights to purchase the property as compared with the pre-emptor, the pre-emptor must make a case against the subsequent vendee and show his being clothed with superior right than the subsequent vendee provided the re-sale has been made within a period of limitation. The aforesaid authority does not lay down about the transfer of property in favour of vendor by the vendee. Similarly, the other authority, PLD 1981 SC (AJ&K) 103, does not support the case of the respondent, rather it advances the case of the appellant.
8. It is worth-mentioning that collusion between the vendors and the vendee to give back the suit property to the vendors, aiming to defeat the pre-emption suit, does not adversely affect the suit for pre-emption. Reliance in this regard may be placed on Falk Sher's case (PLD 1982 Lahore 426), wherein the following observation was made:--- "--In some of the precedent cases it has been ruled that where after the filing of a pre-emption suit the vendee re-sells the land, involved in the suit, in favour of the vendor, it does not defeat the right of preemption claimed in the suit. Some of these cases have been reported as Muzaffar Khan v.
Muhammad Khan etc. 38 PLR 224, Imami v. Allah Diys and others 40 IC 767, Sukha and others v.
Arura Mal and another PLR 1908 Lah. 165, Pal Singh and another v. Jammu 49 IC 159 and Muhammad Khan v. Zir Mir Khan and 2 others 1981 CLC 129.
' Collusion between the vendor and vendee in the instant case, which had resulted in the declaratory decree in question, was also aimed at giving back the disputed land to the vendor with a view to defeating the preemption suit brought by the respondent. That decree is, therefore, on no better footing than the re-sale of land by vendee in favour of the vendor. The disputed decree would, therefore, not adversely affect the suit for preemption.
' Resultantly, I find no merit in the plea raised by learned counsel for the appellant that the Court seized of the pre-emption suit had no jurisdiction to hold that the declaratory decree which was collusively obtained by the appellant from another Court, was ineffective qua the suit for pre- emption.--"
' The proposition also came under consideration before the Lahore High Court in Rehmat Ali's case .
(1979 CLC 650), wherein it was held as under:-- "--It is well-settled that in preemption cases if re-sale is made by the vendee in favour of a person having superior right of preemption as against the pre-emptor, the suit of such a pre-emptor can be defeated; for in such a case a person possessing superior right of preemption, instead of bringing a suit for pre-emption, buys the property privately and, thus, the pre-emptor stands non- suited. However, the suit cannot be frustrated if the re-sale is made by the vendee in favour of a person not having right of pre- emption superior to that of the preemptor. In the instant appeal, it is not a case of frustration of the first bargain. The re-sale was an independent transaction which, as observed above, took place in respect of part of the land during the pendency of the suit whereas part of the land was alienated after the institution thereof. It is also a settled proposition that a vendor cannot claim a superior right of pre-emption vis-a-vis the sale transaction sought to be pre-empted. On this analysis, appellant No,1 did not have superior right of pre-emption as against the respondent in respect of the original sale. In Pal Singh and others v. Jamun and others, it has been laid down that a right accrues to a preemptor, having superior right of preemption on the date of sale and such right cannot be defeated by re-sale. This view also finds support from Imami v. Allah Diya, the learned Trial Court rightly relied upon this case-law. I have gone through the ruling reported as PLD 1952 Peshawar 1. It does not in any manner advance the appellant's case.---"
9. Relying upon the aforesaid authorities and the authority, PLD 1981 SC (AJ&K) 103, referred to by the learned counsel for the respondents, it can safely be held that even in case the suit property was transferred to the vendors by vendee, the superior right of plaintiff-appellant cannot be defeated as the vendors cannot claim any right against him, as discussed above. It will also be useful to mention here that the re-sale in favour of a subsequent vendee, after the limitation does not defeat the pre-emptor's right as the doctrine of lis pendens applies. Therefore, transfer of the land in favour of Muhammad Ashraf, one of the vendors, through the gift-deed and later on in favour of Javed Akhtar, now succeeded by his legal heirs, through a sale-deed, was hit by the doctrine of lis pendens in the present case and, therefore, the aforesaid transfer did not defeat in any way the rights of the plaintiff-appellant, against the original vendee.
10. Next, the question arises as to whether the plaintiff-appellant proved a case of preferential right, to pre-empt the suit property, against the vendee. It was claimed that the plaintiff-appellant was a co-sharer in the suit property and his land was also contiguous to the land under pre-emption. The plaintiff claimed that his father died two years before the institution of the suit who was a co- sharer and a mutation in his name, on his death, was also attested. The plaintiff-appellant produced a certified copy of ' Misale-Haqqiat' for the year 1981-82 comprising Khewat No,47, Exh.'
P.B. ' , showing his father Dewan Khan, as a co-sharer and a copy of mutation-register Exh.' PC'.
Whereby a mutation was sanctioned in his favour along with other heirs, for the aforesaid land. The sale sought to be pre-empted comprised land, Khewat Nos.47 and 124 with a house. The land measuring 10 Kanals and 3 Marlas comprising Khewat No,47, Khata No,175/103, Survey No,309/2 (old), 25 (present) was transferred while land measuring 14 Kanals comprising Khewat No,124, was alienated. The plaintiff-appellant, according to the documentary evidence produced by him, Exhs.'
PAK ' and ' PC', is a co-sharer in Khewat No,47 and not in Khewat No,124. Therefore, his prior right is established in respect of the land measuring 10 Kanals and 3 Marlas and not for the rest of land measuring 14 Kanals, against the vendee who has failed to place on record any documentary evidence, contradicting the aforesaid evidence or otherwise placing any evidence establishing his right against the preemptor.
11. Both the Courts below, Sub-Judge as well as the District Judge, held that the plaintiff-appellant was not entered in the Revenue Record as a co-sharer, as such, was not possessed with any superior right of pre emption, against the vendee, therefore, held him disentitled to a decree. A perusal of the orders passed by them shows that they have not applied their mind and failed to appreciate that the plaintiff-appellant mentioned in his suit that his father had died who was a co- sharer, as such, he was also a co-sharer for having entered into the shoes of his father. It may also be mentioned that on the death of an owner, his heirs become the owner of the property or estate left by him, even without effecting any entry or attestation of any mutation in their favour. The attestation of the mutation or effecting of an entry, is made to maintain the record, otherwise, his right to have become owner of the property cannot be denied to him for failing to effect entry through mutation or otherwise, as such, it is concluded that the plaintiff-appellant was a co-sharer in the suit property to the extent of Khewat No,47, from which land measuring 10 Kanals and 3 Marlas was alienated.
12. The learned counsel representing the plaintiff-appellant did not press the point about the consideration amount. Therefore, the same shall be deemed to be accepted as mentioned in the sale-deed.
13. Another point raised by the learned counsel for the respondents to be attended, before parting with the judgment, was that the plaintiff-appellant filed one appeal though two suits were consolidated. It may be mentioned that as discussed above, there was no legal necessity of challenging the suit or the collusive decree claimed to have been passed in favour of the vendors.
Therefore, it would have made no difference for the same to have been challenged or not as discussed in the earlier part of the judgment.
14. The other ground urged on behalf of the plaintiff-appellant was not substantiated through any record. All other evidence produced by either of the parties, oral as well as documentary, was of no relevance, therefore, was not discussed.
15. The up-shot of the above discussion is that the plaintiff-appellant has successfully proved his prior right of purchase, to the extent of land measuring 10 Kanals and 3 Marlas, out of the land measuring 24 Kanals and 3 Marlas, along with the share in the house, against a consideration in proportion of amount of Rs,3,20,000 with sale-deed's expenses. -A decree for the land measuring 10 Kanals and 3 Marlas comprising Survey No,309/2 (old), 25 (present), Khewat No,47, Khata No,175/103, situate in village Tahlian, Tehsil Pallandri, with a share in the house of proportion, against a consideration in proportion of amount of 3,20,000 is passed in favour of the plaintiff-appellant, against the respondents. The appellant shall deposit the aforesaid amount in the Trial Court within a period of two months from the date of this order, failing which his suit shall stand dismissed.
16. A case under the 'relevant provisions of law shall also be registered keeping in view the observation made in para.6 of the judgment, after the expiry of period of limitation provided against the judgment and decree, subject, however, to the orders by the Appellate Court.