RAJA MUHAMMAD SABIR, J.- This judgment will dispose of RSA No. 3, RSA No. 4, RSA No. 7 and RSA No. 8 of 1988 as all of them arise out of common judgment in to suits of rival pre-emptors against the vendee. RSA No. 3/88 has been filed by Dilawar Khan, pre-emptor on the basis of kinship with the vendors, primarily against Babar Shehzad, rival pre-emptor son of Sher Muhammad, vendor. RSA No. 4/88 has also been filed by Dilawar Khan against the rival pre-emptor and vendee. RSAs Nos.
7/88 and 8/88 have been preferred by Said Akbar vendee against the pre-emptors-decree holders.
2. Brief facts of the case are that 29 kanals and 15-marlas of land was sold by Sher Muhammad and his sisters, Mst. Safaidan Jan, Mst. Sarwar Jan to Said Akbar, appellant in RSAs No. 7/88 and 8/88 for Rs 3 lac. The description of the property is fully given in the headnote of the plaint. Two suits to pre-empt the property, one (suit No 5/1975) by Babar Shehzad and the others (suit No. 6/1975) by Dilawar Khan were instituted against the vendee. The suit of Babar Shehzad was dismissed being collusive by the learned Senior Civil Judge vide his judgment dated 7.4.1976 while the suit of Dilawar Khan was decreed oil the ground of kinship with the vendors. On appeal the learned Additional District Judge, Attock vide the impugned judgment decreed the suit of Babar Shehzad and it was ordered that in case he failed to deposit the decretal amount within the given period, then the suit of rival pre-emptor, Dilawar Khan, shall be deemed to have been decreed on payment of sale consideration.
3. Two appeals have been preferred by the vendee and to by Dilawar Khan, as referred above, against the judgment and decree of the learned Additional District Judge, Attock.
4. Learned counsel for the appellant in RSA Nos. 3 and 4 of 1988, contends that admittedly Babar Shehzad is son of Slier Muhammad vendor and was a minor at the time of institution of the suit. The suit was instituted by his maternal uncle as was a collusive suit and the learned trial Court correctly dismissed his claim being mala fide and collusive. The learned first appellate Court has erroneously decreed his suit, depriving the appellant of his right of pre-emption. Regarding appeals of the vendee, he has supported the impugned judgment and decree. He also submits that no decree could be passed after 31.7.1986 in favour of Babar Shehzad respondent.
5. Learned counsel for the appellant in RSA Nos. 7 and 8 of 1988 submits that the decree passed in favour of both the pre-emptors is illegal. Babar Shehzad is admittedly the son of the vendor, Sher Muhammad and was a minor at the time of the institution of the suit. He had no personal source of income to pre-empt the transaction. In fact the suit was instituted at the instance of the vendor, Sher Muhammad, his father, and the remaining vendors are his aunts.
6. As regards Dilawar Khan, it has been submitted that he failed to deposit zar-e-punjam in accordance with the directions of the Court. The suit haying been instituted on the last dates of limitation, the extension in time was not granted to him for payment of remaining zar-e-punjam by the competent Court. The extension granted to him by Civil Judge IIIrd Class was invalid. He further submits that without any notice to the appellant, extension for deposit of zar-e-punjam could not be granted to the pre-emptor. Learned counsel has referred to many judgments on the point in respect of his above plea.
7. Learned counsel for Babar Shehzad had defended the judgment and decree of the lower appellate Court with the submissions that zar-e-punjam was deposited with in time granted to him, therefore, no valid objection is available to the appellant. So far as the objection of Dilawar Khan regarding collusive nature of the suit is concerned, he submits that no evidence was led by the parties to establish that the suit was collusive and for the benefit of the vendors.
8. I have heard the learned counsel for the parties and perused the record with their assistance. It in an admitted fact that Babar Shehzad is the son of Sher Muhammad vendor and other vendors are his aunts. It is also conceded by his learned counsel that he was minor of tender age at the time of institution of suit (No. 5 of 1975) by him. The learned Senior Civil Judge while discussing issue No. 6 observed that Babar Shehzad is minor and he has filed the suit through Javed Iqbal, his next friend. Javed Iqbal is maternal uncle of the minor. Dilawar Khan, rival pre-emptor alleged that the suit filed by the minor is collusive and for the benefit of the vendee. Javed Iqbal was called to appear as a Court witness wherefrom it is evident that Babar Shehazad is the son of Sher Muhammad and is living with his father. The other vendors are sisters of Sher Muhammad for whom he acted as a general attorney while transferring the land to the vendee. Admittedly the age of the minor was 7 years at that time. He or his parents have no other property in the revenue estate and have shifted to Rawalpindi and have left no interest in the village. Javed Iqbal aforesaid is not the resident of that estate and he is permanently settled in Rawalpindi. The minor, his parents and his attorney have no immovable property in the revenue estate concerned. Babar Shehzad has neither any source of income nor he owns any property. The value of the suit property is worth Rs. 3 lacs and in case a decree is passed in his favour, he does not have the source to deposit the decretal amount which indicates that it was a collusive suit, filed for the benefit of the vendors. The next friend of the minor stated that he will advance loan to the minor so as to succeed in the case and would recover the same from him subsequently. All these facts and circumstances indicate that the suit was not instituted for the benefit of the minor. The findings of the learned Senior Civil Judge on issue No. 6 appear to be justified in peculiar circumstances of the present case.
9. Javed Iqbal while appearing in Court as a witness admitted that father of the minor accompanied him to the Court and also travelled with him. This shows that the suit was being pursued by Sher Muhammad father of the minor who also brought Javed Iqbal for appearance as a Court witness. The evidence relied upon by the learned trial Court as quite justified and its findings on issue No. 6 have erroneously been reversed by the learned Addl. District Judge. The reasons advanced by the learned lower appellate Court are not based on proper appreciation of the evidence. It is an admitted position that the minor was living with Sher Muhammad as stated above. He was 7 years of age and had no source of income. All these facts and evidence have been discussed by the learned Senior Civil Judge keeping is no controversy with regard to residing of the minor with his father, Sher Muhammad. The over-all assessment of the evidence leads to the conclusion that the suit was filed on instigation of Sher Muhammad by Babar Shehzad for the benefit of the vendors. The learned lower appellate Court while passing the decree on 22.9.1987 for the first time in favour of Babar Shehzad has also ignored the law laid down in Said Kamal's case (PLD 1986 S.C. 360 and 1988 SC 287) that no such decree could be passed after 31st July, 1986.
Consequently, the findings of the first appellate Court are hereby set aside and that of the learned trial Court are restored.
10. Now coming to the second decree passed in favour of Dilawar Khan by the learned Addl. District Judge it may be pointed out that the suit was instituted on 3.1.1975 when the pre-emptor was directed to deposit Zar-e-punjam before 12.3.1975 by the learned.Senior Civil Judge. Notice was also issued to the other side. On 8.3.1975 i.e. Four days before the expiry of the "given period, when the Senior Civil Judge was on leave, Dilawar Khan submitted an application for extension in time before Mr. Ashiq Muhammad Faiz, Civil Judge IIIrd Class on the ground that the funds had to come from England. The learned- Civil Judge IIIrd Class granted him extension in time to deposit the zar- e-punjam till 27.3.1975 without any notice to the vendee-defendant. Two objections were raised in this respect before the learned trial Court. Firstly, the competent Court to grant extension of time was the learned Senior Civil Judge who had originally heard the suit or the Civil Judge 1st Class whereas the extension was granted by a Civil Judge III Class who was not competent to pass such an order and secondly that the order was passed without notice to the vendee-defendant whose right in the property has been adversely effected. It is true that the zar-e-punjam had been deposited during the extended period i.e. 27.3.1975 but admittedly the Court granting the extension was not empowered with 1st Class powers, therefore, the order passed by him is wholly without jurisdiction. The learned Civil Judge has not given any reason while extending the time in his order nor he gave any notice to the opposite party. The contention that the learned District Judge had deputed him to work as duty judge is untenable in the eye of law inasmuch as to exercise of jurisdiction as Civil Judge 1st Class issuance of Notification of conferring such powers is essential and admittedly he had not been Conferred 1st class powers, therefore, the order passed by in relation to a case triable by a Civil Judge 1st Class was coram non judice. Moreover, no compelling reason has been judice. Moreover, no compelling reason has been furnished by the pre-emptor for making the application on 8.3.75 when the learned Senior Civil Judge, seized of the case, was all along available from 3.1.1975 to 12.3.1975 except on 8.3.1975. The pre-emptor could make the application on any other day except 8.3.1975 before the Court concerned. The reasons for having approached another Judge for extension in time are not understandable. The compliance of the valid order dated 3.1.1975 was not made prior to 12.3.1975 within the stipulated time and the suit has become incompetent for want of compliance of order dated 3.1.1975. There was no valid extension after 12.3.1975 as contemplated by original order dated 3.1.1975. No. Reason whatsoever has been given in the order dated 8.3.1975 for extension of time and the learned Senior Civil Judge while finally deciding the case could not regularize the aforesaid order. The mere fact that the order dated 8.3.1975 was not challenged in appeal or revision, furnishes no ground to validate it at subsequent stage. Or to give it a legal cover. The findings of both the Courts below on issue No. 5 are unwarranted and in violation of the law laid down in Muhammad Azam Khan and another v.
Ditta and others (PLD 1967 Lahore 1068) and Niaz Ali v. Ibrahim (PLD 1976 Lahore 1057), therefore, these findings are hereby reversed as a result of which the suits of the pre-emptors are dismissed.
11. The upshot of the above discussion is that the pre-emptors have failed to make out their case, therefore, RSA No. 3 and RSA No. 4 of 1988 are dismissed whereas RSA No. 7 and RSA No. 8 of 1988 are allowed with no order as to costs.