MIAN NAZIR AKHTAR, J.- This petition arises out of a Suit for possession through pre-emption filed by Fateh Sher petitioner on 28,7.1981 in Civil Court at Jauhar Abad, seeking the superior pre-emptive right on the ground of being nephew of the vendor, Ata Muhammad and joint owner in the disputed Khata. The vendees further sold the land in favour of Mst. Niaz Bibi, respondent No. 1 through a consent decree dated 3.9.1981, therefore, she was arrayed as defendant No. 5 in the Trial Court.
2. The suit was resisted by respondent No.1 the subsequent vendee who filed her written statement in the Court on 17.3.1982. On the leading of the parties, the Trial Court framed for following issues:- ISSUES
1. Whether the suit has been wrongly valued for court fee and jurisdiction?
2. Whether the plaintiff has no locus standi and cause of action to file this suit?
3. Whether the plaintiff has superior right of pre-emption?
4. Whether Niaz Bibi obtained the suit property on 3.9.1981 by a valid decree and the present suit is not maintainable?
5. Whether the defendants are entitled for special costs?
6. Whether sum of Rs. 100,000/- was fixed in good faith or actually paid at the time of sale?
7. If issue No. 6 is not proved, what was the market value of the suit land?
7-A. Whether decree in favour of defendant No. 5 is illegal, collusive and ineffective on the rights of the plaintiff, if so, its effect? OPP.
7-B. Whether decree dated 3.9.1981 does not create any title in favour of Niaz Bibi? OPP.
8. Relief.
After recording evidence of the parties, the Trial Court decreed the suit vide judgment and decree dated 27.7.1983. The respondents preferred an appeal which was allowed by the learned District Judge, Khushab vide judgment and decree dated 23.4.1984.
3. The petitioner's learned counsel contends as under:-
(i) That the findings of the Trial Court on issue No. 7-A were affirmed by the appellate court.
(ii) That the Trial Court had given cogent reasons for its findings on issues No. 7-A and 7-B in favour of the Petitioner/plaintiff and the Appellate Court illegally altered the said findings without meeting the reasoning advanced by the Trial Court.
(iii) That the Appellate Court has wrongly proceeded on the assumption that even if the decree dated 3-9-1981 was collusive, it was permissible under the law as a device.
(iv) That the concept of device or disguise was relatable to the first or original sale transaction forming subject-matter of the pre-emption suit and could not be extended to the subsequent transaction.
(v) That the subsequent transaction or alienation must be proved to be real and genuine and if it is shown to be sham, fictitious or collusive one then it cannot adversely affect the pre-emptive rights of the plaintiff. in support of his contentions, the learned counsel relies on the following judgments:-
1. "Abdul Aziz and others Vi. Abdullah and others" (AIR 1925 Lahore 413)
2. "Muhammad Akram khan Vs. Mst. Kaniz Fatima Bibi and others" (PLD 1952 Lahore 489).
3. "Musali Khan Vs. Nazir Ahmad and others ".(PLD 1952 Peshawar)
4. "Ch. Ghulam Ahmad Khan Vs. Diwan Sheikh Ghulam Qutab-ud- Din and another" (PLD 1960 (W.P.)
Lahore 461.
5. "Ali Muhammad Vs. Malik Sanwat and others" (PLD 1961 (W.P.) Peshawar 62).
4. On the other had, the respondents' learned counsel contends as under:-
(i) That the pre-emptor plaintiff has to establish his superior rights at three stages; first, at the time of sale, second, at the time of institution of the suit and third, at the time of passing of the decree.
(ii) That in the present case, the plaintiff was not able to show his superior right at the time of institution of the suit because land had been sold by respondents No.2 to 5 in favour of Mst. Niaz Bibi, respondent No. 1, daughter of Ata Muhammad, vendor.
(iii) That the Appellate Court had duly considered the material on the record and held that sale in favour of Mst. Niaz Bibi was not collusive and for that reason recorded findings on issues No. 7-A & 7-B in her favour.
(iv) That the sale made in favour of respondent No. 1 is genuine and bona fide one.
5. There is considerable force in the arguments raised by the petitioner's learned counsel. To begin with the decree dated 3.9.1981 Ex.D/2 was obtained by Mst. Niaz Bibi, respondent No. 1 without impleading the petitioner as a party. Therefore, it was neither binding on the petitioner nor could it adversely affect his pre-emptive rights which were sub-judice before the Civil Court at the relevant time. The contrary view expressed by the Appellate Court is untenable under the law.
6. The petitioner had instituted pre-emption suit on 28-7-1981. In order the forestall the pre-emption decree an attempt was made by respondents No. 2 to 5 to show that he had sold the disputed land to Mst. Niaz Bibi daughter of Ata Muhammad, vendor on payment of Rs. 1,20,000/-. The Trial Court, after discussing the material on the record had recorded findings on issues No. 7-A and 7-B in favour of the Petitioner/plaintiff and held that the subsequent sale was a sham transaction and decreed the suit in his favour. However, the Appellate Court came to a different conclusion and reversed the findings of the Trial Court on the said issues. The question arises whether the alleged sale in favour of Mst. Niaz Bibi is a sham transaction or a genuine one. Ata Muhammad, vendor had originally sold the disputed land in favour of respondents No. 2 to 5 on 8.10.1980 for a consideration of Rs.1,00,000/-. The pre-emption suit was instituted by Fateh Sher, petitioner on 28.7.1981.
Thereafter, the same land was shown to have been sold in favour of Mst. Niaz Bibi through consent decree of the Civil Court passed on 3.9.19,81 for a consideration of Rs. 1,20,000/-. The subsequent sale through consent decree appears to be a sham transaction for the following reasons:- First: Mvf. Niaz Bibi is wife of Juma Khan, uncle of the original vendees i.e. Respondents No. 2 to 5.
They have only used her name for retaining the property and defeating the pre-emption suit.
Second: The alleged sale has-not been evidenced by any written document like a sale-deed, receipt for payment of the huge amount of Rs.l,20,000/-or any mutation in the revenue record after the so-called consent decree in her favour.
Third: There is nothing to show the source of income of Mst. Niaz Bibi to convene the court that she was in a position to by the land; that in the absence of any document to prove a genuine sale a crude attempt was made to show that a dispute had arisen between Mst. Niaz Bibi and Ata Muhammad, vendor, regarding short-fall of payment of Rs.100/- out of the total sale price amounting to Rs. 1,20,000/-. If she had really managed to pay a sum of Rs. 1,19,900/- she could have conveniently paid the petty amount of Rs. 100/- to settle the matter and avoid the pain and agony of legal proceedings. It appears that no consideration had passed on from Mst. Niaz Bibi to respondents No. 2 to 5 and the dispute about payment of RS.100/- was a created circumstance to give colour of a genuine transaction to a sham one.
Fourth: Had; there been any real dispute about payment of the petty amount of rs. 100/-'then Mst.
Niaz Bibi ought to have contested the matter. Instead, she readily and conveniently agreed to pay the remaining amount of Rs.100/- to respondents No. 2 to 5. This further demonstrates that the alleged subsequent sale was a pre-planned sham transaction aimed at the defeat the petitioner's. Pre-emptive right.
Fifth: No material was produced to prove delivery of possession to Mst. Niaz Bibi.
Sixth: The reason advanced by Mst. Niaz Bibi for purchasing the property negates that it was made in recognition of her superior pre-emptive right. She stated that respondents No.2 to 5 used to taunt that her father had sold the ancestral property.
Seventh: There is nothing to show that Mst. Niaz Bibi had come to know about the sale and declared her intention to file a pre-emption suit whereupon respondents No.2 to 5 agreed to sell the property in her favour in recognition of her superior pre-emptive right.
Eighth: The subsequent transaction appears to be solely for the benefit of respondents No. 2 to 5 whose real objection was to defeat the petitioner's pre-emption suit.
The above reasons have persuaded me to come to the conclusion that the subsequent sale made in favour of Mst. Niaz Bibi respondent No.1 is a sham transaction and no valid title had passed on to her. The transaction not being a genuine sale cannot adversely affect the pre-emptive rights of the petitioner.
7. The petitioner's learned counsel has rightly contended that the concept of disguise or divide in pre-emption matters is always relatable to the original transaction and not to the subsequent sale.
The parties to the original transaction may, through a permissible device defeat the pre-emption suit. It may be in the form of a gift, exchange or mortgage of the property designed to achieve the object by laying bare the truth in an honest manner. On the contrary, a disguise is meant to hide the reality by a counterfeit appearance of the transaction and is akin to deception. That is why in pre-emption suits, a device is allowed by law but not disguise. An alienation made in favour of the subsequent vendee has to be proved to be a real and a bona fide one. Made in recognition of the superior right of a party. An element of collusion between the parties to a subsequent sale will go a long way to negate its genuineness and relegate it to the position of a shame transaction. In the case of Muhammad Akram Khan, a Division Bench of this Court had held:- " It is a well recognized principle of the Pre-emption Law that in order to defeat the plaintiff Pre- emptive, the second sale must be in favour of another pre-emptor with a superior right, in the bona fide exercise of the right, for his on benefit and not for the benefit of other persons >'
In the case of Musali Khan, learned Single Judge of the Peshawar High Court had held that transfer of property to third persons to defeat pre-emption suit is permissible but fictitious and shame transfer could not affect the pre-emptors' right. The relevant part of the judgment reads as under:- "A distinction, therefore, has got to be made between the transfer which is effected for the purpose of defeating the pre-emptor and the one which is absolutely fictitious and sham. While the first transfer would be perfectly valid and legal, the second would be absolutely ineffective so far as the pre-emptor is concerned. If the parties enter into any sham and unreal transaction they would certainly take very great care that nothing should happen as to excite suspicion about the genuineness of the sale."
In the case of Abdul Aziz and others, it was held that if a real and genuine as distinguished from a sham or fictitious sale was made before institution of the suit to a person having rights not inferior to the pre-emptor the claim of the latter would be defeated, the judgments in the cases of Ch. Ghulam Muhammad Khan and Ali Muhammad referred to by the petitioner's learned counsel merely show that a device is permissible to defeat a pre-emption suit.
8. Since, the subsequent sale of the disputed property in favour of respondent No. 1 has been held to be a sham transaction for the reasons stated in para-6 above, the petitioner's contest merely remains with respondents No. 2 to 5. As against them, the petitioner being collateral of the vendor definitely has a superior right of pre-emption. I have noticed that in this case originally the Trial Court had framed issues No. 1 to 8 on 26.4.1982 but failed to mention onus of proof against each issue. Such an irregularity is a material one and would have entailed remand to the Trial Court.
However, in the present case, remand is not called for because no prejudice has been caused to either party due to the above- referred irregularity. The parties were conscious of the real controversy and had led necessary evidence in support of their respective pleas. The defendants/respondents have not challenged before me findings of the Trial Court on issue No. 3 regarding the plaintiff's superior right of pre-emption as against respondents No. 2 to 5. The material issue between the parties was issue No. 4 which is re-produced below:- "Whether Niaz Bibi obtained the suit property on 3.9.1981 by a valid decree and the present suit is not maintainable?
Subsequently, the Trial Court split up the said issue into to with greater clarity and added issues No. 7-A and 7-B on 5.4.1984. While adding the said issues the court took care to mention "OPP" against each issue. The fate of the case revolved around the decision of issues No. 7-A & 7-B. The irregularity originally committed by the Trial Court was thus cured by allocating onus of proof after addition of issues No. 7-A & 7-B. Therefore, no justification is made out to remand the case.
9. For the foregoing discussion the petition is accepted, the judgment and decree dated 23.4.1984 passed by the learned District Judge are set aside and those of the Trial Court dated 27.7.1983 restored leaving the parties to bear their on costs.