' Muhammad Shafi, Bashir, Taqi Muhammad and Nazar Muhammad petitioners-vendees purchased the suit property comprising an area of 1 Kanal of land situated in Mauza Mari Bhindran, Tehsil and District Gujranwala from Barkat Ali, Muhammad Yousaf and Shaukat Ali all sons of Ali Sher through sale-deed registered on 3-4-1975. Claiming to be the son of Barkat Ali vendor and the nephew of Shaukat Ali and Muhammad Yousaf vendors, which status was not enjoyed by the vendees; Falak Sher pre-emptor instituted his suit to preempt the aforesaid sale dated 3-4-1975.
He contended that the sale price of Rs.6,000 as mentioned in the sale-deed was false and fictitious which was got entered to scare away the pre-emptors and that an amount ofRs,2,000 was fixed and paid thereof. He paid the court-fee on the value ofRs,2,000 and expressed in the plaint that in case the court-fee was deficient he would make up the same on the direction of the Court. The said suit was resisted by the petitionersvendees who denied the superior pre-emptive right of the plaintiff. They contended that they paid an amount ofRs,6,000 as the sale price to the vendors which was also the market value of the same. They pleaded that the suit was improperly valued for the purposes of court-fee and jurisdiction and that the same was 'benami' for the benefit of the vendors. They asserted that the suit land was not properly described. They averred that they had made the improvements on the suit land of the value ofRs,42,000 by raising the construction of a building.
2. According to the pleadings of the parties following issues were framed for determination by the trial Court:- ' ISSUES
(1) Whether the plaintiff has superior right of pre-emption qua the defendants? OPP.
(2) Whether ostensible sale price-Was fixed in good faith or actually paid? OPP
(3) If "No" is answer to issue No,2 above, market value? OPPs
(4) Whether the suit is properly valued for the purposes of court-fee and jurisdiction, if not, what is the correct valuation and with what effect? OPP
(5) Whether the suit is Benami and for the benefit of the vendors? OPD
(6) Whether the land in suit is not properly described, if so, its effect? OPD
(7) Whether the defendants have carried out improvements after sale, if so, when and to what extent? OPD
(8) Relief.
3. The parties produced their evidence. After hearing the arguments learned trial Court disposed of all the issues on merits and decreed the suit of the pre-emptor in the sum of Rs,20,077 i.e, sale price ofRs, 6,000 plus cost of improvements in the sum ofRs,14,077. The pre-emptor was also directed to make up the deficiency of court-fee on the amount ofRs,20,077 after deduction of the court-fee already fixed by him. The deficiency of court-fee was made up by the pre-emptor within time.
4. The appeal preferred by the vendees was dismissed by the learned Additional District Judge before whom only the point of court-fee was argued and no other point was discussed. The revision petition filed by the vendees was dismissed by this Court on 23-10-1995.
5. On 14-12-1995 Civil Miscellaneous 1-C of 1996 was filed by Manzoor Ahmad applicant under section 12(2) of the Code of Civil Procedure wherein he contended that he was one of the vendees against whom no suit was instituted by the pre-emptor whose fresh suit against him could not proceed due to the attraction of point of limitation and whose present suit was liable to be dismissed as being that of partial pre-emption because the disputed property to his 1/5th share could not be considered to have been included in the plaint. He maintained that the impugned judgment and decree was illegal, without jurisdiction as well as the result of fraud and misrepresentation which is liable to be set aside. The petition has been resisted by Falak Sher pre- emptor(Decree-holder), at present respondent. He contended that the application was barred by time, that the name of the applicant did not figure in the Revenue Record or in the record of the Sub-Registrar from whose office the certified copy of the sale-deed was procured and that only' the names of Muhammad Shafi, Muhammad Bashir, Taqi Muhammad and Nazar Muhammad were incorporated in the certified copy of the sale deed obtained by him. He maintained that on the basis of the sale-deed under pre-emption, mutation No,142 was sanctioned on 3-3-1976 wherein the names of four persons Muhammad Bashir, Muhammad Shafi, Taqi Muhammad and Nazar Muhammad were incorporated as the vendees. He expressed his ignorance about Manzoor Ahmad applicant as one of the vendees who pleaded that the instant petition was moved at the instance of the aforesaid four persons judgment-debtors.
6. Initially the objection was raised by Falak Sher pre-emptor/decreeholder that the petition(C.M.1/1996) under disposal filed by Manzoor Ahmad applicant is to be heard by the learned trial Court and not by the Revisional Court as the dispute' projected and asserted is that of original nature which should not be disposed of in the High Court. However, the stand of Manzoor Ahmad applicant was that this Court has to decide the application moved under section 12(2) of the Civil Procedure Code. This controversy was independently resolved on 10-10-1997 in favour of Manzoor Ahmad applicant. The reliance was placed on Mrs. Rukha Rafiq Chaudhri v. Major Malik Muhammad Ishaq (1986 CLC 1211) as well as Habib Bank Ltd and 2 others v. Major Naseem Ahmad (PLD 1994 Lahore 119) and consequently it was held that the trial Court cannot be given the authority to inquire into fraud, misrepresentation or lack of jurisdiction under section 12(2) of the Civil Procedure Code with respect to a dispute which had stood the test of correctness in higher forum as the finality attached to the Appellate/Revision Judgment shall stand eroded. Hence the petition is being decided on merits by this Court infra.
' The parties produced their evidence. Manzoor Ahmad applicant appeared as P.W.1 who produced the original sale-deed as Exh.PW.A/1. He contended that in the disputed plot comprising one Kanal of land he had 1/5th share and that his name was mentioned in the original sale-deed as the vendee alongwith Muhammad Shaft, Muhammad Bashir sons of Rehmat Ullah as well as Taqi Muhammad and Nazar Muhammad sons of Abdul Rashid as the vendees and that they all the vendees raised the construction on the disputed plot wherein he lived alongwith his family. He stated in his cross-examination that Rehmat Ullah and Abdul Rashid were his real paternal uncles.
He showed his ignorance about the visit of a Local Commissioner at the spot during the pendency on the civil suit. He expressed his ignorance about the attestation of mutation of the basis of sale- deed Exh.PW.A/1. He denied the suggestion that he was aware about the pendency of the suit for possession by pre-emption. He admitted that he did not move any application before any Revenue Officer to get entered his name in the Revenue Record as the owner of 1/5th share in the plot. He admitted that before taking up his residence in the house constructed on the plot in dispute he lived in the same village Mari Bhandari. He produced Exh.PW.A/2, copy of the statement of Muhammad Shafi defendant-vendee recorded by the trial Court as D.W.3. In rebuttal Falak Sher pre-emptor/decree-holder appeared as D.W.1 and narrated the facts of his case. He stated that he instituted the suit for possession by pre-emption on 20-3-1976 against Muhammad Shafi and Muhammad Bashir sons of Rehmat Ullah as well as Taqi Muhammad and Nazar Muhammad sons of Abdul Rashid regarding the plot in dispute, that the suit was decreed and that the appeal and the revision petition were also dismissed. He stated that he obtained the certified copy of the sale- deed from the office of the Sub-Registrar Gujranwala. He stated that a Local Commissioner was appointed by the trial Court who visited the plot in dispute on 6-6-1976 when Manzoor Ahmad applicant and many other persons gathered there. He stated that Manzoor Ahmad applicant instituted a suit for partition about the disputed plot and during the pendency of that suit this Application No,1-C of 1996 under disposal was filed after the dismissal of the aforesaid revision petition. He added that on 28-1-W96 the suit for partition was withdrawn by Manzoor Ahmad applicant. He stated that he filed the execution petition when he was informed that the stay was issued and the fact in the matter was recorded in the Daily Diary at the instance of Muhammad Shafi vendee. He stated that the application under disposal was filed under section 12(2) of the Code of Civil Procedure by Manzoor Ahmad at the instance of Muhammad Shafi vendee and that he had not committed any fraud or made any misrepresentation either with the applicant or the Court. He stated that before making of the application under disposal he was not aware about the contention of Manzoor Ahmad applicant regarding his claim as names of the four persons mentioned as defendants in the plaint were narrated in the certified copy of the sale-deed. He tendered in evidence the certified copy of the sale deed regarding the property in dispute as Exh.DWA/1, copy of the mutation No, 142 dated 3-3-1976 as Exh.DW.A/2; copies of Jamabandi as Exh.DW.A/3 to Exh.DW.A/6, copy of Khasra Girdawari from Kharif 1992 to Rabi 1996 as Exh.DW.A/7 and copy of the application submitted by 1 % Muhammad Shafi vendee before the Patwari on 17-1-1997 to get recorded the fact of stay order regarding the disputed property in the Daily Diary as Exh.DW.A/8 having the copy of the relevant entry on its back as Exh.A/9. In his cross-examination he admitted that in the certified copy of the sale-deed the number of the vendees was mentioned as five (5). However, he stated that four names were entered therein. He stated that he instituted the suit against four persons whose names were also mentioned in the mutation. He denied the suggestion that Manzoor Ahmad had filed the application under disposal for his own interest and that his suit was that of partial pre-emption. He denied the suggestion that Manzoor Ahmad lived in the house constructed on the disputed plot. Abdul Hamid, Head Clerk posted in the office of the Sub-Registrar Gujranwala appeared as C.W.1 who proved photostat Exh.D.W.A/1 with regard to the sale-deed of the disputed property. When cross-examined by the learned counsel for Manzoor Ahmad applicant he stated that portion ' A' 1A in Exh.D.W.A/1 projected that there were five vendees.
When cross-examined by the learned counsel for Falak Sher decree holder/respondent he admitted that Muhammad Shafi, Muhammad Bashir, Taqi Muhammad and Nazar Muhammad were mentioned as the vendees and that no other vendee has ben named therein.
8. I have heard the learned counsel for the contesting parties and gone through the record before me. Learned counsel for Manzoor Ahmad applicant, who has filed this application under disposal under section 12(2) of the Code of Civil Procedure, referred to original sale-deed Exh.P.W.A/1 and argued that in addition to Muhammad Shafi, Bashir, Taqi Muhammad and Nazar Muhammad, the 5th vendee was none else than Manzoor Ahmad applicant and that since the suit has not been instituted against him the decree is liable to be set aside. He maintained that there was one indivisible transaction and one sale-deed pertaining to the suit property and that since Manzoor Ahmad applicant was not included in the list of the defendants the suit is liable to be dismissed being that of partial pre-emption and that the same at present is also barred by time which was also hit by non-joinder of parties i.e, Manzoor Ahmad applicant (vendee). He added that even in the photostat of the sale-deed though the name of Manzoor Ahmad stood eclipsed, number of the vendees is mentioned as five while the suit for preemption was instituted against four vendees and that it was incumbent upon the pre-emptor to have made the inquiry and investigation about the fifth vendee. According to him this laxity on the part of the decree-holder shall grant the legal benefit to Manzoor Ahmad applicant. On the contrary learned counsel for Falak Sher decree- holder/ respondent referred to photostat Exh.D.A./1 of the sale-deed issued from Register Behi No,1 wherein the names of Muhammad Shafi and Bashir sons of Rehmat Ullah as well as Taqi Muhammad and Nazar Muhammad sons of Abdul Rashid are incorporated as the vendees, copy of mutation No,142 dated 2-3-1976 wherein names of the aforesaid 4 persons are mentioned as the purchasers, copies of Jamabandi Exh.D.A./3 to Exh.DA/6 wherein only Muhammad Bashir, Muhammad Shafi, Taqi Muhammad and Nazar Muhammad are incorporated as the owners of the house in which the name of Manzoor Ahmad is not mentioned and Exh.DW.A/8 and Exh.DW.A/9, the copy of the application and the copy from the Daily Diary of the Patwari about the issuance of temporary injunction. He maintained that in the photostat of the sale-deed, the photostat of the mutation and the photostat of all the Jamabandis Manzoor Ahmad has not been incorporated as the vendee which fact is enough to make out that a device was being adopted by the remaining four vendees to non-suit Falak Sher pre-emptor. He added that the effort was being made by the vendees to play fraud upon and to misrepresent the prospective pre-emptor(s) by placing the name of Manzoor Ahmad out of whole of the relevant Revenue Record so that Manzoor Ahmad applicant is in a safe position to non-suit the decree-holder. He maintained that whole of the property purchased by the vendees was the subject-matter of the suit and that whole of the pre- emption money alongwith the costs of improvements was deposited by the decree-holder. In consequence he canvassed that Manzoor Ahmad applicant is not entitled to derive the benefit of the silence of his co-vendees who did not take up the stand in the written statement that Manzoor Ahmad was also one of the vendees and that the suit was that of partial pre-emption. In my view the reasoning adopted by the learned counsel for Falak Sher pre-emptor has to prevail. In the certified photostat of the sale-deed attached with the plaint of the suit instituted by Falak Sher pre- emptor on 20-3-1976, the name of Manzoor Ahmad is not mentioned as the vendee. In case the number of the vendees was A mentioned as five, that would have no adverse effect against the interest of Falak Sher pre-emptor who had no option but to rely upon the entries in the photostat of the sale-deed issued from Register Behi No,1 wherein Muhammad Shafi, Muhammad Bashir, Taqi Muhammad and Nazar Muhammad were incorporated as the vendees. It is pertinent to mention that on the basis of the sale-deed, Mutation No,142 dated 3-3-1976 was sanctioned in the names of Muhammad Bashir and Muhammad Shaft to the extent of 1/2 share in equal shares and in favour of Taqi Muhammad and Nazar Muhammad to the remaining extent of 1/2 share with equal shares.
This fact was also incorporated in the aforesaid Jamabandis produced as Exh. DW.A/3 to Exh.DW.A/6. In the written statement no objection was raised that Manzoor Ahmad stood eclipsed from the list of the vendees. The factual position is that no portion of the land in dispute was left and that the suit for possession by pre-emption was instituted with respect to whole of the suit property. Legally Falak Sher pre-emptor could proceed on the basis of the photostat of the sale- deed supplied to him by the Registration Department on the basis of the relevant Register Behi No,1 wherein Manzoor Ahmad applicant is not mentioned as a vendee. Thus, Falak Sher pre-emptor is not at fault and he is legally entitled to derive the legal benefit of the recitals of the photostat of sale-deed prepared from Register Behi No,1. On this ground original sale-deed Exh. DW.A/1 shall stand eclipsed for the purpose of decision of the factual controversy in hand. The entries in the mutation and in the Jamabandis are made by the Patwari on the basis of the sale-deed which was under the possession of the defendants-vendees. As expressed above, the suit has been instituted with respect to whole of the land sole through sale-deed registered on 3-4-1975. It can safely be expressed that in case the weight is given to the assertions raised by the learned counsel for the applicant it would be nothing but giving the free hand to the clerical staff of the Sub-Registrar posted in the Registration Office. The texture of the society is lowering with the passage of time and the control of the authorities on the subordinates is becoming lose. If the proposed relief is granted to the applicant it would be nothing but the affirmation of the wrong deed of the Copy Clerk of the Registration Office. The suit was instituted with respect to whole of the disputed property purchased by the vendees. The pre-emptor has deposited whole of the pre-emption money.
Obviously the four vendees-defendants mentioned in the plaint are liable to pay the price of the land to Manzoor Ahmad applicant to the extent of his share. On the aforesaid grounds raised by Manzoor Ahmad applicant, Falak Sher decree-holder cannot be non-suited. The four vendees kept quiet and contested the suit instituted on 20-3-1976 wherein the Civil Revision petition was disposed of by this High Court on 23-10-1995. However, it was on 16-1-1996 that the application under disposal was filed under section 12(2) of the Code of Civil Procedure. It cannot be expected that the four vendeesdefendants did not inform Manzoor Ahmad applicant about the institution and pendency of the suit against them for possession by pre-emption with respect to the same property wherein Manzoor Ahmad was the owner of his 1/5th share. A local Commissioner visited the disputed property on 6-6-1977 who submitted his report which forms part of the suit file.
Muhammad Shafi vendee submitted the application before the Patwari on 17-1-1996, a copy of which is Exh.DW.A/8 and on its basis the patwari incorporated the fact of issuance of stay order in his Daily Diary on 18-1-1996. It shows that Muhammad Shafi vendee/judgment debtor was playing the illegal role in the matter by placing the consenting Manzoor Ahmad applicant in the background. In the circumstances I hold that no fraud or misrepresentation was played by Falak Sher pre-emptor as asserted by Manzoor Ahmad applicant who has miserably failed in his enterprise to non-suit Falak Sher in the aforesaid manner against whom (Falak Sher) misrepresentation was effected and the effort to play the fraud was made. In the circumstances I hold that Falak Sher is the owner of the suit property under preemption who can enjoy the fruits of the same.
9. I must record at this stage that a case of the instant nature was earlier dealt with by me and the judgment of the same is printed as Mst. Bhirawan Bibi v. Ladha and others (1996 MLD 1701 Multan Bench). I have to express that to play the fraud upon the prosepective pre-emptor(s) such type of help is obtained by the vendee(s) from the staff of the Registration Office under the administrative control of the Sub-Registrar.
10. Finding no force in this petition, I dismiss the same with costs.