SAVED NAJAM-UL-HASSAN KAZMI, J. - This judgment will decide C.R. No. 1146/81 and C.R. No. 1147/81 as the same arise out of a common judgment in a suit for pre-emption.
2. Land measuring 29 kanals, 16 marlas was sold through mutation No. 4212, dated 12.4.1973 in favour of Elahi Bakhsh petitioner in C.R. No. 1146/81 and Muhammad Yousaf etc. Petitioners in C.R.
No. 1147/81. Muhammad Abid and Muhammad Kashif, respondents Nos. 1 and 2 filed a suit to pre- empt the sale on the ground of being collateral of vendors. The suit was resisted by the petitioners by taking plea that the suit was Benami, it was based on mala fide, one of the vendees was a tenant of the property at the time of sale and that the suit was not properly valued for Court-fee and jurisdictional purposes.
3. After issues and evidence, the suit was decreed by the learned Civil Judge vide decree dated 10.1.1979 to the extent of 513 shares of 3 vendors while it was dismissed to the extent of share of Naik Muhammad vendor.
4. Two appeals were filed to assail the judgment of the learned Trial Court which was dismissed by the learned Additional District Judge vide judgment dated 1.7.1981. In these revision petitions, the common judgment given in the two appeals has been called in question.
5. Learned counsel for the petitioner argued that Elahi Bakhsh petitioner was a tenant in the property and since had taken the plea of tenancy in defence, therefore, the Civil Court had no jurisdiction. It was added that even if Elahi Bakhsh had joined strangers in the sale, his right will not be effected and the suit in tom will be dismissed. It was lastly contended that share to the extent of Elahi Bakhsh could not be pre-empted as he was tenant at the time of sale.
6. Learned counsel for the respondents supported the judgment of the Courts below and maintained that the petitioners were rightly non-suited on the principle of sinker.
7. As regard the first objection, the same is not well-founded. It is true that the suit filed by a tenant to enforce his right of pre-emption on the ground of tenancy could be filed before the Collector but if in a suit filed on the ground covered by the Punjab Pre-emption Act, 1913, tenancy is pleaded as a defence to non-suit the pre-emptor, the suit could be competently entertained and decided by the Civil Court. Reference can be made to Khadim Hussain etc. Vs. Muhammad Nawaz Khan (PLJ 1982 SC 86). Since in this case suit was not filed to enforce right of pre-emption on the ground of tenancy while the plea of tenancy was taken in defence, therefore, the suit being covered by the Punjab Pre-emption Act, 1913 was to be heard and decided by the Civil Court and no valid exception can be taken in this regard. The objection as to jurisdiction is without substance which is accordingly repelled.
8. As regard the other points raised by the learned counsel for the petitioner, the same are also without substance. Admittedly, except Elahi Bakhsh the other purchasers/vendees were neither tenants nor had the right equivalent to the pre-emptores. By joining the strangers, Elahi Bakhsh would be deemed to have lost his right on the principle of sinker. The sale was indivisible. Evidence on record proved that the total payment was made in lump sum and, therefore, the share of Elahi Bakhsh petitioner could not be segregated. In Sultan Muhammad and others Vs. Nawab Khan (PLD 1991 SC 130), it was ruled that where a vendee having a superior right of pre-emption, associates stranger, then the rule of sinker will apply and the suit will be decreed unless the impugned sale is divisible, i.e. It is a sale wherein not only share of each vendee is specified but the amount paid towards the price by each vendee is also special. Keeping in view this rule, if the facts of present are examined, it is evident that the sale was not divisible, hence by joining stranger, even Elahi Bakhsh lost his defence and could not protect himself.
9. The learned Courts below after considering the evidence on record, concurrently held that by joining strangers one of the vendees who was a tenant would be deemed to have lost his right on the principle of sinker, which findings could not be shown to be suffering from misreading of record.
10. Resultantly, these revisions are devoid of substance which are accordingly dismissed.