' MUHAMMAD YUNUS SURAKHVI, J.---Both the above titled Appeals Nos.143 and 144 of 1999, by way of leave of the Court, are directed against the judgment and decree of the High Court passed on 3-6- 1999, whereby the appeal filed by Abdul Qayyum Khan, respondent herein, against the judgment and decree of the District Judge, Pallandri was partly accepted and a decree for pre-emption was passed in his favour to the extent of land measuring 10 Kanals, 3 Marlas. Against the aforesaid judgment and decree of the High Court both the appellants and respondent have filed separate appeals. As there are common points of law and facts, therefore, both the appeals are disposed of through this singe judgment.
2. The necessary facts, forming the background of the present appeals, briefly stated, are that a sale-deed was executed on 20th July, 1994, whereby land measuring 24 Kanals, 3 Marlas, comprising Khewat No,47, Khata No,175/103 and Khewat No,124, Khata No,422, old Khasra Nos. 309/4, 310/4, 310/4, 310/4, present Khasra Nos. 24, 25, 26 and 27, situate in village Tehlian, Tehsil Pallandri was purportedly sold to Muhammad Said Khan. The vendors Khadim Hussain and 13 others filed a suit on 18th August, 1994, in the Court of Sub-Judge Pallandri seeking cancellation of sale-deed on certain grounds mentioned in the plaint. Muhammad Said Khan, who was impleaded as a defendant, appeared on the same day and filed a written statement in which he admitted the claim of plaintiffs and consented that the suit filed by Khadim Hussain and 13 others may be decreed. Accordingly the learned Sub-Judge decreed the suit and annulled the sale-deed on 13th August 1994. Abdul Qayyum Khan, respondent herein, filed a suit for pre-emption on the basis of his prior right of purchase. He also filed another suit in which he sought a declaration that the consent decree mentioned above was void and it was a result of the fraud. It was also averred that the consent decree was procured in order to defeat the right of pre-emption of plaintiff-respondent Abdul Qayyum Khan. It was further alleged that the suit was in fact not filed on 13th August, 1994, but was filed on 18th August, 1994. It was also alleged that fraud was practiced to show that the suit was filed and decreed on 13th August, 1994, which, as claimed, was clear from the relevant documents and the Court register.
3. Both the suits were dismissed for want of proof on 30th August, 1995. First appeal filed by Abdul Qayyum Khan was dismissed by the learned District Judge, Pallandri on 5th March, 1997, but the High Court has accepted the second appeal filed Abdul Qayyum Khan and has reversed the findings recorded by the Courts below. The High Court has decreed the suit instituted a cancellation of consent decree and has part decreed the pre-emption suit. The learner Judge in the High Court has recorded a clear finding that the consent decree passed on 13t1 August, 1994, was result of fraud and tampering. The learned Judge has found that the suit was not filed on 13th August, 1994 but was filed on 18th August, 1994, when the pre-emption suit had already been instituted The learned Judge has taken the view that fraud was practiced to defeat the preferential right of plaintiff. The High Court has decreed the pre-emption suit of respondent Abdul Qayyum Khan to the extent of land measuring 10 Kanals and 3 Marlas, out of land measuring 24 Kanals and 3 Marlas, in Khewat No,47, along with a share in the house, subject to orders which may be passed by the Appellate Court. The High Court also ordered that a case in light of its findings be registered about the fraud. Hence both these appeals, one filed by Muhammad Said Khan and others for dismissing the suit of plaintiff-respondent Abdul Qayyum Khan and the other by Abdul Qayyum Khan for decreeing his suit for pre-emption in toto.
4. In support of appeal it was vehemently contended by Mr.Imdad Ali Mallick, the learned counsel for appellants Muhammad Said Khan and others,. That plaintiff-respondent Abdul Qayyum Khan was not entitled to any decree of pre-emption as the sale-deed which was pre-empted by him stood already cancelled through a compromise decree passed by the Sub-Judge before the institution of the pre-emption suit. Therefore, according to the learned counsel no sale was existing which could have been pre-empted. The learned counsel maintained that the plaintiff-respondent had no preferential right purchase of the suit property as he was not registered as a co-sharer in the revenue record there was no proof whatsoever for his Id being contiguous to the suit land. The rend counsel strenuously argued that the vendors who alienated the land were the veers of land only to the extent of 1/3rd of the suit land but the High Court committed an roar in decreeing the suit of the plaintiffs respondent Abdul Qayyum Khan from Khasra o.25, Khewat No, 47, to the extent of Kanals, 3 Marlas, which was the total rage of the said Khasra number. Thus, in Lew of the learned counsel for appellants turn the aforesaid Khasra number to the extent of 1/3rd share of the vendors the decree, if any, could have been passed by the High Court. The learned counsel pressed into rice the submission that the High Court without any misreading or non-reading set side the concurrent findings recorded by the Courts below who dismissed the suit filed by plaintiff-respondent Abdul Qayyum Khan for rant of proof. The learned counsel further submitted that the suit property was further lineated by vendee Muhammad Said Khan by gift-deed dated January 22, 1996, and the same was once again transferred through a sale-deed executed on September 28, 1996 bus, according to the learned counsel for appellants, the plaintiff-respondent was not obsessed with a superior right of preemption as compared to last vendee Javed.
5. Controverting the arguments raised y the learned counsel for the appellants, Syed Mushtaq Hussain Gilani, the learned counsel for respondent Abdul Qayyum Khan, rerated that the plaintiff- respondent filed a pre-emption suit in respect of the suit land on 8-8-1994, in the Court of Sub- Judge, 'allandri on the basis of his preferential right as being a co-sharer in the suit land and also on the basis of his land being adjacent/contiguous to the suit land. The learned counsel for respondent argued with, vehemence that after the institution of suit of respondent for pre-emption, the vendors Khadim Hussain and others in collusion with vendee Muhammad Said Khan filed a suit for cancellation of sale-deed to defeat the right of pre-emption of respondent. The aforesaid suit with the connivance of the then Sub-Judge and his clerk (Ahlmed Civil) was shown to have been filed on 13th August, 1994, by tampering with the record. The interim orders recorded by the then Sub-Judge at the time of institution of the suit passed by him, the date of its entry in the relevant register and the date of statement of vendee clearly establish that the suit was filed, as a matter of fact, on 18th August 1994, but in order to defeat the prior right of purchase of plaintiff-respondent Abdul Qayyum Khan it was shown to have been instituted on 13th August, 1994 and was decreed on the same day by committing fraud. The learned counsel contended that the plaintiff-respondent Abdul Qayyum Khan brought forth sufficient evidence on record showing that he had preferential right with regard to the whole of the suit property but the High Court granted decree to the extent of only 10 Kanals 3 Marlas, whereas in the other land he was also a co-sharer with the vendors and his land was contiguous to the land of the vendors. The learned counsel argued that the High Court also failed to record its finding on the point of contiguity of the land of respondent with the land of the vendors. According to the learned counsel, Abdul Qayyum Khan was entitled to pre-empt the whole property but he was illegally deprived of the land to the extent of 14 Kanals.
6. Before entering into question as to whether the pre-emptor- respondent had a superior right of purchase against the vendee and also against the subsequent transferees, it would be appropriate, in the first instance, to attend to the point which was discussed by the High Court in para. No,6 of its judgment. In the aforesaid para. It has been opined by the High Court that after the institution of suit for pre-emption, the vendors in collusion with the vendee and also with the connivance of Sub-Judge and his clerk fraudulently maneuvered to secure a decree for cancellation of sale-deed in their favour allegedly on 13-8-1994. The High Court observed that the suit was not filed on 13-8-1994, but the same was filed on 18-8-1994; however, an effort was made to defeat the right of plaintiff-respondent and fraudulently with the connivance of Sub-Judge and his clerk the same was shown to have been instituted on 13-8-1994. The Sub-Judge thus illegally passed an order and decree on the said date. The High Court also observed that the sale-deed, on the date the pre-emption suit was filed, was intact. As a result of the finding given in para.No,6 of the impugned judgment, the High Court in concluding para No,16 directed that a case under relevant provisions of law shall be registered, keeping in view the observations made in para No,6 of the judgment, after the expiry of period of limitation provided against the judgment and decree, however, subject to the orders by the Appellate Court.
7. In the present appeals we do not want to enter into the controversy as to who was responsible for tampering the record. If we hold the then Sub-Judge Sardar Muhammad Ayaz Khan, responsible for tampering the record in collusion with his clerk and the vendors in the suit titled Khadim Hussain and others v. Muhammad Said Khan (Civil Appeal No,196 of 1994, instituted on 13- 8-1994, decided on 13-8-1994), then these observations are like to prejudice the appeal filed by Sardar Muhammad Ayaz Khan, the then Sub-Jud challenging the findings recorded in pal Nos. 6 and 16 of the impugned judgment the High Court. As the merits of the part before us can be determined, without hold] someone responsible for tampering the ma of the Court, we propose to decide the appeals accordingly.
8. A perusal of the file Exh.DP show as rightly observed by the High Court, the suit on behalf of vendors was filed 18th August, 1994 but through tampering a fraud it was shown to have been institute and decreed on 13th August, 1994. When t plaint was received by the Presiding Office under his signatures, he put the date 18-8-1994, but the same was tampered 13-8-1994. The date given at the bottom the plaint also appears to have been tamper) with. The date Exh.DF/1 appears to ha been tampered with by rubbing with blade The statements of vendee and the witness were recorded on 18-8-1994, marked Exhs.DA and DB. On the said statements date is entered as 18-8- 1994. The date Fard-Talbana also appears to have be tampered with. The date on the stamp we appears to have been purchased in the of Ch. Muhammad Aslam, counsel for the vendors, also appears to have been tamper with but the actual date seems to be 21-8-1994. The suit for pre- emption w entered in the register of suits at Seri No,196 but the same was shown before suits filed on 10-8-1994 and 11-8-1994 serial Nos. 197 and 198. This shows that concerned clerk had not been entering suits in the relevant register regularly as and when entertained but after the collection some suits he used to enter the same different serial numbers. So far as the suit pre-emption between the parties is concerned was entered at some vacant place in the court register as the same could not be entered before the suits filed earlier. 'he judgment and decree were passed on 3-8-1994, but the perusal of aforesaid documents shows that the said was not filed on 13-8-1994, but was filed on 18-8-1994. Thus, it is clear that an effort was made to lefeat the prior right of purchase of suit property filed by the plaintiff-respondent Abdul Qayyum Khan. It, therefore, follows hat the suit suit was filed after the institution if the suit for pre-emption by plaintiff respondent which, as a matter of fact, mounted to fraud to deny the legal right of the pre-emptor-respondent.
Thus, we uphold he finding of the High Court on this point Ind hold that the sale-deed on the date the pre-emption suit was filed by plaintiff-respondent was intact.
9. Alternatively it was contended by the earned counsel for Muhammad Said Khan Ind others, that if for the sake of arguments it is assumed that the suit was filed on 18-8-1994 instead of 13-8-1994, the suit property stood transferred to the vendors as such the plaintiff-respondent had to establish pis prior right of purchase against the vendors as well as the subsequent vendees. The earned counsel for the appellants relied upon the reported cases tilted Taj Din v. Jumma and 6 others PLD 1978 SC (AJ&K) 131 and Fazal Bi and others v. Ghulam Hussain and ethers PLD 1981 SC (AJ&K) 103, but in our considered view these cases are of no help to the learned counsel for the said appellants as it was held in Taj Din v. Jumma and 6 others 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 then the subsequent vendee provided the re-sale has been made within a period of limitation. The aforesaid authority does not lay down any rule about the transfer of property in favour of vendors by the vendee. Similarly the other authority Fazal Bi and others v. Ghulam Hussain and others PLD 1981 SC (AJ&K) 103, does not advance the case of appellants rather it supports the case of plaintiff-respondent.
10. It may usefully be stated that collusion between the vendors and vendee to give back the suit property to the vendors aiming at defeating the pre-emption suit does not adversely affect the suit for pre-emption. In a case reported as Falak Sher v. Muhammad Rashid and another PLD 1982 Lah.
426, it was observed as follows:-- "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., Imami v. Allah Diya and others, Sukha and others v. Arura Mal and another, Pal Singh and another v. Jamun and Muhammad Khan and another v. Zir Mir Khan and-2 others.
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 pre-emption 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 the 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."
' Somewhat similar proposition came under consideration before the Lahore High Court in case reported as Rahmat Ali and 10 others v. Ahmad Yar 1979 CLC 690, wherein it was held as under:-- "It is well settled that in pre-emption cases if re-sale is made by the vendee in favour of a person having superior right of pre-emption as against the pre-emptor, the suit of such a preemptor can be defeated; for in such a case a person possessing superior right of pre-emption, 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 pre-emptor. 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 preemption 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 pre-emptor, having superior right of pre-emption 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 Pesh.
1. It does not in any manner advance the appellant's case."
Thus, relying upon the aforesaid authorities it can safely be concluded that even in case the suit property had been transferred to the vendors by the vendee the superior right of plaintiff- respondent could: not be defeated as the vendors cannot claim any right against him as discussed above. It may also be clarified that the re-sale in favour of a subsequent vendee after the period limitation does not defeat the pre-emptor's right as the principle of lis pendens is fully attracted. Therefore, the transfer of the suit property in favour of Muhammad Ashraf, one of the vendors through the gift-deed and later on in favour of Javed Akhter, now represented by his legal representatives, through a sale-deed was hit by the principle of lis pendens and therefore, the aforesaid transfer did not in any way defeat the right of plaintiff-respondent against the original vendee.
11. Now we come to the merits of the case. The plaintiff-respondent Abdul Qayyum Khan based his claim of pre-empting the suit land on two-fold 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 land.
' The vendee-defendant Muhammad Said Khan controverted the plea of prior right of purchase of respondent and alleged that the plaintiff-pre-emptor had no cause of action to file the suit for pre- emption as the sale-deed, which was purportedly pre-empted, had been annulled before the institution of pre-emption suit. Thus, according to the defendant-vendee when the sale was no more in existence the suit of plaintiff-pre-emptor was liable to be dismissed. According to the vendee-defendant a suit on behalf of vendors for the cancellation of sale-deed was filed which was admitted by the vendee as such a consent decree was passed in favour of vendors' and the sale-deed was cancelled.
12. As to whether the plaintiff-preemptor proved his right of prior purchase as compared to the vendee-appellant, it may be stated that plaintiff's claim is that he was co-sharer in the suit land and also that his land was contiguous to the land of the vendors. It was further alleged by the plaintiff-respondent that his father died about two years prior to the institution of the suit, who was a co-sharer with the vendors and the mutation of the estate of his father on his death was attested in favour of plaintiff-respondent along with other heirs of the deceased. In support of his claim the respondent-pre-emptor produced a certified copy of Misl-e-Haqiat for the year 1981-82, comprising Khewat Nos. 47, Exh.PB, showing his father Dewan Khan as co-sharer and a copy of mutation register Exh.P.C. Which suggests that mutation was sanctioned in favour of plaintiff- respondent and other heirs of deceased for the estate of the deceased. The sale sought to be pre- empted. Comprises of Khewat Nos.47 and 124 along with a house. The land measuring 10 Kanals and 3 Marlas, comprising Khewat No,47, Khata No,175/3, Survey No,309/2 (old), 25 (new), was transferred while land measuring 14 Kanals, Khewat No,124 was alienated through the sale-deed.
Pre-emptor Abdul Qayyum Khan is legal heir of Dewan 'Khan while vendors Khadim Hussain and others are legal representatives of Din Muhammad. Dewan Khan and Din Muhammad are entered as owners of the land under Survey No,309/2 (old) new No,25, in Khewat No,47. Therefore, as observed by the High Court the right of plaintiff-pre-emptor with regard to the land measuring 10 Kanals, 3 Marlas, comprising Survey No,25 (new) is established and a decree for pre-emption to the above extent was rightly granted in his favour by the High Court. The contention raised by the learned counsel for the appellants in the counter-appeal, Mr. Imdad Ali Mallick, that the vendors were entitled only to the extent of 1/3rd to alienate the land but they transferred the whole land in excess of their share from Khasra No,25, Khewat No,47, has no substance. The aforesaid Khasra No,25 is entered in the exclusive possession of Dewar. Khan co-sharer, the father of plaintiff- preemptor Abdul Qayyum Khan and is within the overall share of Dewan Khan in Khewat No,47.
Thus, the vendor was competent to alienate the whole land which was in his exclusive possession provided the same did not exceed his overall share in the Khewat. Thus there was no illegality on the part of Dewan Khan to alienate the whole land from said Khasra number. Therefore the aforesaid decree granted by the High Court in favour of plaintiff-respondent Abdul Qayyum Khan stands upheld.
13. So far as Khewat No,124 is concerned, it comprises of three Khasra numbers. The old Khasra numbers were 310/4, 310/4 and 310/4, whereas the new Khasra numbers are 24, 26 and 27. The acreage of land sold from the above Khewat is 14 Kanals. According to Misl-e-Haqiat 1981-82 Exh D .F. Respondent-pre-emptor Abdul Qayyum Khan is not entered as a co-sharer in the said Khewat or Khasra numbers. Therefore the plaintiff-respondent Abdul Qayyum Khan cannot be said to be a co-sharer or co-owner in the above-referred land. To the similar effect are the entries in Khasra Girdawaris 1993 Rabi to 1994 Kharif, with regard to Khasra Nos. 24, 26 and 27. Therefore, in presence of this documentary evidence it can safely be held that respondent-pre-emptor is not a co-sharer in Khasra Nos. 24, 26 and 27, Khewat No,124. The High Court therefore, rightly reached the conclusion that the respondent-pre-emptor had no right of pre-emption with regard to the above land on the basis of his being a co-sharer with the vendors.
14. Section 14 of the AJ&K Right of Prior Purchase (Amendment) Act, 1993 may usefully be reproduced below:--- "14.---(1) Subject to the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest---
(a) firstly in Shafi Sharik;
(b) secondly in Shafi Khalit; and
(c) thirdly in Shafi Jar.
' Explanation.---
1. "Shafi Shank" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons.
2. "Shafi Khalit" means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
3. "Shafi Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
' Keeping in view the above provision of law, the case of plaintiff-respondent Abdul Qayyum Khan in so far as land measuring 10 Kanals, 3 Marlas, from Khasra No,25, Khewat No,47, is concerned, falls in category firstly of section 14(1)(a) explanation (1) as he is a co-owner in the corpus of undivided immovable property sold by the vendors.
15. As stated earlier, the plaintiff-respondent based his claim of superior right not only on the basis of his being a co-sharer along with the vendors but also on the ground that his land was contiguous to the land sold by the vendors, therefore, he had a preferential right on that score, but the High Court did not advert to the point as to whether the respondent-pre-emptor was entitled to a decree on the basis of contiguity of his land with the vendors. This plea was specifically raised in the plaint and was argued vehemently by the learned counsel for respondent Abdul Qayyum Khan that the High Court failed to attend to this point. According to the entries in Misl-e-Haqiat 1981-82, Khasra No,20, measuring 2 Kanals, 9 Marlas, Khewat No,47 of village Tehlian, Tehsil Sudhnooti, is shown in exclusive possession of Dewan Khan, father of preemptor Abdul Qayyum Khan, as a co-sharer. He is also entered in the column of ownership as an owner of this land to the extent of 2/3rd share. This Khasra number, according to the attested copy of Aks-Latha Exh.D.L. Is contiguous to the land sold by the vendors from Khasra Nos. 24 and 25. Therefore, the respondent in our view has a prior right of purchase of Khasra No,24, measuring 2 Kanals and 19 Mamas on the basis of contiguity of his land situated in Khasra No,20 as compared to the vendee-appellant Muhammad Said Khan. The contention raised by the learned counsel for the appellants Syed Mushtaq Hussain Gilani that the vendee's own land is also contiguous to the land sold by the vendors, therefore, his right being equal or superior to the pre-emptor, a decree for pre-emption could not have been passed in favour of respondent on the basis of contiguity merits no consideration for the simple reason that vendee-appellant never raised a plea in his written statement that his right was equal to the pre-emptor on the basis of contiguity. By now it remains settled that a plea which has not been raised in the pleading the evidence in respect of that cannot be looked into. Therefore, in our view respondent-pre-emptor is also entitled to a decree for pre-emption in respect of suit land measuring 2 Kanals, 19 Marlas situate in Khasra No,24, comprising Khewat No,124, Khata No,423/435, on the payment of proportionate consideration amount. It is indeed correct that Muhammad Nawaz Khan, the attorney for plaintiff-respondent did not say anything in his statement with regard to the contiguity of the land of the respondent-pre- emptor with the vendors but we cannot overlook the documentary evidence as well as the evidence of his two witnesses Muhammad Fazal and Khaliq Dad who are unanimous on the point that the land of respondent-preemptor was contiguous to the land sold by the vendors.
16. Both the Courts below on the basis of artificial and flimsy grounds held that respondent-pre- emptor was not entered in the revenue record as a co-sharer as such had no superior right of pre- emption against the vendee. Therefore the concurrent finding recorded by both the Courts below was rightly upset by the High Court as the same was not appreciated in its true perspective. The plaintiff-respondent, as stated earlier, categorically stated in his plaint that his father was a co- sharer along with the vendors who died two years prior to the institution of the suit and on his death his heirs including the plaintiff-respondent had become the owners of the property or estate left by him. It was further stated by the respondent that mutation of the estate of his father has been attested in his name as well as the other heirs. In our considered view even without the attestation of the mutation the right of respondent-preemptor cannot be taken away as the attestation of mutation is merely a formality. Needless to say that the mutation of the estate of the father of respondent-pre-emptor has been attested in favour of Abdul Qayyum Khan and other heirs of the deceased as Exh.P.C.
17. In the light of what has been stated above, the appeal filed by Muhammad Said Khan and others stands dismissed and appeal of Abdul Qayyum Khan is partly accepted in terms that apart from the decree of pre- emption granted in his favour by the High Court to the extent of land measuring 10 Kanals, 3 Marlas, along with the share in the house he is also entitled to a further decree of pre-emption to the extent of land measuring 2 Kanals, 19 Marlas, comprising Survey No,24, Khewat No,124, Khata No,423/435, situate in village Tahlian, Tehsil Sudhnooti, on the basis of contiguity of his land with the vendors on payment of proportionate amount of consideration within a period of two months from the date of announcement of this judgment. The respondent- pre-emptor is directed to deposit the additional proportionate amount of consideration on or before 12th July, 2000 in the trial Court failing which his suit to the above extent shall stand dismissed. Due to the difficult nature of the case, we pass no order as to costs.