MUHAMMAD NASEEM CHAUDHRI, J. - 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 Yosuaf vendors, which status was not enjoyed by the vendees; Falak Sher pre-emptor instituted his suit to pre-empt 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 of Rs.2,000/- was fixed and paid thereof' He paid the Court-fee on the value of Rs.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 petitioners-vendees who denied the superior pre-emptive right of the plaintiff. They contended that they paid an amount of Rs.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 of Rs,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:- IS.SUES-
(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? OPD.
(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 some, 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 of Rs.6000/- plus cost of improvements in the sum of Rs. 14077/-. The preemptor was also directed to make up the deficiency of Court-fee on the amount of Rs.20,077/- after deduction of the Court-fee already affixed 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 C.M. 1-C/96 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 of 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/decree-holder 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 release was placed on Mrs. Rukha Rafiq Chaudhry Versus Major Malik Muhammad Ishaq (KLR 1986 Civil Cases 379 Lahore) as well as Habib Bank Ltd. And 2 others Versus 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, mis-representation of 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.
7. The parties produced their evidence. Manzoor Ahmad applicant appeared as PW-1 who produced the original sale-deed as Ex.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 Shafi, Muhammad Bashir sons of Rehmat Ullah as well as Taqi Muhammad and Nazar Muhammad sons of Abdul Rashid as the vendees and that 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 importance about the visit of a Local Commissioner at the spot during the pendency of the civil suit. He expressed his ignorance about the attestation of mutation on the basis of sale-deed Ex.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 Ex.PW- A/2, copy of the statement of Muhammad Shafi defendant-vendee recorded by the Trial Court as DW-3. In rebuttal Falak Sher pre-emptor/decree- holder appeared as DW-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 Baashir 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/96 under disposal was filed after the dismissal of the aforesaid revision petition.
He added that on 28.1.1996 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 Shaft 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 Shaft vendee and that he had not committed any fraud or made by 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 name 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 Ex.DWA/1, copy of the Mutation No. 142, dated 3.3.1976 as Ex.DW-A/2; copies of Jamabandi as Ex.DW- A/3 to Ex.DW-A/6, copy of Khasra Girdawari from Kharif 1992 to Rabi 1996 as Ex.DW-A/7 and copy of the application submitted by Muhammad Shaft 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 Ex.DW-A/8 having the copy of the relevant entry on its back as Ex.DW- 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 tour persons whose names were also mentioned in the mutation. He. Denied the suggestion that Manzoor Ahmad had filed the application under disposal for his on 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-in the office of the Sub-Registrar, Gujranwala appeared as CW-1 who proved photo stat Ex.DW-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' in Ex.DWA/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 However, it was on 16.1.1996 that the application under disposal was tiled under Section 12 (2) of the Code of Civil Procedure. It cannot be expected that the four vendees/defendants 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 appellant before the Patwari on 17.1.1996, a copy of which is Ex.DW-A/8 and on its basis the Patwari incorporated the fact of issuance of stay order in his Daily Diary on 17.1.1996. 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 wa$ 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 pre-emption 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 Versus Lodha etc. (PLJ 1996 Lahore 949 Multan Bench). I have to express that to play the fraud upon the prospective 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.