' This second appeal is by the vendees-defendants in a pre-emption suit and arises out of the following circumstances.
2. Land measuring 113 Kanals, 9 Marlas comprising Khata numbers 8-11-1213-27 and 47 of Mauza Chuchak, Tehsil Okara, now District Okara, was owned by Mst. Rehmai, Mst. Sahib Bibi and Mst.
Sakina Bibi the daughters of Fateh Din, who are respondents 12, 13 and 14 herein.
3. Vide registered sale-deed, dated 25-5-1963 (Exh.P.3/D.3) the aforesaid ladies sold the disputed land to Abdul Qadir, appellant No,2 and Hassan Akhtar (not impleaded to this appeal). Both minor sons of Noor Ahmad, appellant No,1. This was followed by mutation No, 37 attested on 24-6-1963, Abdul Qadir and Hassan Akhtar aforesaid alienated the aforesaid land through their grandfather in favour of appellant No,1 vide mutation No,41 attested on 8-5-1964 (Exh.D2). Meanwhile, Ahmad Yar deceased, now represented by respondents 1 to 10, had already brought a suit for pre-emption on 0-7-1963 on the ground that he was an uncle of the two vendors, Mst. Sahib Bibi and Mst. Sakina Bibi, and 'Yak Jaddi' of Mst. Rehmai. It was also contended that he was an owner of the estate and a co-sharer in the Khata. Noor Ahmad appellant No,1 was also impleaded to the said suit.
4. The suit was contested on which a number of issues were framed and it was tried. Vide judgment and decree, dated 27-5-1966 the suit filed by Ahmad Yar preemptor was dismissed on the ground that proper court-fee had not been paid on the plaint. An appeal was taken before the learned District Court which was allowed vide judgment, dated 18-2-1967 and the case was remanded to the learned Trial Court. Against that the vendees approached this Court in F.A.O. No,60 of 1967. It was disposed of on 10-5-1973 and the case was remanded to the learned Additional District Judge.
On remand, the learned Additional District Judge disposed of the matter vide judgment and decree, dated 16-10-1975. It was held that the pre-emptor had a preferential right. Accordingly, the suit filed by the deceased pre-emptor was decreed on the basis of the finding that he was not only a collateral of the vendors but also a co-sharer in the khatas.
5. The learned counsel for the respondents has raised a preliminary objection that this appeal is barred by time. According to him under Rule 2 of Order XLII of the Code of Civil Procedure, copy of the judgment of the learned trial Court is also required to be filed alongwith the memo. Of appeal. It was not filed and on 8-3-1990 Civil Miscellaneous 1307/C of 199Q was moved with which certified copy of the judgment of the learned Trial Court was appended and permission was sought to place it on the record. Notice was directed on the said application on 2-4-1990. I could not find any order granting the said application.
6. The learned counsel for the respondents submits that unless delay was condoned in placing the certified copy of the judgment of the Trial Court on the record of this appeal, it is clearly barred by time. Reliance was placed on Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq (PLD 1979 SC 830), Muhammad Hussain and 2 others v. Walayat Hussain and 22 others (PLD 1987 Lahore 615), Abdul Rashid and another v. Muhammad Yusuf (1987 CLC 242), Arshad Khan v. Nawab and another (1987 CLC 955), Sardar v. Ali Muhammad (PLD 1988 Lah. 706), Federation of Pakistan v. Muhammad Sadiq (1987 CLC 1429), Juma and another v. Manzoor (1988 SCMR 1958) and Agricultural Development Bank v. Sh. Muhammad Ayub (1984 CLC 1696).
7. In reply, the learned counsel for the appellant submits that the Court can dispense with production of the copy of the judgment of the Trial Court and this could either be express or implied. According to him, a photo copy of the judgment of the learned Trial Court was filed with the appeal with an application seeking dispensation of the certified copy of the judgment of the learned Trial Court. It appears that on 29-4-1989 an objection was raised on behalf of the respondents that the certified copy of the judgment of the first Court was not appended to the appeal on which Civil Miscellaneous No,1307/C of 1990 was moved on'8-3-1990. The preliminary objection will be attended to in the later part of the judgment.
8. On facts, the learned counsel for the appellant has contended that except Khata. No,8, the pre- emptor was not a co-sharer in other Khatas and appellant No,1 and the deceased pre-emptor were owners of the estate and, therefore, appellant No,1 could defend the sale in his favour. He next contended that Mst. Rehmai, was the wife of the brother of the pre-emptor and, therefore, the plaintiff could not claim to be her collateral. He next contended that except the pedigree-table no evidence was produced in the affirmative and unless the entries in the pedigree-table were corroborated the deceased pre-emptor could not be said to be a collateral of Mst. Sahib Bibi and Mst. Sakina Bibi. Reliance was placed on Rehman v. Noora through his legal heirs (1996 SCMR 300).
He contended that in fact the original sale in favour of two minors was Benami and appellant No,1 was the real vendee and to give effect to the intention of the parties mutation No,41 was duly attested on 8-5-1964. According to him, in any case, this re-sale being in recognition of the superior right of appellant No,1, he could defend the sale in his favour.
9. On the other hand, the learned counsel for the respondents has defended the impugned judgment and decree. According to him, the pre-emptor was a co-sharer in khatas Nos.8, 11, 12, 27 and 47. And as far as khatas Nos.9 and 13 are concerned, the preemptor could maintain the suit in respect of the land in these two khatas on the ground that he was a collateral at-least of two vendors namely Mst. Sahib Bibi and Mst. Sakina Bibi. He further contended that re-sale in favour of Noor Ahmad did not affect the right of .Pre-emption against the original sale because undisputedly the mutation was sanctioned after the institution of the suit. It was, therefore, a sham transaction and was clearly hit by the doctrine of lis-pendens. Reliance was placed on Chandra Kumar Maladas v. Abdul Motaleb, etc. (PLD 1967 SC 28), Khurshid Alam and 2 others v. Muhammad Shah Nawaz and 12 others (1985 CLC 1286) and Mst. Ayesha Abdul Rehman v. Nawazish Malik (1993 CLC 1715).
10. I have considered the submissions made by the learned counsel for the parties. In para. 4 of the plaint, the deceased preemptor had pleaded that he was real uncle of Mst. Sahib Bibi and Mst.
Sakina Bibi the vendors and was co-sharer in the estate. It was not specifically denied and the position taken was that Noor Ahmad was also a co-sharer in the land in dispute. The contention of the learned counsel for the appellants that by mere production of the pedigree-table, it was not established that the deceased preemptor was a collateral of Mst. Sahib Bibi and Sakina Bibi has no merit. Perusal of Exh.P2, the Jamabandi produced on the record on which both the parties have relied, shows that the pre-emptor was a co-sharer in Khatas Nos.8, 11, 12, 27 and 47 while Noor Ahmad appellant No,1 or the original vendees did not possess such a qualification as far as land in these Khatas is concerned. In Khata No,9, however both the pre-emptor as well as Noor Ahmad appellant No,1 were recorded as co-sharer while in Khata No,13 none of the parties is recorded as a co-sharer. Appellant No,1 appeared as his own witness as P.W.1 and admitted that the deceased pre-emptor was aco-sharer. However, as far as Khatas Nos.9 and 13 are concerned, the suit of the pre-emptor was liable to succeed to the extent of the share of Mst. Sakina Bibi and Mst. Sahib Bibi on the ground that the pre-emptor was their real uncle.
11. The contention of the learned counsel for the appellant that the sale in favour of the two minors was 'Benami' and he was the real vendee, although raised in the written statement, was not pressed before the learned two Courts. According to Exh.D1, report 'Roznamcha Waqiati' the grand- father of the two minors (father of Noor Ahmad appellant No,1) re-transferred the disputed land to appellant No,1 by way of re-sale. This report was recorded on 2-6-1964 on which the mutation in question (No,41) was attested on 8-5-1964.
12. Except the assertion of appellant No,1 that he had paid the sale consideration on behalf of the original vendees he had not even claimed in his statement that his sons were the 'Benami' vendees while he was the real vendee. The re-sale to appellant No,1 by the grand-father of the two minor vendees and his plea that the sale in favour of the two minors was 'Benami' is otherwise self- destructive. Appellant No,1 could at best defend the sale to the extent of land in Khatas Nos.9 and 13 to the extent of the share of Mst. Rehmai.
13. Re-sale in recognition of superior right of pre-emption should not only be a valid sale but should also be a genuine transaction as opposed to a sham transaction. In this case neither the re-sale in favor of appellant No,1 was valid, because it was made by the grand-father, who was not even a natural guardian of the two minors nor it was a genuine transaction because a suit had already been filed on 30-8-1963 while the report regarding re-sale was lodged on 2-6-1964 and the mutation was attested on 8-6-1964.
14. The preliminary objection raised by the learned counsel for the respondent has merit. A perusal of the record shows that copy of the judgment of the Trial Court was applied for on 17-9-1989. It was supplied on 18-9-1989 and despite that it was placed on the record on 8-3-1990, after a delay of more than five months. In the application seeking permission to place this document on record, neither the delay from the date of filing of this appeal nor the delay in producing it on the record after obtaining certified copy has been explained. Condemnation of delay has not been sought either. The case appears to be fully covered by the dictum of the Hon'ble Supreme Court in the case of Jumma and another (supra) in which copy of the judgment of the Trial Court was placed on the record after three months of its being supplied to the appellant before the High Court. The appellant has clearly been negligent and, therefore, this appeal is clearly barred by time and is liable to be dismissed on this score alone.
15. For what has been stated above, this appeal is dismissed. The parties are, howeverc left to bear their own costs.