MUHAMMAD NASEEM CHAUDHRI, J. - Evidenced through sale-deed registered on 16.6.1980 the disputed property fully described in the plaint was purchased by Muhammad Mansha, Muhammad Insha, Mst. Sabran and one Muhammad Iqbal (since deceased), at present represented by his legal representatives. Claiming to be a co-sharer in the Khata and the Khewatdar in the village in which the suit property is situated and expressing that the vendees were the stranger thereof; Sabir Ali petitioner- plaintiff/pre-emptor instituted his suit on 1.3.1981 to pre-empt the said sale. He contended that no notice as contemplated under Section 19 of the Punjab Pre-emption Act, 1917 was served on him. He pleaded that the sale price of Rs.4,50,000/- was got entered in the sale-deed fictitiously to scare away the pre-emption and an amount of Rs.2,00,000/- was fixed and paid which was the market value of the suit land.
2. The suit was resisted by the respondents who denied the superior pre-emptive right of Sabir Ali pre-emptor/petitioner. They contended that the Court-fee was not paid within time, that the plaint was insufficiently stamped and that for that reason the suit was barred by time. They maintained that Muhammad Bilal, legal representative of Muhammad Iqbal, had instituted a suit for possession through pre-emption before the Assistant Commissioner, Lodhran on the qualification of being a tenant on the suit property and that the present suit could not proceed. They pleaded that the suit was initially not instituted against Muhammad Insha, vendee/defendant and thus the same was that of partial pre-emption. They contended that the suit was liable to be dismissed being a benami suit. They .Asserted that the sale price of Rs.4,50,000/- was fixed and paid to the vendee and that an amount of Rs.50,000/- was spent on the improvements affected on the suit property before institution of suit. They pleaded that they spent an amount of Rs.45,000/- on the incidental charges. They pleaded that the pre-emptor was estopped by his words and conduct.
They maintained that the previous suit for possession through pre-emption was instituted and withdrawn unjustly and violative of Order XXIII, rules 1, and 2 of the Code of Civil Procedure and the present suit could not proceed. They maintained that two sisters of Muhammad Iqbal deceased- vendee, were impleaded after the per kid of limitation and the suit suffered from partial pre- emption due to that as well. They contended that the initial decree passed on 20.7.1985, was without proper representation of the minors which was nullity in the eyes of law.
3. According to the pleadings of the parties following issues were framed for determination by the Trial Court:- ISSUES;
(1) Whether this suit is liable to be stayed in view of a suit for preemption, pending in the Court of A.C. Lodhran? OPD.
(2) Whether the plaint is insufficiently stamped? If so, its effect? OPD.
(3) Whether the suit is time-barred? OPD.
(4) Whether the suit is tor partial pre-emption" OPD.
(5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.
(6) Whether the suit is benami? If so, its effect? OPD.
(7) Whether the plaintiff has superior right of pre-emption qua the defendants? OPD.
(8) Whether the sale price of Rs.4,50,000/- was fixed in good faith or actually paid? OPD.
(9) If issue No. 8 is not proved, what was the market value of the suit land at the time of its sale?
OPPs.
(9-A) Whether the permission for withdrawal and to file fresh suit, is mala fide, unjust and violative of Order 23 Rule 1, 2 Civil Procedure Code? OPD.
(10) Relief.
(1-A) Whether the defendants have spent Rs.50,000/- on the alleged improvements, if so, are they entitled to recover this amount in case of decreeing of suit? OPD.
(1-B) Whether the defendants are entitled to recover Rs.45,000/- spent as expenses incidental to the sale, in case of decreeing of suit, as has been alleged by them? OPD.
(1-C) Whether the suit is liable to be dismissed for non-joinder of vendee Muhammad Insha in the original suit filed on 1.3.1981? OPD. .
(1-D) Whether Muhammad Iqbal, vendee had died before the institution of the suit? If so, with what effect to implead him as party in the original suit? OPD.
(1-E) Whether Muhammad Mansha, vendee, was impleaded as party on 16.12.1981? If S0, with what effect? OPD.
(1-F) Whether the two sisters of deceased Muhammad Iqbal vendee, namely, Allah Maafi and Mst.
Saleem Bibi were impleaded as party beyond the period of limitation? If so, whether the suit suffers from partial pre-emption on that account? OPD.
(1-G) Whether the decree passed on 20.7.1985, without proper representation of the minors, is nullity in the eyes of law? OPD.
4. The parties produced their evidence oral as well as documentary. The pre-emptor produced Exh.
P-1, copy of Jamabandi for the year 1977-78; Exh. P-2, copy of Khasra Girdawari from Kharif 1978 to Rabi 1979 and Exh. P-3, copy of order dated 23.2.1981 passed by the learned Civil Court granting permission to Sabir Ali petitioner/pre-emptor to withdraw his civil suit during the year 1981. The statement of Sabir Ali petitioner was recorded twice as PW-1 on 24.10.1984 and 16.4.1995. In rebuttal Atta Ullah DW-1, Atta Muhammad DW-2, Muhammad Bilal DW- 3, and Noor Muhammad DNV-4 appeared in the witness-box. Mst. Sabran was examined as DW-5 twice on 23.1.1984 and 13.4.1995.
The defendants produced Exh. D.I to D-4, original receipts, Exh. D-5. Copy of exchange deed dated 27.4.1981; Exh. D-6, copy of gift-deed dated 27.4.1981; Exh. D- 7, copy of registered exchange deed dated 26.4.1981; Exh. D-8, copy of Jamabandi for the year 1981-82; Exh. D-9, copy of plaint of earlier civil suit instituted on 31.1.1981; Exh. D-10 and Exh. D.I 1, copies of interim orders; Exh. D-12, copy of order for withdrawal of the suit with permission to institute the fresh suit; Exh. D-13 and Exh. D-14, copy of office report dated 3.2.1981 alongwith copy of interim order dated 13.3.1983; Exh. D- 15, coy of the petition filed by Sabir Ali petitioner for preparation of statement of net profit and payment of Court-fee in previous civil suit No. 201; Exh. D-16 and D-17, copies of birth entries respectively pertaining to Mst. Saleem Bibi and Mst. Allah Maafi; Exh. D-18, copy of application dated 15.5.1983 for preparation of statement of net profits Exh. D-19, copy of plaint of earlier suit; Exh-D-20, copy o{ Khasra Girdawari; Exh. D-21, copy of Jamabandi tor the year 1981-82; Exh. D-22, certificate of fee for preparation of statement of net profit. Exh. D-23, copy of application dated 26.10.1983, submitted by Muhammad Bilal about the Court-fee; Exh. D-23, copy of application of Sabir Ali for withdrawal of his earlier suit; Exh. D- 25, copy of Mutation No. 52, dated 27.10.1983 on the bassi of registered gift- deed dated 24.4.1980; Exh. D-26, copy of Mutation No. 53, dated 27.10.1983 on the basis of registered exchange deed dated 27.4.1981 and Exh. D-27, copy of the plaint of the suit instituted by Muhammad Bilal defendant on the basis of his superior right of tenancy.
5. After hearing the parties the learned Trial Court (Senior Civil Judge, Lodhran) decided issue Nos. 1 to 5, 1-A, 1-C, 1-D and 1-F against the defendants-vendees/respondents. Issue Nos. 6 to 8, 9-A, 1-G were decided in favour of respondents-defendants. Issue No. 1-E was deleted during trial on the basis of statements of the learned counsel tor the parties recorded or 19.4.1995. On the basis of the decision on issue No. 8 that the sale price of the suit property was Rs.4,50,000/-, issue No. 9 about the market value of suit property was declared to be redundant. Holding that the statements of the D.Ws. About the benami transactions were not cross- examined to the aforesaid fact it was decided that defence of benami stood proved. Issue No. 7 was disposed of by holding that the respondents- defendants had improved their status and the pre-emptor had no superior right.
About issue No. 9-A, it was held that the order about the withdrawal of the suit with permission to institute the fresh suit was unjust and violative of Order XXIII, Rules 1 and 2, Civil Procedure Code.
About issue No. 1-G, it was held that the initial judgment and decree dated 20.7.1985 passed by the Trial Court was set aside by the learned Addl. District Judge, Multan on 10.7.1987 who remanded the matter against which no revision petition was filed and that the aforesaid judgment and decree dated 10.7.1987 had attained finality. On the basis of the verdict on the aforesaid issues, the suit was dismissed.
6. An appeal was preferred which was dismissed by the learned Addl. District Judge, Lodhran.
Issues Nos. I and 2 were not pressed before him who also expressed that no cross-objections were filed. The findings of the Trial Court against the respondents on issues Nos. 3 and 4 were affirmed.
Issue No. 5 was decided by expressing that the same had not been agitated in appeal and even no cross-objections had been filed. The findings of the Trial Court on issues Nos. 6 and 7 were affirmed by the learned Addl. District Judge and it was held that the suit for possession through pre-emption being benami and the respondents having improved their status through acquisition of landed property in the village, the pre-emptor could not succeed. The findings of the Trial Court on issue No. 9-A in favour of the respondents were set aside and it was held that the order of withdrawal of the earlier suit was perfectly valid and operative. About issue Nov 1-B, it was held that the same was not agitated in appeal. While deciding issue No. 1-C it was held that Muhammad Insha was one of the defendants at the time of institution of suit and in the enquiry conducted by the Trial Court it was concluded that the name of Muhammad Insha was tampered with. The findings on issue No. 1-C were affirmed. Issues Nos. 1-D, 1-E and 1-F were decided by the Trial Court against the respondents which were affirmed by the learned Appellate Court. About the findings of the Trial Court on issue No. 1-G, the learned Addl. District Judge held that due to the attraction of the dictum enunciated in Sardar Ali and others Vs. Muhammad Ali and others (PLD 1988 S.C. 278) the case had to be decided according to the provisions of Pre-emption Act, 1913. It was also held that the suit could proceed. Only on the basis of findings of the Trial Court on issues Nos. 6 and 7 the appeal was dismissed by the learned Addl.. District Judge. Hence this revision petition which has been resisted by the respondents-defendants.
7. I propose to dispose of this revision petition issue-wise as under:- Issue No. 6.
It is in the statements of the D.Ws. That the financial position of Sabir Ali pre-emptor is not good who is being financed by his relatives Khushi Muhammad and Muhammad Yaqub. It is in the written statement that the suit is benami. Both the learned lower Courts have held that the D.Ws.
Have not been cross-examined on the aforesaid fact that the expenses of the suits were being borne by Khushi Muhammad and Muhammad Yaqub and that in this view of the matter, the pre- emptor has admitted the aforesaid fact. Even though the learned counsel for the preemptor took up the stand that since all the D.Ws. Were suggested in the cross-examination that they had given the false statements also covered point of benami and that did not prove that the expenses were borne by the aforesaid Khushi Muhammad and Muhammad Yaqub the reliance was placed on the case law and it was held that the aforesaid fact of benami stood established as the D.Ws. Were not cross-examined before Trial Court. The learned counsel for the petitioner argued that the fact of benami was mentioned in the written statement but it was not incorporated therein that Khushi Muhammad and Muhammad Yaqub were financing the suit for possession through pre-emption.
He added that in this view of the matter the fact of benami cannot be said to have been established on the basis of the reasoning adopted by the lower Courts. He relied on Muhammad Abdullah Vi. Abdullah and others (PLD 1977 AJ&K 69) wherein it has been held that the person acting as benami (not for his on benefit but as agent of a stranger) and for his benefit has no right of pre-emption, but to non-suit the pre-emptor on such count, the evidence must be convincing and such person is not deemed to be acting in the interest of another merely because of his being poor. He also referred to Lai Din Vi. Allah Ditta and others (PLD 1967 Lah. 703), according to which on the basis of the defence of benami, the suit of plaintiff/pre-emptor can fail only if it is established that he is benami, that real owners of property after decree would be other persons and that such suit cannot fail on the ground that the preemptor had been financed by some other persons. On the contrary learned counsel for the respondents laid the emphasis that the D.Ws. Have not been cross-examined on the aforesaid fact that the pre-emptor is being financed by Khushi Muhammad and Muhammad Yaqub and that both the learned lower Courts have rightly decided this issue in favour of the respondents/1, however, agree with the learned counsel for the pre- emptor. The aforesaid rulings relied on by the learned counsel for the petitioner are attracted to the instant dispute in every respect. In my view any defence in a matter revolving around the factual aspects has to be independently proved. Mere narration of the same in the statement of a witness even though not cross- examined on the point would not establish the same. Further an important aspect of the matter which has stolen eminence for the purpose of the disposal of this controversy is that in the written statement it is mentioned that the suit for possession through pre-emption instituted by the petitioner is benami and it is not contended therein that the suit was being financed by Khushi Muhammad and Muhammad Yaqub and that also for their, on interest and benefit. The case-law relied on by both the learned lower Courts is not attracted to the facts of the instant matter which is a defence of specific factual nature and is to be established by the production of the evidence oral or documentary according to the discretion and requirement of the respondent who have failed thereof. The findings of the learned Trial Court on issue No. 6 cannot be approved which are set aside and thus issue No. 6 is decided against the respondents.
ISSUE NO. 7.
This issue pertains to the superior pre-emptive right of the preemptor. Both the learned lower Courts have held that Sabir Ali pre-emptor has failed to establish his superior right of preemption on the ground that he did not adduce the evidence to establish that at the time of the passing of the decree he was holding the status of Khewatdar in the village and that through exchange deed dated 27.4.1981 (copy Exh. D-4), gift-deed dated 27.4.1981 (Exh. D-5) and exchange deed dated 26.4.1981 (Exh. D-4) supported by Mutation No. 52, dated 27*. 10.1983 (Exh. D-25) and Mutation No. 53, dated 27.10.1983 (Exh. D-26) the respondents had improved their status who had also become the Khewatdars in the village. Learned counsel for the petitioner argued that the status of the pre- emptor stands established through Exh. P-5, copy of Jamabandi for the year 1977-78 as well as Exh.
D-7, copy of Jamabandi for the year 1981-82. He added that there is nothing on record to make out that his property was sold by the pre-emptor till the impugned judgment and decree passed by both the learned lower Courts as well as till today. He added that due to the incorporation of Section 21- A of the Punjab Pre-emption Act during the year, 1944 through the Punjab Act No. 1 of 1944 any improvement, otherwise than through an inheritance or succession made in the status of vendee-defendants after the institution of a suit for pre-emption after the institution of a suit for pre-emption shall not affect the rights of the pre-emptor/plaintiff in suit. On the contrary the learned counsel for the respondents relied upon the reasoning adopted by the learned lower Courts and argued that there was no documentary evidence on the record to make out that the preemptor was Khewatdar in the village at the time of impugned judgment and decree by the Trial Court and that during the period of limitation the status of the vendees was improved which fact stands established through the production of Exh. D-5 to Exh. D-7, Exh. D-25 and Exh,D-26. He relied on Thakur Madho Singh and another Vs. Ltd. James R.R. Skinner and another (AIR 1941 Lah. 433) (Full Bench) decided on 17.7.1941 and argued that the vendee can improve his status any time before decree to defeat pre-emptor's right. At the very outset I would express that the ruling relied on by the learned counsel for the respondents AIR 1941 Lahore 433 (Full Bench) is not applicable because the judgment was pronounced before the incorporation of the amended Section 21-A of the Punjab Pre-emption Act, 1913, which was introduced through Punjab Act No. I of 1944. In this regard it would be proper to refer to the ruling published as Jot Ram alias Mula Vs. Molar and others (AIR (32) 1945 Lahore 104) decided on 1.12.1944. A perusal of the last mentioned case-law has made out that Section 21-A in the Punjab Act was inserted through an amendment effected during the year 1944.
A perusal of the said Section 21- A of the Punjab Pre-emption Act has made that nay improvement, otherwise than through inheritance or succession made in the status of the vendees/defendants after the institution of suit for pre-emption shall not affect the rights of the pre- emptor/plaintiff in such suit. The aforesaid exchange deeds and gift-deeds were registered on 27.4.1981 and 26.4.1981 and the mutations were sanctioned on 27.10.1983. The suit was instituted on 1.3.1981, with respect to the sale under preemption effected on 16.6.1980. In view of the aforesaid discussion it can safely be held that the evidence produced by the respondents/defendants has failed to establish that they had improved their status qua the pre-emptor/petitioner before bringing of the suit.
8. With respect to the other distinct findings that on the date of the impugned decree passed by the Trial Court on 25.4.1995, the pre-emptor had no right of pre-emption, suffice it to express that the aforesaid documents Exh. P-1, copy of Jamabandi for the year 1977-78 and Exh. D-7, copy of Jamabandi for the year 1981-82 are in favour of the petitioner. Further there is nothing on record to make out that the property owned by the pre-emptor has been disposed of by him. The evidence in this regard could be produced by the respondents-defendants who have failed thereof and I hold that the reasoning adopted by the Trial Court is simply illegal and devoid of any force. As such I reverse the findings of the learned Trial Court on issue No. 1 and hold that Sabir Ali petitioner/pre- emptor has the superior pre-emptive right.
9. Learned counsel for the respondents laid the emphasis that there are concurrent findings of both the learned lower Courts and that the revision petition in hand is neither maintainable nor merits to be processed with. It would be an error to agree with him. In view of-the aforesaid reasoning and findings on issue Nos. 5 and 7 the concurrent findings of the learned lower Courts stand vitiated as it is a matter of misreading of evidence and mis-application of law resulting in patently unjust decisions. The impugned judgments and decrees passed by the learned lower Courts are illegal and the jurisdiction has been exercised in favour of the respondents/vendees which did not vest in both the learned Presiding Officers. This assertion has failed to impress me.
10. Learned counsel for the respondents argued that the matter about the holding of the enquiry with respect to the interpolation in the entry of the name of Muhammad Insha defendant-vendee has not been proved and expressed that without a copy pf the findings the matter has to be decided against the pre-emptor. He also touched the issues about the withdrawal of the suit, limitation and partial pre-emption. I am afraid that in view of the findings of the lower Courts on the aforesaid issues these assertions need not be analysed and looked into. The crux of the matter is that the findings of the learned 1st Appellate Court on issue Nos. 6 and 7 have been assailed before this Court through the filing of the revision petition under disposal. All the remaining issues have been decided by the said Appellate Court against the respondents-defendants. Even many of the issues were decided by the learned Trial Court against them and no cross-objections were filed.
Hence I hold that to the extent of the aforesaid points and the issues except issues Nos. 6 and 7 the respondents have lost the right of audience by operation of law. Consequently, the respondents cannot agitate the aforesaid points in this revision petition which are ignored.
Relief-
11. In view of the facts that the findings on issues Nos. 6 and 7 have been set aside by this Courts, I have no hold that this revision petition has merits. Hence I accept this revision petition with costs, set aside the impugned judgments and decrees, decree the suit for possession by preemption instituted by the petitioner/pre-emptor against the respondents- defendants and grant the petitioner a decree for possession by pre-emption in consideration for an amount of Rs.5,00,000/- (Rupees Five Lac) with respect to the suit property. In case whole of the pre-emption money has not been deposited by the pre-emptor, he shall do the needful within a period of thirty days from today failing which he shall be liable to be face the legal consequences. In case the pre-emption money in the sum of Rs.5,00,000/- (Rs. Five Lac) has already been deposited the petitioner/pre- emptor obviously need not worry and take any steps thereof.