This judgment will cover R. S. As. 1010 and 1011 of 1979 as both of them are between the same parties and are based on common questions of law and facts.
2. This appeal is directed against the judgment and decree of Additional District Judge Rawalpindi, dated 3-7-1979 whereby he reversed the judgment of the trial Court, dated 23-4-1976.
3. Brief facts of the case are that Muhammad Anwar Khan respondent purchased land 1/2 share of Khasra No.683/1/ti equal to 3 Kanals, 3 Marlas, and 3/8 share of Khasra Nos.837 and 644, equal to 6 Kanals, 7 Marlas, 1/64 share of Khasra No.1760/250/25i, equal to 3 Marlas, 5/16 share of Khata No.512, Khatuni No.92 d 92b, equal to 19 Marlas, and Khasra No.661, Khatuni No.1341 with share of Shan-flat according to Register Haqdaran Zamin for the year 1967-68 of village Osia Tehsil Murree District Rawalpindi through a registered sale-deed, dated 14-4-1978 from one Muhammad Azam son of Meer Ahmed for a consideration of Rs.14,000. Abdul Khaliq appellant in R.S.A. No.1011 of 1979 pre- empted the sale on the ground of being collateral of vendor Muhammad Azam claiming that the land has been sold for Rs.2,000 but to defeat his 'superior right of pre--emption fictitious amount of Rs.14,000 is mentioned as the sale price.
4. Mst. Nasima Khatoon daughter of vendor filed another pre-emption suit against this sale contending that she is daughter of the vendor and has a preferential right of pre-emption. Sale took place for a sum of Rs.10,000 and Rs.14,000 has been fictitiously shown as sale price.
5. Muhammad Anwar vendee resisted both the suits denied their superior rights of pre-emption. He pleaded in his written statement that a sum of Rs.14,000 was actual sale price of the land in dispute. He made improvement worth Rs.3,000 on the suit-land and further contended that Mst.
Nasima Khatoon daughter of the vendor has filed suit at the instance of her father and as such was not maintainable. Abdul Khaliq appellant also. Resisted the suit of Mst. Nasima Khatoon and claims that the suit property was sold for Rs.2,000 which was its actual market price also. He further contended that Mst. Nasima Khatoon has filed the suit not for her own benefit but at the instance of vendee.
6. Both the suits were consolidated by the trial Court. On divergent pleadings of the parties issues were framed, evidence recorded and after hearing the learned counsel for the parties suit of Mst.
Nasima Khatoon being collusive was dismissed and that of Abdul Khaliq appellant was decreed on payment of Rs.14,000 vide decree, dated 23rd of April, 1976. Haji Muhammad Anwar Khan vendee as well as Mst. Nasima Khatoon challenged the. Judgment of the trial Court in appeal. Learned Additional District Judge through impugned judgment accepted the appeal of Mst. Nasima Khatoon, reversed the judgment of trial Court and decreed her suit on payment of Rs.14,000 alongwith Rs.3,000 as amount of improvement through impugned judgment, dated 3rd July, 1979.
Appeal of Muhammad Anwar vendee was dismissed, suit of Abdul Khaliq respondent was also dismissed.
7. Abdul Khaliq has instituted both these appeals against the impugned judgment of learned Additional District Judge.
8. Hafiz S.A. Rehman learned counsel for the appellant contends that the suit filed by Mst. Nasima Khatoon was collusive which is apparent from her statement recorded in the trial Court. The trial Court on the basis of her statement dismissed her suit and decreed that of the appellant holding that she has instituted the suit for Benefit of vendee and findings of the trial Court were illegally reversed by First Appellate Court. He relied upon Ghulam Qadir v. Mst. Chattal 1983 CLC 2572 in support of his contention that her statement itself was sufficient to presume that the suit was collusive, therefore, liable to be dismissed and the appellant is entitled to a decree for possession through pre-emption.
9. Syed Qalab-i-Hassan learned counsel for the respondent has supported the impugned judgment and relied upon Mst. Shehnaz v. Akhlaq Khan 1996 MLD 1060. Altaf Hussain v. Abdul Majid 1991 SCMR 2523, Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Muhammad Amin v.
Maqbool Ahmed 1993 SCMR 498.
10. Heard. Record Perused. Mst. Nasima Khatoon respondent appeared as D. W.1 in the trial Court and deposed that Muhammad Azam vendor was her father and disputed land was sold for Rs.10,000 she instituted suit at the instance of her husband, those who purchased the land got this suit instituted. Muhammad Anwaar got this suit instituted. Muhammad Anwaar got this suit filed by her. In cross-examination she stated that pre-emption money was deposited. She did not deposit the amount herself, it was got deposited through those who got the suit instituted. She was not present at the time of registration of sale, her father told her that Rs.10,000 were paid. I am a Pardanashin lady, her husband performs duties on her behalf, she wants disputed land for herself.
She denied the suggestion that after getting the land she will return it to the vendee. She has instituted the suit for the purpose of getting the land herself no one has forced her to institute the suit.
12. This is the entire statement of D.W.1/Plaintiff in connected suit. In examination-in-chief she stated that the suit was instituted by her at the instance of vendee but during Court- questions she clarified the position that she wants the land for herself, no one has forced her for filing of the suit and she is a Pardanashin lady. The. Contention of the appellant entirely depends upon inference to be drawn from her statement. Claim of the appellant that suit instituted by her was, collusive and for the benefits of vendee could have carried weight if she would not have been a Pardanashin lady, illiterate, simple villager. In order to appreciate her evidence, social set-up, the status of the witness and her village background will have to be kept in mind. Her deposition that she instituted the suit at the instance of her husband conveys that a decision for filing a suit was made by her husband. In reply to the Court question she has categorically stated that the suit was instituted to get the land for herself. The suggestion of the appellant that she instituted suit for benefits of vendee was clearly denied by her. In order to prove collusion of the pre-emptor with the vendee strict and cogent evidence is necessary. In the instant case except the admission of D.W.1 there is no relevant evidence on the record to prove collusion of Mst. Nasima Khatoon with the vendee. In the case of Ghulam Qadir v. Mst. Chattal 1983 CLC 2572 referred by the appellant's counsel it was held that the plaintiff in a suit for pre-emption is entitled to enter into agreement with another person as to how he will dispose of land if gets decree. Plaintiff can raise funds for pursuance of his case and cannot be asked as to wherefrom have been procured. Mst. Chattal respondent collateral of the vendor instituted the suit before the trial Court to pre-empt the sale of land in question in favour of the petitioner. In the written statement petitioner has admitted the superior pre-emptive right of the respondent. His main allegation against the respondent was that the suit has been instituted by her in collusion with once Jan Muhammad, whose similar suit filed against the petitioner had already been dismissed and the present suit filed by the respondent was for his benefits, .Who was financing the respondent for prosecution of the same, trial Court decreed the suit of the respondent disbelieving the evidence of the petitioner, regarding allegation of being a collusive suit, and his appeal failed. Thereafter, his revision was dismissed by, Mr. Justice Zaki-ud- Din Paul the then Judge of this Court observing that unless it is found that the respondent is a Benami, or fictitious person her suit. Cannot be thrown out simply on the ground that she has been financed by Jan Muhammad or she has entered into an agreement with him for the sale of the property after the award of decree in her favour. Learned Judge in para. 8 observed as under:--- "According to law a plaintiff in a pre-emption suit can enter into any agreement with another person as. To how he will dispose of the land if he gets the decree He can raise funds for the prosecution of his case and cannot be asked as to wherefrom the funds have been procured.
Reliance in this respect can be placed upon Sheru v. Jawahir Singh 58 PR 1912 and Muhammad Bux v. Hassan Bakhsh and others 7 PR 1912.
The facts of the former case are that Sharu's suit was filed after Jawahir Singh had instituted his suit, the 1/5th pre-emption money deposited in Court was advanced by the vendees, the money which was paid into Court in compliance with the decree passed in favour of the pre-emptor was advanced on a mortgage of the land in suit by the father and nephew of the vendee, the mortgage was a fixed period of ten years and the conditions of the mortgage were such as to make it redemption difficult after the expiry of the period fixed by the deed. It was held in-that case that above circumstances as brought out on record were not sufficient to prove that the suit was brought by a Benami pre-empt. It was held in the latter case that:---- ------------------.a man who has a right to pre-empt has merely to produce the money just as any other purchaser, he can no more be asked what are you going to do with the land or wherefrom did you raise the money. The pre-emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he is left to do is to produce the money within the time fixed by the Court. If in any such case the pre-emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter it may be open to another pre-emptor to challenge the second transfer and to claim pre-emption in respect thereof ... .This right is, in our opinion, a sufficient safeguard against Benami transaction of the kind.
Similar observation was given y this Court in the case of Lal Din v. Allah Ditta PLD 1967 Lah. 703 holding that the suit of the plaintiff can fail only if it is established that it is Benani and real owner of the property after decree would be other person. Suit cannot fail on ground that pre-emptor has been financed by other person or that he has entered into same agreement to transfer property subsequently in favour of some other person. In Mehr Kamir v. Wali Muhammad and 5 others PLD 1973 Lah. 137 a Division Bench of this Court relied upon Sheru v. Jawahir Singh 58 P.R. 1912 as under:- -- "We have no doubt that it is the vendee, who has instigated Sheru to bring this suit and who is supplying him with the necessary funds to prosecute it. But it by no means follows that Sheru is Benami pre--emptor simply because he was instigated by the vendee to pre-empt the land and he would not have been able to bring his suit without.
It was further held "bearing the above principle in minds and having bestowed our careful consideration upon the facts we find that the grounds upon which lower appellate Court has held the suit to be collusive are without substance and do not prove that the appellant pre-emeptor's suit is for the benefit of vendee. The respondent having failed to establish by strictest evidence that the appellant's object was really to secure the land for the vendees, we in disagreement with the lower appellant Court hold that collusion has not been proved. Since the appellant admittedly has a superior right of pre-emption as compared with the respondent rival pre-emptor, as also the vendees we set aside the judgment and decree of the lower appellant Court restored that of the trial Court". Yet in another judgment Muhammad Shafi v. Sardar Khan PLD 1974 Lah. 235 it was observed that "no evidence led to prove who paid the pre-emption amount, no effort made to get relevant receipt produced in Court regarding payment of pre-emption money, no direct evidence led to prove collusion the plea of collusion of plaintiff with the vendee was disbelieved".
13. In the case of Altaf Hussain v. Abdul Majid 1991 SCMR 2523 it was observed that it is not always necessary that a son when filing a suit for pre-emption would be doing either in collusion with the father/vendor or for the benefit of a person other than the pre-emptor has depended upon.
Circumstances of each case. In Jam Pari v. Muhammad Abdullah 1992 SCMR 786 in para. 5 the Court observed as under: "It is strenuously argued that the respondent is the son of the vendor and both of them resided under the same roof and were in league with one another. According to the appellant's learned counsel, the conduct of the respondent clearly smacked of mala fide which fully called for dismissal of the suit on the ground of waiver. It is to be recalled that the respondent's explanation as to the abandonment of his residence with his father after differences had arisen between the two, was not accepted by the learned District Judge, for the reason that in his statement he failed to particularize his residence in the village elsewhere. It appears to us that the learned District Judge proceeded wholly on incorrect basis." and the judgment of the High Court holding failure to prove waiver was upheld. In Muhammad Amin. v. Maqbool Ahmed (1993 SCMR 498) it was held "if pre-emptor is minor or poor and litigation- is financed by somebody else that itself would not mean that pre-emptor is acting in interest of another. If son of vendor filed suit for pre-emption, it does not mean that he had done so in collusion with his father or for the benefit of some other person unless it is so proved by strong evidence".
14. In the light of judgments cited above, statement of D.W.1 keeping in view her status, illiterate Pardahnashin lady of a village of Murree, is not' sufficient to hold that it was a collusive suit. She clarified in Court questions that she wants the land for herself and has not instituted suit for benefit of vendee, she was not forced by any one to institute the suit. There is no strict evidence showing collusion between the pre-emptor and the vendee therefore, the learned Lower Appellate Court has properly appreciated the law declared by the superior Court to drawing inference of no collusion between Mst. Nasima Khatoon with the vendee, Appellant failed to prove collusion of respondent inter se. The appeals have no merit. And are dismissed with no order as to costs.