' Appellants Allah Wadhaya and others filed a suit to pre-empt the sale of land measuring 146 Kanals, 3 Marlas fully described in the head note of the plaint on the ground of being owner of the estate. The ostensible sale price was Rs,1,56,000 only. The respondents contested the suit. It was contended that the appellants/plaintiffs did not have any superior right of pre-emption qua the respondents; that the appellants/plaintiffs had waived their right of pre-emption if any and that the respondents/vendees had in acknowledgement of the superior right of pre-emption of Lal Din son of Nabi Bux had transferred the subject land in his favour through registered sale-deed dated 20-6-1977.
2. Out of pleadings of the parties, following issues were framed:- ' ISSUES
(1) Whether the plaintiffs' possess superior right of pre-emption in respect of land in dispute against the original vendee/defendant No,l?OPP
(2) Whether the plaintiffs are estopped by their act and conduct to bring the present suit? OPD (2-A) Whether defendant No,5 has purchased the suit-land in lieu of his superior right of pre- emption within the period of limitation? OPD
(3) Whether Rasool Bux vendee/ defendant No, I has collusively and fictitiously transferred the land in dispute to Lal Din son of Nabi Bux defendant No,5 and as such said sale does not effect the pre- emptive right of plaintiff? OPP
(4) If Issue No,3 is not proved, whether the plaintiffs possess superior right of pre-emption against Lal Din son of Nabi Bux the subsequent vendee/defendant No,5? OPD
(5) Whether the vendee/defendant No,1 has spent Rs,8,580 over purchase of suit-land in excess sale price, if so, to what effect? OPD
(6) Whether the suit of the plaintiff is not properly valued for the purposes of court-fee and that extention of time for making good the court-fee deficiency was obtained by plaintiffs on misrepresentation of fact, if so, to what effect? OPD
(7) Whether a sum of Rs,1,56,000 was fixed in good faith of actually paid as sale price of the suit- land? OPD
(8) If Issue No,7 is not proved, as such, what was the market value of the suit land at the time of suit.? 0 Parties.
(9) Relief.
3. The learned trial Court after recording evidence produced before it held that Allah Wadahya plaintiff had a superior right of pre-emption both against the original vendee Rasool Bux and the subsequent vendee Lal Din. The sale price was determined to be Rs,1,36,000 as against Rs,1,56,000.
Consequently, vide judgment and decree dated 9-2-1981 the suit of the appellants/plaintiffs was decreed for a sum of Rs,1,36,000 as pre-emption money. Aggrieved of the said judgment and decree, an appeal was preferred by Rasool and others in which, the findings of the trial Court were mainly challenged on Issues Nos.1, 7 and 8. The case set up by the vendee/respondent Rasool Bux was that he had also purchased 4 Marlas of land through an unregistered sale-deed about 21 days prior to the sale under pre-emption. The contention of the respondents, while denying the superior right of pre-emption of the appellants is that as the status of both the preemptor and the vendee is at par both being owners in the estate, the suit of the preemptor must fail. He has further contended that in acknowledgement of the superior right of pre-emption of Lal Din son of Nabi Bux, he had further transferred by sale the subject land through registered sale-deed dated 20-6-1977.
4. The 'first contention of the respondents of having become co-owners in the estate found favour with the learned First Appellate Court. However, the learned Appellate Court did not agree with the respondents that the registered sale-deed dated 20-6-1976 would confer any right upon the subsequent vendee as the same was executed after the expiry of period of limitation. Agreeing with the respondents that plaintiffs did not have a superior right of pre-emption qua Rasool Bux, the appeal was accepted and the judgment and decree in favour of the appellant/plaintiff passed by the trial Court was set aside. The learned counsel appearing A in support of the second appeal is challenging the judgment and decree dated 9-1-1988 of the Lower Appellate Court on the ground that the respondents have not been able to prove the purchase of 4 Marlas of land and that the documents Exh.D-3 and Exh.D-4 evidencing such sale were forged documents. He further submitted that the respondents have failed to prove their possession over 4 Marlas of land alleged to have been purchased by them. No mutation or Dakhil Kharige has been sanctioned or attested in his favour. The absence of any entry recorded in the Roznamcha Waqiati or any entry in the Khasra Gardawari also negated the allegation of assuring possession by the respondents. The learned counsel for the appellants further stated that even if it is assumed for sake of argument that a 4 Marlas piece of land was purchased by the respondents, it would still not defeat right of pre-emption of the appellant who is admittedly a co-owner of the estate. Elaborating his submissions, he stated that according to Exh.D-3 a Salmi plot was alleged to have been sold and the vendor Khan Muhammad had deposed that Rasool Bux had constructed a Hut over it.
According to the learned counsel the respondents cannot be treated as the owners of the estate.
5. On the other hand, the learned counsel appearing for the respondents supported the judgment of the Lower Appellate Court and submitted that the purchase of 4 Marlas of land prior to the sale subject-matter of the pre-emption suit had placed the respondents at par with the preemptor and that in such circumstances, the pre-emptor must fail. Supporting his arguments, the learned counsel for the respondents stated that there was cogent evidence on the record to support the alienation of 4 Marlas of land in favour of the respondents.
6. Arguments heard and record perused.
7. The sole question that would fall for determination in this Regular Second Appeal is the effect of the alleged purchase of 4 Marlas by the respondents in the village prior to the sale which is the subject-!Natter of the pre-emption suit. It is an admitted position between the parties that the appellants are the owners of the agricultural estate in which the subject land is situated. According to the statement of D.W.4 Khan Muhammad who is the vendor of Rasogl Bux, the plot sold by him to Rasool Bux was Sakni (as per Exh.D-3) upon which the respondent Rasool Bux has constructed a Hut. Through this evidence it transpires that even if respondent Rasool Bux has been able to prove the purchase of 4 Marlas of land, the same being purchased for Sakni purpose upon which a Hut has also been constructed, it would not confer the right of being owner of the estate upon the respondent Rasool Bux.
8. The words "owner of the estate" employed in section 15(c) thirdly of the Punjab Pre-emption Act, 1913 means an owner of agricultural land. The distinction between the owner of the estate and "owner in the estate" has been enunciated by the Supreme Court in Salehon Muhammad and another v. Shera and others 1977 SCM R 297. According to the said dictum owner of die estate is not synonymous with the words "owner in the estate". The respondents who claimed to have purchased 4 Marlas of land for Sakni purpose upon which he has also built a but could at best be described as "owner in the estate". As such the respondents shall not have any right of pre emption as envisaged in section 15(c) thirdly of the Punjab Pre-emption Act, 1913.
9. In support of this view the learned counsel for the appellants has referred to Shah Muhammad v.
Mst. Pairi and others AIR 1936 Lahore 202; Mst. Sardar Begum and others v. Muhammad Ilyas and others 1983 CLC 1570 and Rahim Bux v. Waheed Bux PLD 1979 Lah.
544. In the case of Mst. Sardar Begum and others, (supra), relying upon the case of 'Salehon Muhammad' (supra) and Shah Muhammad v. Mst. Pairi (supra), it was reiterated that a vendee alleging to have purchased 3 Marlas of land which was non-agricultural did not become owner of estate. Similar view was taken, in the case of 'Rahim Bux' (supra).
10. It is thus, clear that the expression "owner of the estate" used in section 15(c) thirdly of the Punjab Pre-emption Act, 1913 imported ownership of agricultural land only and as soon as the area of land was brought converted into a building site, it ceased to be part of the estate and its owner cannot be termed as owner of the estate. The appellants/pre-emptors who were admittedly owner of the agricultural land qualified under section 15(c) thirdly of the Punjab Preemption Act as against the respondent Rasool Bux. The learned counsel for the appellants further argued that the respondents Rasool Bux had even failed to prove the transfer of possession in his favour. This argument can not bear scrutiny. Once it is found that 4 Marlas of land was sold of Sakni purchased upon which admittedly a Hut has been constructed, this submission shall lose its efficacy.
11. The upshot of the above discussion is that the respondents/vendees have failed to prove that they were owners of the estate as per section 15(c) thirdly of the Punjab Pre- emption Act, 1913. The right of pre-emption of the appellants as owners of the estate has been established and admitted, the sale consideration of Rs,1,56,000 has been established by the learned First Appellate Court which has not been challenged. Resultantly this Regular Second Appeal is allowed, the judgment and decree dated 9-1-1988 of the learned Lower Appellate Court is set aside in as far as it relates to the superior right of pre-emption and that of the trial Court dated 9-2-1981 is upheld subject to the payment of sale price of Rs, I ,56,000 minus Zar-e-Panjum. Parties to bear their own costs.
Second .