A suit for pre-emption was filed by one Muhammad, predecessor-in---interest of the respondents with regard to sale of land measuring 58 Kanals situated in Mouza Thatha Mubarik Shah, Tehsil Chiniot, District Jhang, purchased by the appellants from Ahmed and Bhakasha vide a Mutation No. 292, dated 31-1-1972.
2. The right of pre-emption claimed by the respondents-plaintiffs was being collaterals, of the vendor. It was further claimed that a sum of Rs. 28,000 has been shown to be the sale consideration, whereas only Rs. 15,000 were actually paid.
3. This suit was contested by the present appellants/defendants and out of pleadings of the parties; seven issues were framed, including the superior rights of pre-emption, as also regarding the consideration actually paid. Parties led their evidence and the Trial Court was pleased to decree the suit vide judgment and decree dated 18-4-1977, by giving findings on issues Nos. l to 4 in favour of the respondents/plaintiffs, whereas on issue No. 5, it was found that a sum of Rs. 28,000, was inclusive of the mortgage money.
4. Against the above, an appeal was filed by the appellant which was dismissed by the Appellate Court vide judgment and decree dated 21-2-1978. It is stated in the judgment of the Appellate Court that the appellants have conceded at bar the findings of the Court below on other issues except Issue No. 5.
5. The Appellate Court while giving findings on Issue No. 5, modified the judgment and decree of the Trial Court by holding that the alleged mortgage was a sham transaction and that an amount of Rs. 8,000 was excluded from the sale consideration of Rs. 28,000. The appeal of the appellant was dismissed.
6. Learned counsel for the appellants today, has vehemently argued that the findings of both the Court on Issue No. 5 are erroneous. However, learned counsel for the respondent has candidly conceded that he is prepared to pay a sum of Rs. 8,000 as well. Second point raised by the learned counsel for the appellant is that the suit of the respondents was barred under section 5 of the Punjab Pre-emption Act, 1913, as no right of pre-emption exists in respect of the sale or the fore- closure, or a right to redeem a mortgaged property.
7. On the other hand, learned counsel for the respondents has pointed out that section 5 only base the transactions regarding shop, serai or katra, dharmasala; mosque or other similar building.
Admittedly, the suit property is not of one of the categories mentioned therein and is an agricultural land. Even otherwise, this point has not been raised either before the Trial Court or the Appellate Court or in second appeal. I accept the contention of the learned counsel for the respondents that the provisions of section 5 are not applicable to the facts and circumstances of the present case.
8. In view of the above, the judgment and decree of the Court below are modified to the extent that the respondent should deposit a sum of Rs. 8,000 with the Trial Court within a period of one month from today. This appeal with the above modification of the judgment and decree is dismissed.