The present appeal has its genesis in pre-emption litigation, between the parties. Suit for pre- emption filed by respondents was dismissed by the learned Civil Judge on 3-5-1984. However, on appeal, filed by respondents, judgment and decree have been reversed and their suit was allowed.
2. Briefly stated the facts of the case are that respondents filed a suit for pre-emption against the appellants challenging the sale of the suit-land made in their favour vide registered sale-deed, dated 24-6-1974. Right of pre-emption was claimed by the respondents as being owners of the estate. This suit was contested by the appellants, who equally asserted to be the owners of the estate. It may be pertinent to state here that Shah Muhammad appellant No.9 was minor at the time of institution of the suit and was sued through his father namely Shahadat Khan, who was duly appointed as his guardian ad item by the Court.
3. For better understanding of the controversy between the parties, it may be stated that Shah Muhammad and Ghulam Sarwar two out of the four vendees of the sale, claimed ownership of the estate on the basis of another sale made in their favour by virtue of Mutation No. 1905, date 12-6- 1974, Exh.D.l. One Muhammad Ramzan, had alreadv assailed this sale in favour of the two vendees in Civil Suit No.488 of 1975, decided in favour of the pre-emptor on 1-7-1976. He in execution of the decree, against these two vendees, had already obtained possession of such land and mutation to this effect was also sanctioned in favour of Muhammad Ramzan. On account of above decree, in favour of Muhammad Ramzan, Shah Muhammad and 8 Ghulam Sarwar ceased to be owners of the estate and accordingly guardian ad item of Shah Muhammad and Ghulam Sarwar and their counsel made a statement before the trial Court on 17-2-1979, admitting the superior right of pre- emption of the respondents. However, as issues had already been framed in the case on 19-5-1976, therefore, the trial was duly conducted and the learned trial Judge, came to the conclusion that though decree for pre--emption was passed in favour of Muhammad Ramzan, but his application for the execution of the decree, was dismissed as being barred by time. Moreover, Muhammad Ramzan, has withdrawn the pre-emption money from the Court, thus, the decree in favour of Muhammad Ramzan, could not affect the ownership of Shah Muhammad and Ghulam Sarwar, in the estate, to defeat the right of plaintiff-respondents. On appeal, filed by the respondents, this findings of the learned trial Court qua issue of superior right or pre--emption has been reversed by the learned appellate Court. Firstly on the ground that on 17-2-1979 the guardian ad item of Shah Muhammad and counsel for Ghulam Sarwar made a statement admitting the superior right of the pre-emption of the respondents. Besides. As per evidence on the record, decree passed in favour of Muhammad Ramzan was executed: the order of the executing Court, in the said execution is Exh.P.14 which clearly shows that after deposit of the pre-emption money in the said decree, warrant for possession of the land had been duly issued by the learned executing Court and from Exh.P.15, it is further proved that after possession was delivered to Muhammad Ramzan, the execution petition was consigned to the record room as being satisfied. Exh.P.16, report of the Patwari, regarding delivery of possession to Muhammad Ramzan, which was thumb-marked by him, was also relied upon by the appellate Court, in reaching to a conclusion that decree in his favour stood duly executed and satisfied.
4. As regards another application, allegedly filed by Muhammad Ramzan on 14-10-1982, seeking re- execution of his decree, which was dismissed by the Court as being barred by time, learned appellate Court has concluded that these proceedings are forged and fictitious and are objected to defeat the right of pre-emption of the respondent. As mentioned earlier, respondents' suit was allowed. Hence this appeal.
5. Learned counsel for the appellant by relying upon the cases reported as Muhammad Malik v. Haji Muhammad Bashir and others 1994 CLC 2020, has contended that in order to succeed in a pre- emption suit, the pre-emptor is required to establish his right at the time of sale, at the time of institution of the said decree and also when the decree was passed. As on the date of sale and also date of filing the suit, admittedly, Shah Muhammad and Ghulam Sarwar were the owners of the estate on account of the sale made in their favour vide Mutation No. 1905, dated 12-6-1974, therefore, the respondents had no superior right, which could be enforced against the appellants. It is also contended that Shah Muhammad was a minor, though he was sued through his father as a guardian ad item, who made a statement before the Court on 17-2-1999, admitting the pre- emption right of the respondents, but as leave of the Court was not obtained in terms . Of Order XXXII, Rule 7, thus, such admission has no legal effect or consequences. About Ghulam Sarwar, who also conceded to the pre-emption right of the respondents, it is argued that any admission made, which is on wrong assumption of fact, is not binding on the party, making the admission. Because, when admission was made, said vendee was under the impression, that the decree in favour of Muhammad Ramzan, had been executed, but it subsequently transpired, otherwise, when application of Muhammad Ramzan seeking execution of the decree was dismissed as being barred by time, and also on account of his withdrawal of pre-emption money, from the Court.
6. On the other hand, learned counsel for the respondents has drawn my attention to the provisions of section 28-A of the Pre-emption Act, 1913 and has argued that if a vendee in order to defeat the right of the pre-emptor, bases his claim on a transaction, which by itself is liable to be defeated by exercising of right of pre-emption, thus, until and unless the right becomes indefeasible, vendees cannot be allowed to set up a claim on that basis. In this behalf, he has relied on the cases reported as Mawas Khan v. Subedar Meher Dill PLD 1985 SC 215, Muhammad Mumtaz v.
Muhammad Shafi 1992 SCMR 1814, 1925 Punjab Record 140 and 1930ILR 128.
7. I have considered the arguments of both the sides and find that the judgments cited by learned counsel for the respondent, are squarely applicable to the case in hand. Shah Muhammad and Ghulam Sarwar, their vendees weile not claiming any other independent status in the estate as owners thereof, but on the basis of sale which were subject of pre-emption by Muhammad Ramzan and therefore, their right to non-suit the pre-emptor was dependent on the outcome of the said suit. Because their status was not indefeasible; till such time, the suit of Muhammad Ramzan had been finally dismissed, rather in this case, before the suit could be decided by the trial ---Court, admittedly the decree was passed in favour of Muhammad Ramzan, `' which was duly executed resultantly, these two vendees had lost their status of ownership in the estate and could not resist the right of the respondents on the basis of sale mentioned above. Obviously, being party to that suit, they were duly aware of the result, as also the execution and it is in consequence thereto, the guardian ad item of Shah Muhammad, and Ghulam Sarwar made a statement before the Court on 17-2-1979, admitting the right of the IC respondents to pre-empt the suit-land.
8. I fully endorse the findings of the learned appellate Court that once the decree passed in favour of Muhammad Ramzan, which was fully executed and satisfied, the possession was delivered to him, the execution petition was consigned to the record room. The subsequent application allegedly filed by Muhammad Ramzan in the year 1982 and the allegeu withdrawal of money by him on the face of it seems to be proceeding, which can be safely termed as fictitious and ill- motivated, with the obvious object to defeat the right of, respondents, therefore, these documents have been rightly discarded by the appellate Court.
9. For the argument that agreement by guardian ad item cannot be given effect until leave of the Court has been obtained within the purview of Order XXXII, Rule 7, suffice it to say that guardian ad item in the present case was no person other than the father of Shah Muhammad, who was his legal and natural guardian and that undoubtedly made a correct statement because Shah Muhammad has lost his status as co-owner in the estate, on account of the decree for pre- emption passed in favour of Muhammad Ramzan. This statement has not been shown to be against the interest of the minor. Moreover, as held in PLD 1968 Lah. 1218, abandonment of an issue on part of next friend or guardian at item in course of suit does not amount to compromise and leave of the Court was not necessary. Assuming that leave of the Court was required, but has not been obtained and therefore, there was no conceding statement on behalf of Shah Muhammad (minor) but the fact remains that Ghulam Sarwar has also made similar statement. In the backdrop of the facts narrated above, it is not satisfactorily shown that he too has made a statement under any wrong assumption of the true factual position. He being one of the vendees who was no more a co-owner of the estate on account of loosing his status in the suit field by Muhammad Ramzan, thus, the other co-vendees would also sink with him, as he was altogether stranger to the transaction of sale subject-matter of the instant litigation.
The upshot of above discussion is, that there is no legal or factual infirmity in the judgment and decree of the learned Court in appeal, calling for interference by this Court. This appeal thus, has no merits and is hereby dismissed.