' The suit property comprising of a house was purchased by the appellants vide registered sale-deed, dated 30- 5-1972 for a consideration of Rs,5,000. Babu Khan, deceased plaintiff filed a suit on 29-5-1973 for possession of the suit property by preemption. His case was that he was an owner in the estate whereas the appellants were not.
' He also alleged that the house has in fact been sold for Rs,3,850. The appellants in their written statement denied the superior right of pre-emption of the said deceased plaintiff and also stated that they have effected improvements to the tune of Rs,2,000. Issues were framed. Evidence of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree, dated 14-10-1980 subject to deposit of Rs,7,000 (Rs,5,000 as price and Rs,2,000 as cost of improvements). A first appeal filed by the appellants was dismissed by the learned District Judge, Gujranwala on 17-7-1984.
2. Learned counsel contends that out of appellants, appellants Nos.2 to 4 acquired land on the death of their father Ghulam Rasool during the pendency of the suit and thus became owners in the estate. The father of appellant No,1 also died somewhere during the pendency of the first appeal and he acquired land by inheritance through Mutation No,299 attested on 7-1-1984 and as such all the appellants had become owners in the estate and the rights of parties being equal, the suit could not succeed. No one has turned up for the respondents. They are represented by Mr. Qadeer Ahmad Rana, Advocate whose name stands duly listed in the cause list for today but he has not turned up despite several calls. The respondents are accordingly proceeded against ex parte.
3. I have gone through the record. So far as the appellants Nos.2 to 4 are concerned, it is even the findings of the learned trial Court under Issue No,10 that they have become owners in the estate by inheritance during the pendency of the suit. It was, however, held by the learned trial Court that since the appellant No,1 had not acquired any such qualification, even the remaining appellants cannot resist the suit. So far as appellant No,1 is concerned, learned counsel has placed on record a certified copy of Mutation No,299 attested on 7-1-1984, whereby the land owned by Muhammad Khan had devolved upon his children including Muhammad Alam, appellant No,
1. He died on 16-12-1982 and the Patwari was informed on 16-3-1983 when he entered the mutation. The first appeal had been decided on 17-7-1984.
4. The present R.S.A. Raises two important questions; first as to whether the doctrine of sinker would apply where some of the vendees come to acquire right by operation of law or by inheritance during the pendency of a lis and the second if the doctrine is applicable then what as the effect of death of the father of appellant No,1 as well and his inheriting the land, on the suit.
5. The principle underlying the said doctrine is that where a person joins with him in a sale another person who is not possessed of a right superior or equal to that of the preemptor, then notwithstanding the fact that the said person does possess such a right, he would sink with co-vendee and unless it is pleaded and proved that the sale was divisible, he would not be able to even defend the sale to his own extent.
6. To my mind where a vendee joins a stranger with him at the very inception of the sale, it constitutes a deliberate or a voluntary act on his part but not so when all the vendees, as in the present case, are not possessed of a right superior or equal to that of a pre-emptor and some of them come to acquire such a right by operations of law or inheritance during the pendency of the suit. The reason being that no voluntary act is involved in this and anybody so acquiring the right can never be an accused of joining a stranger with him in the sale. Learned counsel has relied upon the case of Gulzar and others v. Muhammad Anwar and others (1991 SCMR 112) and the said judgment of the Supreme Court of Pakistan does support the opinion expressed by me above. I deem it proper to state here the facts of the said case. Two vendees purchased the land jointly. Suit filed by the pre-emptors claiming right on the basis of ownership in the estate was decreed and the decree was affirmed in the first appeal. The vendees filed R.S.A. During the course of hearing of the R.S.A. This Court took notice of the fact that father of one of the vendees had died and resultantly he had acquired land in the estate.
This Court granted relief and the suit to the extent of his share in the purchase was dismissed. The preemptors sought leave to appeal which was refused. On the analogy of the said judgment of this Court upheld by the apex Court in the said case of Gulzar and others, I am of the opinion that the learned trial Court ought to have dismissed the suit of the respondents to the extent of appellants Nos.2 to 4 when admittedly they had acquired an equal right to that of the respondents. So far as appellant No,1 is concerned, his father also died while the first appeal was pending and he also came to acquire land and thus a right equal to that of the respondents. All the four vendees having acquired equal right of inheritance, the suit of the respondents was bound to fail. I, therefore, allow the R.S.A. Judgments and decrees passed by both the learned Courts below are set aside and the suit filed by the respondents is dismissed leaving the parties to bear their own costs.