' Suit land measuring 250 Kanals was purchased by the vendee/respondents from one Ghulam Muhammad vide Mutation No,29 attested on 5-5-1970 for a consideration of Rs,31,285. The petitioner claiming to be an owner of the estate filed a suit on 5-5-1971 for possession of the suit land by pre-emption. This suit was decreed ex parte on 15-12-1973. The decree was later set aside on 22-10-1975. The vendee/respondents in their written statement took the plea that the sale in their favour stands annulled by means of decree, dated 12-1-1978 and as such the suit is not competent. Other allegations in the plaint were denied. They also insisted that the land had been in fact purchased for a consideration of Rs,93,843.75. The remaining respondents were also added later on. Learned trial Court framed issues relevant being Issues Nos.1 and 3 which were reproduced hereunder:--
(1) Whether the sale of land in suit is not pre-emptable in view of decree passed by Civil Court Jauharabad on 12-1-1978 in the suit titled with ' Mst. Mehran Khatoon etc. v. Maqsood Bibi etc.? OPD
(2) Whether the plaintiff is estopped by his own act and conduct to bring the suit?
' Evidence of the parties was recorded. The learned trial Court found that the petitioner has a superior right of pre-emption as the petitioner is an owner of the estate while all the vendees are not. It was also found that the sale had been made for a consideration of Rs,31,285. The sale was also found to be indivisible. The said Issue No,3 was answered in favour of the petitioner while the said Issue No, I was answered in favour of the respondents. As a result of the said finding on Issue No,1 the suit was dismissed vide judgment and decree, dated 2-3-1982. A first appeal filed by the petitioner was heard by Mr. Lutaf Ali Malik, District Judge, Sargodha. The learned District Judge not only upheld the findings of the learned trial Court on Issue No,1 but fortified the same by recording findings adverse to the petitioner under the said Issue No,3 as well. The appeal was dismissed on 20-3-1985.
2. Learned counsel for the respondents has raised a preliminary objection that since the suit had been dismissed and so was the case with the appeal, a decree cannot be passed even if the civil revision be allowed. Learned counsel for the petitioner meets the said objection relying on the case of Abaidur-Rehman and others v. Mahmand and others 1999 SCMR 201 to urge that even if an ex parte decree has been passed before the target date i.e, 31-7-1986 as fixed in Said Kamal Shah's case PLD 1986 SC 360. It was protected and the pre-emptor was not debarred to have the case adjudicated in accordance with law applicable before the said date. Learned counsel for the respondents are unable to meet the said argument. I, therefore, hold. That the civil revision is competent and the suit is to be adjudicated in terms of the old law.
3. Learned counsel for the petitioner argues that it is a matter of record that the decree was collusive and had been obtained during the pendency of the suit and as such was of no legal effect on the rights of the petitioner. Learned counsel for the respondents, on the other hand, have tried to argue that the decree could not be set aside in collateral proceedings and since the petitioner had not got the decree set aside it will be binding on him.
4. I have gone through 413 record copies whereof are appended with this civil revision, with the assistance of the learned counsel for the parties. Copy of the decree dated 12-1-1978 is available on record as Exh.D.12. I have examined the same. I find that the respondents/L.Rs, of Ghulam Muhammad filed a suit against the vendee/ respondents, plaint whereof was presented in Court on 1-10-1977. The relief sought was that the sale was without consideration and as such be declared void. The vendee/ respondents filed a consenting written statement and the suit was decreed on the basis of the said consenting written statement on 2-1-1978. I find that the pleadings in the said case have not been filed and it is but apparent on the record that the petitioner was not a party to the said suit.
5. Mutation No, 29 of sale, dated 5-5-1970 is on record as Exh.P.15. According to this document Ghulam Muhammad had sold the land to the vendee/ respondents for a consideration of Rs,31,285 and had admitted the receipt of money and delivery of possession. A bare look on the evidence led by the respondents in the case would also show that they were in cahoots with each other. The vendee/respondents put in Muhammad Sher, D.W.1 who stated that Ghulam Muhammad wanted to sell the land and this fact was told to him by the petitioner; that the terms of the sale were settled in presence of the petitioner at Rs,3,000 per acre; that Ghulam Muhammad was not present at the time of negotiations; that he had received the price from the vendee/respondents and that the mutation was got entered by the petitioner and it was attested 4/5 days thereafter. Now neither this witness has stated that Ghulam Muhammad had not appeared before the Tehsildar and had not made a statement before him as recorded in the mutation nor has it been so suggested to him by the L.Rs, of said Ghulam Muhammad who cross-examined him separately. On the other hand, I find that the said witness had forgotten to state as to why a lesser price was recorded in the mutation. It is the case of vendee/respondents that the land was sold for about Rs,93,000 and the learned counsel for the said respondents tried to get the lacuna filled up by putting a question, the reply whereof was that it was the petitioner who got the lesser amount recorded. D.W.3 is Sher Baz one of the vendee/respondents and he has tried to state that the land was sold by the said D.W.1 and not Ghulam Muhammad, D.W.6 is Muhammad Aslam, the attorney of the said L.Rs, of the vendor. He has stated that Ghulam Muhammad had not sold the land and that D.W.1 had sold it without reference to him. I am afraid nothing turns on this statement as the said witness had not been given any suggestion when he was being cross-examined on behalf of the said L. Rs,
6. It is by now well-settled that such a decree passed during the pendency of the suit filed by a pre-emptor can be declared by a Cutoff trying the said suit to be ineffective qua In the suit for pre- emption. A reference be made to the case of Falak Sher v. Muhammad Rashid and another PLD 1982. Lah. 426, a D.B. Judgment in the case of Ghulam Tayyib v. Shahro Khan and others PLD 1962 (W.P.) B.J. 1, Munir Hussain v. Muhammad Shafi and another 1981 CLC 1712 and Kamir and 2 others v.
Mst. Shamim and 4 others 1994 MLD 2139 I, therefore, find that both the learned Courts below have proceeded to act in exercise of their respective jurisdiction with material irregularity while answering Issue No,1 in favour of the respondents. The finding is accordingly reversed. Coming to the said Issue No,3 I find that the learned District Judge has found on the basis of the testimony of D.W.1 to' D.W.3 that the petitioner was present at the time of sale and on the said basis he has proceeded to non-suit him holding that he is estopped to file the suit by his conduct. Learned District Judge has also observed that the said testimony has gone unrebutted. He has obviously overlooked the statement made by the petitioner as P.W.2. He has stated categorically that he acquired knowledge of the sale six months after attestation of mutation. He has also denied all the relevant suggestions given to him in the course of cross-examination. The matter stands almost settled by several judgments of the apex Court that just the statements of a C few witnesses are not enough to non-suit the pre-emptor on the ground of waiver and estoppel. Cases of Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133, Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Abaid-ur-Rehman and others v. Mahmand and others 1999 SCMR 201 may be referred. The findings recorded by the learned District Judge on the said Issue No,3 are also reversed. The result is that the civil revision is allowed. The judgments and decrees passed by both the learned Courts below are set aside and a decree for possession of the suit land is passed in favour of the petitioner and against the respondents, by pre-emption, subject to deposit of a sum of Rs,31,285 after adjustment of 1/5th or such amount as the petitioner might have deposited in the Court earlier on or before 31-5-2001. In case the petitioner fails to make the said deposit within the time stipulated above his suit shall stand dismissed with costs throughout. For the moment the parties are left to bear their own costs.