Appellant No.4 and Ghulam Nabi, predecessor-in-interest of appellants Nos. l to 3 purchased the suit-land vide registered sale-deed, dated 27-7-1971 for a consideration of Rs.14,000. Muhammad Sharif, predecessor---in-interest of the respondents, on 26-7-1972 filed a suit for possession of the suit-land by pre-emption. He claimed that he is a collateral of the vendors and is co-sharer in the suit-land as well as in the Patti. He alleged that the land was in fact sold for Rs.9,000. The suit was contested by the said vendees. It was stated in the written statement that Mangta, respondent No.4 had sold his half share of the land in favour of Ghulam Nabi. He asserted that the land was purchased for R$.14,000. He denied the superior right of pre-emption of the deceased plaintiff. It may be stated here that one Muhammad Tufail also filed a suit but the same was dismissed for non--prosecution, as well as for non-deposit of Zar-e-Punjum. Issues in the suit were framed..
Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree, dated 6-5-1975. Feeling aggrieved the respondents filed a first appeal which was heard by a learned Additional District Judge, Sialkot who decreed the suit on payment of Rs.14,000 vide judgment and decree, dated 18-11-1978.
2. Learned counsel for the appellants contends that Mangta was not a stranger because according to the learned counsel he was a co-sharer in the suit-land; that Ghulam Nabi, the other vendee could have removed the defect by the purchasing the land of his co-vendee at any time; that Sharif deceased plaintiff had not been able to prove himself to be a collateral of the vendors.
Learned counsel for the respondents, on the other hand, argues that a sale by Mangta in favour of Ghulam Nabi had not been made within the period of limitation and was also made during the pendency of the suit filed by the respondents and as such the defect inherent in Ghulam Nabi to defend even his own share of the sale did not stand removed by the said sale.
3. Before I proceed further I may refer to C.M. 1 of 2000 presented today in Court by the learned counsel for the appellants with the prayer that they be allowed to lead evidence to the effect that Mangta was a co-sharer in the suit-land. This application is resisted by the learned counsel for the respondents. After hearing the learned counsel I find that this application must be rejected on two grounds, firstly, that the evidence sought to be produced is not required at all as it has already come on record in the cross-examination of Ghulam Nabi, D.W.4, that Mangta is a co-sharer in the suit land and this fact has not been denied by any of the P.Ws. Including Muhammad Sharif.
Secondly, nothing turns on the said evidence or the plea sought to be raised thereon as would be discussed by me hereinafter. The application is accordingly rejected.
4. Ihave examined the trial Court records, with the assistance of the learned counsel for the parties.
The admitted facts of the case are that Sharif and Ghulam Nabi vendees are collaterals of the vendors is Allah Ditta son of Hakim A.I and Muhammad Sadiq son of Boota. It is also admitted that Ghulam Nabi is nearer in degree to the vendors than Sharif, the deceased plaintiff. It. Is also admitted that Mangta is not a collateral of the vendors. Under section 15 of the Punjab Pre-emption Act, 1913 the first right of pre---emption vests in the collaterals of the vendors in order of succession. Applying the said rule Ghulam Nabi has a superior right of pre-emption than that of the deceased pre-emptor while Mangta has not such superior right. I may here deal with the contention of the learned counsel that Mangta is not a stranger. The reasons forwarded by the learned counsel is that since Mangta is a co-sharer in the suit-land, he could not be termed as a stranger. I am afraid the term stranger cannot be used in its ordinary dictionary meaning. It has to be construed in the context of the said section 15 of the Punjab Pre-emption Act, 1913. What the term means is that if a person who has a superior or equal right of pre-emption to that of the pre-- emptor's joins with him in the sale a person who has no right superior or equal to the pre-emption then this latter person is stranger. Thus, in the present case Mangta having no right superior or equal to Sharif plaintiff is a stranger.
5. The defect in the right or entitlement of Ghulam Nabi vendee to compete with and to defeat Sharif, plaintiff is that he has joined Mangta with him in the sale. Rule of sinker which although not the part: of the said statute unlike in the case of the erstwhile. N.-W.F.P. Pre-emption Act, 1956 nevertheless is applicable to Punjab and has been consistently enforced by the Courts in the Province including this Court and of course the Supreme Court of Pakistan while dealing with the case arising out of Punjab Pre-emption Act, 1913.
6. In order to remove the said defect or disability Ghulam Nabi proceeded to acquire the share of Mangta. For this purpose he filed a suit on 7-3-1973, the plaint whereof is Exh.D.4 on the file. This suit was conceded by Mangta on the very next day i.e. 8-3-1973 vide Exh.D.5 and the suit was decreed on the same date vide Exh.D.7. In the plaint (Exh.D.4) it has been stated that Ghulam Nabi had purchased the half share of Mangta on payment of Rs.7,000 two months before institution of the suit. This means the alleged sale took place in January, 1973. Now we have to see as to whether the said sale in favour of Ghulam Nabi removes the defect which was sought to be removed.
7. The sale was made in favour of Ghulam Nabi and Mangta vendees on 2-7-1971 vide Exh.D.1. The limitation for filing a suit for pre-emption expired on 26-7-1972. The suit was filed by Sharif on 26-7- 1972. The alleged sale by Mangta in favour of Ghulam Nabi vendee took place in January, 1973 as affirmed by Mangta in his statement Exh.D.5 and confirmed by the Court vide decree Exh.D.7. Thus, not only the sale was made during the pendency of the suit filed by Sharif but was made beyond the period of limitation prescribed by law for a suit for pre-emption. Learned counsel for the respondents has cited the case of Sawar Muhammad Sharif and 2 others v. Makhmool and others (1991 SCM R 1419), Ghulam Rasool and another v. Muhammad Latif and 2 others (PLD 1993 SC 52) in support of his contention that a sale by a co-vendee made in favour of a vendee with equal or superior right of pre-emption would be of no avail if not made within the period of limitation or made pendente lite. Learned counsel for the appellant, on the other hand, has not been able to cite any law other than the case of A.I Muhammad and others v. Muhammad Din and others (AIR 1941 Lah. 444) relied upon by the learned trial Court which of course fully support their contention but I am bound to follow the dictum of the Supreme Court of my country. I, therefore, concur with the learned Additional District Judge in his findings that the said sale by Mangta in favour of Ghulam Nabi would not remove the defect/disability inherent in Ghulam Nabi to defend the sale against the claim of Sharif, plaintiff.
8. So far as the contention of the learned counsel as to non-proof of superior right of Sharif plaintiff is concerned, I am afraid the same is neither supported by the pleadings of his clients nor by the evidence. In the written statement Ghulam Nabi stated that he is a nearer collateral of the vendors in preference to the plaintiff. This does not constitute denial of the assertion of the plaintiff in the plaint that he was a collateral of the vendors. Similarly while in the witness-box as D.W.4 he has not denied that Sharif is a collateral of the vendor. Sharif entered the witness-box as P.W.3 and stated that he is collateal of the vendors. This statement was not questioned. However, a question was put and Sharif admitted that Ghulam Nabi is nearer collateral of the vendors as compared to him. To satisfy myself I have examined the pedigree-tables Exh.S.P.I and P.2 and I find that Sadiq vendor is son of Boota son of Kherra son of Umara son of Keema while Allah Ditta vendor is son of Hakam A.I son of Umara son of Keema. Muhammad Sharif plaintiff is son of Taj son of Deena son of Boora son of Bulanda. Ghulam Nabi is recorded to be son of Kavima son of Wadhawa son of Keema son of Umra. The said Bulanda is son of Wazir son of Sahib son of Shah Kali son of Sundar Dad son of Mehma while the said Keema is the son of Bagh son of Ahmad son of Rehm Khan son of Bagh son of Mehma. Thus, Sharif and the vendors and Ghulam Nabi vendee are descendant of the common ancestor, namely, Mehma. No other point had been urged. This R.S.A is without any force and is accordingly dismissed leaving the parties to bear their own costs.