AMIR ALAM KHAN, J.--- This judgment shall be read in R.S.As. Nos. 52 of 1982 and 53/1982 as the aforesaid appeals proceed on common ground involving common controversy.
2. The appeals afore-noted are directed against the judgments and decrees dated 2.3.1982 passed by the learned District Judge, Sialkot whereby the first appeals of the appellants herein were dismissed and the judgments and decrees dated 17.2.1980 passed by the learned Civil Judge 1st Class Daska were affirmed, resultantly the suits of the respondents seeking possession of the two parcels of land, through pre-emption were decreed by the two Courts below.
3. The relevant facts are that two sales of different parcels of land concluded through sale-deeds dated 23.8.1976 registered on 25.8.1976 and dated 17.1.1977 registered on the even date in favour of the same 'vendees were sought to be pre-empted by two different sets of the pre-emptor i.e. Respondents in the respective appeals on the ground that they are Yak Jaddi of the vendors; co- sharer in the Khata; and owner in the village, therefore, they have preferential right to pre-empt the land forming. Subject-matter of the abovesaid sale-deeds. The suits filed in that regard came to be heard by a Civil Judge 1st Class of ,the area and were contested inter a/ia on the ground that the vendees being the tenants of the land in dispute had the first right of pre-emption, therefore, the suit is liable to be dismissed.
It was on 11.2.1978 that one of the vendees i.e. Faiz Ahmed respondent No. 5 in the appeals aforenoted appeared in Court and made a statement that h e had received sale price from the preemptor to the extent of his share and that he had no objection to the suits being decreed to the extent of his share in the sale. The learned Trial Court, however, did not 'pass a decree in favour of the pre-emptor to the extent of share of Faiz Ahmed and having framed issues in the case proceeded to record evidence. The two suits were ultimately decreed by the learned Trial Court vide its judgments and decrees dated 17.2.1980 mainly on the ground that the respondents- plaintiffs were able to prove their preferential right of pre-emption and the grounds on which the vendees i.e. The appellants herein were contesting that they being the tenant have the first, right to obtain the land were also not available to them because one of the vendees namely Faiz Ahmed was not proved to be a tenant of the land in dispute and since the other vendee namely Ali Muhammad had joined a stranger in the sale, therefore, his first right also stood defeated on the principle of sinker. The appeals filed by the vendees were also dismissed by the learned District Judge, Sialkot, vide his judgments and decrees dated 2.3.1982.
4. The abovesaid judgments and decrees have been assailed in the present second appeals.
5. Learned counsel for the appellants being aware of the rule laid down in the case of Abdullah and 3 others Vs. Abdul Karim and others (PLD 1968 S.C. 140), tried to distinguish his case by very strongly relying on the statement of Faiz Ahmed co-vendee recorded by the Court on 11.2.1978 before framing issues in the case, whereby he had admitted the superior right of preemption of the respondents and had also stated that he had received a certain amount in lieu of his share in the two parcels of land, therefore, he had no objection to the suits being decreed as against him. He, while construing the statement afore referred, maintained that the transactions of sales were divisible and as such the principle of sinker could not be applied in, the. Case. Reliance in that regard was placed on Manghta Khan and others Vs. Mst. Hamida Begum and others (PLD 1981 S.C. -51), Muhammad Riaz and others Vs. Fateh Muhammad and others'(PLD 1991 S.C. 1099) as also Maghi Vs. Narain and others (6 P.R. 1914). Learned counsel for the appellants further argued that if the statement of Faiz Ahmed respondent No. 5 in the appeals' be read in the light of rulelaid Awn in the case of. Manghta Khan, Muhammad Riaz and Maghi noted supra, it would become crystal clear that if the share of the vendee is described/determihed then the first presumption would be that he had paid the price in accordance with his share and since one of the vendees had specified his share by making a statement in Court, therefore, it shall be presumed that he had contributed the sale price accordingly and thus the two Courts below have erred in law as also in point of fact in relying on the doctrine of sinker.
6. Learned counsel for the respondents, on the other hand, maintained that the two co-vendees mutually destroyed each other inasmuch as one of the vendees did not have the requisite qualification to claim first right or even equal right of pre-emption and thus the doctrine of sinker was rightly applied for in such a situation the vendee having superior right of pre-emption shall also be relegated to the same position as of the vendee not having the superior right or equal right of pre-emption.
7. It is not only well-settled but also well-accepted that in order to see whether the transaction is divisible the sale-deed as also the endorsement of the Registrar made thereon is to be looked at to arrive at the conclusion as to what was the intention of the parties at the time of concluding the sale; in that, it is to be gathered from the contents of sale-deeds as also the endorsement of the Registrar to see as to whether the shares of the parties have been specified and described therein and that the sale price has been contributed in accordance with the said share or whether the same had been paid in lump sum. A cursory glance at the sale-deeds forming subject-matter of the two suits would show that the sale was not divisible for neither .The shares of the vendees were specified therein nor the consideration was received by the vendors in proportion to the shares rather it was paid in lump sum. The reliance of learned counsel for the appellant on the statement of Faiz Ahmed, one of the vendees, is also not very apt. The real intention of the contracting parties to .The sale contract is to be gathered from the sale-deed itself and is not to be determined by on act or conduct of the vendees subsequent thereto for if such an intention is attributed the result would be anomalous inasmuch as it would be very easy for the vendees having realized their mistake to make such a statement thereby stating their share in the sale as also that the sale price was contributed in accordance therewith. Again the oral evidence led to contradict the contents of a document would be inadmissible in view of the provisions contained in Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984 which corresponds with the provisions of Sections 91 and 92 of the Evidence Act, 1872. The question fell for interpretation as far back as 1914 in the case of Maghi Vs. Narain and others (6 P.R. 1914) and the decision reached thereon is illuminating, which may be quoted hereunder:- "That where the purchase-money for a sale is paid in lump sum without specification of the amounts paid by the various vendees, the transaction must be regarded. As indivisible, though the shares to be taken by the various vendees may have been specified in the deed."
It was further held:- "It was next urged that the vendees were entitled to show by oral evidence that the sale was in fact one of a two -fold character, and that the transaction, so far as defendants Nos. 2 to 5 were concerned, was entirely distinct from the transaction in favour of defendant No. 6. It may be a question whether evidence of this kind is . Admissible, regard being had to the provisions of Section 99 of the Indian Evidence Act, but however that may be, we are clear that persons who by clothing their transaction in a particular form have induced a preemptor to come forward and claim 'pre-emption in respect of that transaction as a whole cannot be allowed to turn round thereafter and to claim to show that their real intention was something quite different from that, expressed in the sale-deed."
It would be noted from the rule quoted above that the statement made by Faiz Ahmed could not be of any help to the vendees for one of them could not improve the status of other by making a statement subsequent to the sale that he had received the sale price in proportion to his share nor could improve the qualification of the other vendee which he had lost by joining a stranger in the bargain. Similarly it could not be successfully maintained that the share having been specified in the subsequent statement, the presumption would be that the vendee had contributed the sale price in accordance with his share. In the cases of Manghta Khan and others Vs. Mst. Hamida Begum and other's (PLD 1981 S.C. 51) and Muhammad Riaz and others Vs. Fateh Muhammad and others (PLD 1991 S.C. 1099) the share as also the amount had been specified, therefore, the sale was held to be divisible. The reliance of learned counsel for the appellants on the said case is absolutely misplaced. Similarly, the argument of the learned counsel that in view of the statement made by one of the vendees, the rule laid down in the said cases would be applicable, is also not tenable for the reason that the co-vendee having made a statement subsequent to the sale transactions could not improve the status of the other vendee nor could the rule of the said cases be applied in the facts and circumstances of the present case.
8. In the circumstances learned counsel for the appellants has failed to point any vitiative infirmity in the findings recorded by the two Courts below, therefore, the appeals afore-noted are dismissed with costs throughout.