' This judgment recorded in Regular Second Appeal No,70 of 1984 shall dispose of Regular Second Appeals Nos.68 of 1984, 69 of 1984 and 7 of 1985, as a similar points of law are involved in all these cases.
2. The facts giving rise to these Regular Second Appeals are that the respondent Haji Muhammad Hanif filed three pre-emption suits in respect of separate sales made in favour of different vendees.
3. In Regular Second Appeal No,70 of 1984, Mst. Sahibzadi, the original owner sold land measuring 90 Kanals, 18 Marlas situate in village Rakh Lahoora, Tehsil Minchanabad in favour of Manzoor Ahmad and Mehboob Alam through registered sale-deed, dated 9-2-1962 for a sum of Rs,2,500.
This sale was pre-empted by the respondent Haji Muhammad Hanif through pre-emption suit filed on 6-2-1963 on the basis of his superior right of pre-emption as owner in the village. One of the original vendees Manzoor Ahmad alienated his share of land measuring 75 Kanals out of the land in suit in favour of Ghulam Mustafa son of Din Muhammad who was later impleaded as a defendant.
4. The defendants contested the suit both on law and facts of the case. From the pleadings of the parties, the following issues were framed:--
(1) Whether the plaintiff has a superior right of pre-emption than that of Ghulam Mustafa defendant No,3? OPP
(2) Whether the sale effected in favour of defendant No,3 is bogus and fictitious or fraudulent. If so, with what effect? OPP
(3) Whether the transaction of sale effected in favour of defendant No,3 is invalid? OPP (3-A) Whether the sales were made in favour of the defendants Nos.16 to 65 after the limitation and were as such hit by the rule of lis pendens? OPP ' Whether the plaintiff has already waived his right of pre-emption? OPD
(5) Whether the sale price of -Rs,2,500 was bona fide fixed or actually paid? OPD
(6) If not what is the market price of the land? OP Parties
(7) For what amount of money if any, Ghulam Mustafa has purchased the share of defendant No,1 and with what effects? OPD
(8) Whether the sale in suit is pre-emptible? OPP
(9) Relief.
5. In the first round of litigation, the trial Court under Issue No,1 held that the plaintiff has failed to prove his superior right of preemption. Issues Nos.2, 3 and 4 were also decided against the plaintiff.
The sale price was determined under Issue No,6. The sale consideration paid by Ghulam Mustafa to Manzoor Ahmad was found to be Rs,6,500. On Issue No,8, it was held that the suit land being evacuee and settlement of permanent rights not having been proved to exist in favour of the original vendor Mst. Sahibzadi, the sale was held to be not pre-emptible. The suit was thus, dismissed vide judgment and decree, dated 13-2-1965. The first appeal filed by Haji Muhammad Hanif was dismissed vide judgment and decree, dated 18-6-1965 passed by a learned Additional District Judge, Bahawalnagar. Before the said Appellate Court, the only point urged was whether the sale in dispute was pre-emptible. It is important to notice that the findings of the trial. Court on other issues was not challenged.
5-A. In Regular Second Appeal No,68 of 1984, the land measuring 14 Kanals, 8 Marlas situate in Mauza Pogal, Tehsil Minchanabad was sold by Ahmad son ofUsman in favour of Allah Ditta for sale consideration of Rs,800 vide Mutation No,90, dated 28-4-1962. Haji Muhammad Hanif filed a suit for pre-emption on the basis of being owner in the village. Similar issues were framed. The suit was dismissed by the learned trial Court in identical manner. The first appeal filed by the plaintiff/preemptor also failed. In Regular Second Appeal No,69 of 1984, land' measuring 19 Kanals, 18 Marlas was sold by Jan Muhammad in favour of Niaz Ahmad for a consideration of Rs,700 vide Mutation No,89, dated 28-4-1962. Haji Muhammad Hanif filed a suit for pre-emption against this sale also claiming his superior right of pre-emption as owner of the land in the village. Similar issues were framed in this suit also. This suit also was dismissed in the first round of litigation, against which, the first appeal of the plaintiff/pre-emptor failed.
6. Three Regular Second Appeals were filed by Haji Muhammad Hanif being Regular Second Appeals Nos.142, 143 and 144 of 1965 which were decided by a learned Single Judge of this Court by a common judgment. By this judgment, the second appeals were accepted in the light of the judgment titled as Haji Sultan Muhammad v. Muhammad Siddiq PLD 1973 SC 347 wherein it was observed that as regards the permanent transferees of evacuee land, they are conferred full ownership rights, and therefore, the sales made by them are subject to the right of pre-emption being sales of agricultural land as described in section 4 of the Pre-emption Act. A further perusal of the said order discloses that the only matter agitated by the parties in the second appeals was confined to the pre-emptibility of the suit land. After setting aside the judgments and decrees of the lower Courts, the case was remanded on 25-10-1976 for fresh decision in accordance with the law laid down by the Honourable Supreme Court after hearing the parties. In the meanwhile, Ghulam Mustafa defendant No,3 in the suit subject-matter of Regular Second Appeal No,70 of 1984 alienated the land purchased by him in small portions to various persons between 29-6-1968 to 1978 and the appellants in Regular Second Appeal No,7 of 1985 are the said subsequent vendees from Ghulam Mustafa. Muhammad Ashraf etc. Appellants in Regular Second Appeal No,70 of 1984 are the legal heirs of Ghulam Mustafa deceased.
7. Another development took place when the original vendee Mehboob Alam in Regular Second Appeal No,70 of 1984 transferred his share of 16 Kanals in favour of the plaintiff/pre-emptor in recognition of his superior right of pre-emption on 19-1-1966 vide registered sale-deed executed in this behalf. Upon remand, the respective suits were contested by the defendants therein. Vide judgment and decree, dated 9-3-1980 passed in each of the three suits. The learned Civil Judge, Minchanabad this time decreed the suits of the plaintiffs/pre-emptors. Upon Issues Nos.1 to 3 which were decided together, the learned trial Court proceeded upon the presumption that the defendants had admitted the superior right of pre-emption of the plaintiff in their respective written statements. It was upon this assumption that it was held that the plaintiff did have the superior right of pre-emption. While dealing with the question of purchase by Ghulam Mustafa of the share of Manzoor Ahmad, it was held to be ineffective on the ground that it was effected through oral sale only. Issue No,4 regarding waiver was decided against the defendants while Issues Nos.5 and 6 regarding sale price were decided as the plaintiff had admitted the sale consideration. Upon Issue No,3-A, it was held that the mutations and sale-deeds in favour of the defendants Nos.16 to 65 (appellants in Regular Second Appeal No,7 of 1985) were hit by principle of lis pendens. Under Issue No,7, it was decided that though Ghulam Mustafa purchased the share of Manzoor Ahmad for a sum of Rs,6,500 yet such purchase was ineffective upon the rights of the plaintiff/pre-emptor. Upon Issue No,8, the sale was held pre-emptible. Resultantly, the decree for pre-emption was passed on 9-3-1980.
8. The first appeals preferred by the respective vendees were dismissed vide judgments and decrees, dated 26-11-1984 passed in each case.
9. In the present regular second appeals the following important questions of law have been raised:-
(i) That in the first round of litigation, the suit filed by the respondents was resisted both on law and facts of the case. The superior right of pre-emption was not admitted. It was in this view of the matter that Issue No,1 i,e, 'Whether the plaintiff has superior right of pre-emption than that of Ghulam Mustafa defeNant No,3' was framed. Similar issues were framed in the other suits as well.
Upon consideration of the evidence on the record, the trial Court dismissed the suit by judgment and decree, dated 13-2-1965 basing its decree upon the findings on Issue No,1 by which it was held that the plaintiff has, failed to prove his superior right of pre-emption;
(ii) that the pre-emptor in order to show his superior right of preemption must prove the same by independent evidence. Although, the pre-emptor claimed to be an owner in the village yet he produced no evidence whatsoever as to the origin of his title. His title could only be created by a registered document in his favour under section 54 of the Transfer of Property Act, 1882 which was not proved on the record;
(iii) that in the first appeal in the earlier round of litigation, the plaintiff confined the appeal only to the question of the preemptibility of the suit land and did not urge any other point including the adverse findings of the trial Court against the alleged superior right of pre-emption;
(iv) that any point not urged in appeal shall be deemed to have been abandoned by the appellant, thus, admitting the findings of the trial Court upon that issue;
(v) that even before this Court and the earlier regular second appeals, the only point urged by the parties was regarding the pre-emptibility of the suit land and the remand order of this Court, dated 25-10-1976 was passed in the limited context of the judgment of the Honourable Supreme Court cited therein for the sale purpose of determining the pre-emptibility of the suit land or otherwise;
(vi) that the remand order, dated 25-10-1976 could not allow the trial Court or the First Appellate Court in the second round of litigation to upset the earlier judgments and decrees passed by the Courts of co-ordinate jurisdiction. While doing so, both the learned lower Courts in second round of litigation misinterpreted and misconstrued the order of remand;
(vii) that the entire superstructure in the second round of litigation has been built around what is termed as admissions of the defendants in their pleadings regarding superior right of preemption of the plaintiff. Firstly, as stated earlier, the contentions in the written statement did not amount to admissions and secondly there cannot be a valid admission against law and any such admission even if made is ineffective upon the rights of the defendants;
(viii) that the First Appellate Court in second round of litigation completely misconstrued the controversy involved in the case. Like the trial Court, the First Appellate Court also erred that the appellants/defendants had admitted the superior right of preemption of the plaintiff;
(ix) that the First Appellate Court completely misread the record when it came to the conclusion that the previous judgment and decree of the trial Court dismissing the suit of the plaintiff was passed by the learned trial Court mainly on the determination of Issue No,8. This is wholly incorrect as Issue No,1 was specifically decided against the plaintiff/pre-emptor on the ground that he has failed to prove his superior right of preemption; and
(x) that even if the pre-emptor had any right of pre-emption, he lost the same by alienating his own land through Mutation No,25 in the year 1972.
10. The learned counsel for the respondent/pre-emptor submitted that vide judgment and decree, dated 25-10-1976 passed in Regular Second Appeals Nos.142, 143 and 144 of 1965, the judgments and decrees of the learned trial Court and the First Appellate Court in the first round of litigation were set aside and the case had been remanded for fresh decision. He thus, contended that after the remand, the learned trial Court as well as the learned First Appellate Court were fully competent to pass a fresh decree, if it was warranted under law. He further contended that the written statement filed by the appellants did not specifically deny the superior right of pre-emption and according to the law of pleadings, it would be presumed that they have admitted the superior right of pre-emption of the plaintiff. The sale by Manzoor Ahmad to Ghulam Mustafa and subsequent sales or other alienations by the original vendees to subsequent purchasers was hit by the principle of lis pendens and did not create any right in the said subsequent vendees. Regarding the contention that the plaintiff had lost his right of preemption by alienating his land vide Mutation No,25, dated 13-9-1972, he stated that firstly the Sale Mutation No,25 was an oral sale and, therefore, ineffective and secondly, vide orders of the Assistant Commissioner Exh.P.46, the said sale mutation was set aside. It was further submitted that the subsequent vendee can only come into picture if he acquires any ownership within the limitation described for filing the suit for pre-emption. He also submitted that even if Ghulam Mustafa acquired some land from Manzoor Ahmad, he had not done so in the acknowledgement of his superior right of pre-emption.
11. After considering the argument of the learned counsel for the parties, the contentions raised by the appellants have much force. It is evident from the record that in the first round of litigation, both the learned trial Court and the First Appellate Court acknowledged in their respective judgments that the defendants had denied the superior right of pre-emption of the plaintiff/respondent. In fact, it was in the face of this non-admission of the superior right of pre-emption that the trial Court consciously framed Issue No,
1. It is also noteworthy to observe that on the basis of the evidence, the trial Court in the first round of litigation found Issue No,1 against the plaintiff. It was against all norms of administration of justice to have reversed the findings upon Issue No,1 on the assumed admission of the appellants/defendants. In the first appeal filed by the respondent/plaintiff against the earlier judgment of the trial Court, he consciously confined himself to only one issue i,e, Issue No,8. The respondent had thus abandoned and given up his challenge to the remaining findings of the trial Court which were adverse to him and which resulted in the dismissal of the suit. The conduct of the respondent would amount to admitting the judgment of the trial Court as correct and binding upon him. Again during the course of the first round in the regular second appeals, the plaintiff/respondent did not agitate any issue other than the pre-emptibility of the suit land. A perusal of the order, dated 25-10-1976 passed by this Court would show that the second appeals had been accepted only in the limited context of the issue agitated before this Court. It was in this view of the matter that this Court had remanded the case to be tried afresh but made it subject to the condition as follows:-- "In the circumstances, all the three cases are remitted to the learned District Judge, Bahawalnagar for being entrusted to the competent Court for fresh decision in accordance with the law laid down by the Supreme Court, after hearing the parties."
' Unquestionably the judgment of the Supreme Court in Haji Sultan Muhammad's case (supra) related to the question of preemptibility of the land. Alone and to no other question. After the remand, the learned trial Court as well as the learned First Appellate Court completely misdirected themselves in expanding their scope by misinterpreting the order of remand. There was no justification for both the Courts below to have differed from the findings of Courts of coordinate jurisdiction when the same were not set aside or sought to be set aside on any ground other than the pre-emptiblity of the land in the suit. The trial Court as well First Appellate Court in the second round of litigation were under an erroneous conception that the first judgment of the trial Court was based only on the question of pre-emptibility. This is against the record which shows that the suit was dismissed in the first instance upon Issue No,1 as well as Issue No,8.
12. The only claim of the respondent/plaintiff with regard to his superior right of pre-emption was his ownership in the village. He failed to prove the origin of his title of being owner in the village. It is not borne out from the record, if he even claimed his ownership on the basis of a registered sale- deed. If that was not so, any oral sale or longstanding entries in the Revenue Record would not create title in the respondent/plaintiff. According to section 54 of Transfer of Property Act of 1882 any sale of immovable property of the value of more than Rs,100 has to be made through a registered instrument. Section 54 of Transfer of Property Act applies with full force to the sale in question and any sale in violation of the requirement of the said section shall be void. Reliance is placed upon the following judgments:-
(i) Jangi v. Jhanda and others PLD 1961 BJ 34; (ii) Haji Noor Muhammad v. Ghulam. Masih Gill PLD 1965 (W.P.) BJ 1; (iii) Muhammad Bakhsh v. Zia Ullah and others PLD 1971 (W.P.) BJ 42; (iv)
Muhammad Bakhsh v. Zia Ullah and others 1983 SCM R 988; (v) Muhammad Khan and another v.
Fazal Muhammad and another 1994 SCM R 281; (vi) Pir Bakhsh v. Budhoo NLR 1978 Civil 249 and (vii)
Muhammad Fazal v. Kaura 1999 SCM R 1870.
13. If Ghulam Mustafa 'could be held to have not acquired any title on account of an oral sale in his favour, the same would equally apply to the respondent/plaintiff. The plaintiff/pre-emptor in order to succeed must show his superior right of pre-emption at the time of sale, the institution of suit and the passing of the decree. In the present case, the respondent/plaintiff has failed to prove his superior right of pre-emption at any stage. The question of the vendees having such rights or improving their status or the sales in their favour being hit by principle of lis pendens would not arise.
14. The upshot of the above discussion is that all the Regular Second Appeals are accepted and the judgments and decrees, dated 26-11-1984 and 9-3-1980 passed by the learned Additional District Judge and the learned Civil Judge respectively, are set aside. The parties arc left to hear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.