AMIR ALAM KHAN, J.---This judgment will dispose of R.F.A.s Nos,33 of 1997. 69 of 1997 and 94 of 1997. as all the appeals aforenoted arise out of common judgment and even otherwise involve common controversy of facts and law.
2. The appeals noted above are directed against the judgment and decree dated 8-1-1997, passed by the learned Civil Judge, Bhalwal, whereby the suit of respondents Nos,1 and 2 seeking to preempt the sale in favour of the appellants and respondents Nos,3 to 6 was decreed.
3. The relevant facts are that the sale of land measuring 105 Kanals, 5 marlas situate Chak Qazi, Tehsil Bhalwal, District Sargodha, concluded in favour of the appellants and respondents Nos,3 to 6 vide Mutation No,542 dated 31-10-1993 was sought to be pre-empted by respondents Nos,1 and 2 on ground of their being Shall Jar and Shati Khalit with the assertion that they have preferential right of pre-emption who having gained knowledge of the said sale on 9-12-1993 had performed Talbs in accordance with law. It was also asserted in the suit tiled in that regard that the said sale was concluded for Rs,4,30,000 but in order to defeat the possible pre-emptor, it was ostensibly shown to be Rs,4.80,000.
4. The aforesaid suit was resisted by the vendees on the ground that they had purchased the land before referred five years ago and are in possession thereof as owners, therefore, the suit filed in that regard is time barred and that the preemptors having not performed Talbs, the suit is not maintainable. It was also asserted that they have made improvements on the land by incurring expenditure from their own pocket and that in case the suit is decreed, they are entitled to the same. The plea of estoppel was also raised and it was asserted that independent sales were concluded in favour of various vendees, but the mutation was got entered and attested in favour of all the vendees by the Patwari Halqa in collusion with the pre-emptors. The assertions as to preferential right and performance of Talbs were denied.
5. The learned trial Court having framed as many as 10 issues proceeded to record evidence in the case, wherein respondents Nos,1 and 2 produced five witnesses while one of the plaintiffs appeared as his own witness as P.W.3. The documentary evidence produced by the plaintiffs consisted of Exh.
P.1 to Exh. P.22. The appellants and respondents Nos,3 to 6. on the other hand produced eight witnesses while one of the respondents/vendees appeared as his own witness as D.W.1 Needless to add that the attorney of Muhammad Yousaf appellant had appeared on his behalf as D.W.
4. The documentary evidence produced by the vendees comprised of Exh.D.1 to Exh.D .15.
6. The learned trial Court having appraised the evidence and discussed the same proceeded to decree the suit as against the total vendees except the appellant in R.F.A. No,33 of 1997, which too was decreed but to the extent of 1/2 of the land purchased by him.
7. The abovesaid judgment and decrees has been assailed by Muhammad Yousaf, Muhammad Nazir and Yasin in the present Regular First Appeals, while the rest of the vendees have not proceeded to challenge the said judgment.
8. Before entering upon any discussion on the merits, we may point out here that R.F.A.s Nos,33 of 1997 and 69 of 1997 are not properly constituted inasmuch as R.F.A. No,33 of 1997 Muhammad Nazir has not been arrayed as a respondent while in R.F.A. No,69 of 1997 Muhammad Yousaf has not been arrayed as a respondent. The omission is fatal in the normal circumstances, but has become inconsequential because of the consolidated hearing of these appeals, for in appeal filed by Yasin (R.F.A. No,94 of 1997) all the parties have been arrayed as respondents in the case and since the are present before the Court in one capacity or the other, the defect if any stands cured. The judgment in the case of Sh. Muhammad Fazil v. Sh. Muhammad Qadir and 7 others (1997 C.L.C. 243) may be referred in that regard.
9. Learned counsel for the appellants assailed the judgment of the learned trial Court on the ground that the sale in favour of the vendees/appellants being divisible could not be pre-empted by the respondents; that the superior right of preemption has not been proved; and that the Talbs were not performed in accordance with law. In amplification of the arguments aforenoted, it was submitted that separate Khasra numbers were sold to different vendees and that the sale consideration was paid by the vendees in accordance with their shares. It was also argued that this was a case of independent sales rather than divisible sales. As far the argument that superior right of pre-emption was not proved, it was submitted that contiguity of the land owned by the pre-empors with that of the vendees was not proved in relation to specific Khasra numbers purchased by the different vendees and that in the case of Muhammad Yousaf the right of pre- emption having been held to the vendees the land to be equal forming subject-matter of the sale in favour of the vendees could not be equally divided between the vendees and the pre-emptors for the right of pre-emptor as defined under the Punjab Pre-emption Act, 1991 means preferential right, therefore, the equal right could not be recognized, in the realm of pre-emption laws.It was then argued that the performance of Talbs as alleged by the pre-emptors appears to be a concocted story which from the evidence on the record is very much established, therefore, the same could not be said to have been performed in accordance with law. An oblique reference was also made to the suit being barred by limitation for it was argued that the appellant had come into possession of the land under sale about five years before the institution of the suit and that being so suit was barred by limitation.
10. Learned counsel for the respondents on the other hand maintained that this was a case of joint sale for the sale consideration was not paid separately as it appears from the mutation of sale itself (Exh.P.13 on die record), therefore, it could not be termed to be either divisible of independent sale. As for the argument that superior right of pre-emption was not proved, it was submitted that it was not necessary to prove that the land or Khasra numbers thereof belonging to the preemptor must be shown to be contiguous to each and every parcel of land comprised in a Khasra number owned by the vendees. In regard to the case of Muhammad Yousaf, while relying on the Islamic principle as embodied in section 20 of the Punjab Pre-emption Act, 1991, it was argued that in case of equality between the pre-emptor and the vendee the land or the property forming subject-matter of the sale is ordained to be' divided between/amongst the vendees and pre-emptor, therefore, it could not be successfully maintained that section 20 is ultra vires of the whole concept of preemption law. In regard to Talbs it was argued that the same were proved to have been performed in accordance with law. In answer to the question of limitation, it was submitted that the previous possession of the vendees qua the land in dispute was that of a tenant and not under the sale for the sale itself was effected through Mutation No,542 dated 31-10-1993, which fact is even otherwise admitted by D.W.4, D.W.5 and D.W.9.
11. In order to appreciate as to whether the sale effected in favour of the vendees/appellants through Mutation No,542 attested on 31-10-1993 (Exh.P.13 on the record) is divisible, it would be relevant to refer thereto for a cursory glance at the said Mutation would show that although the shares of the vendees have been mentioned in the said Mutation alongwith the Khasra numbers purchased by them, yet the sale consideration had been paid in lump, sum and does not appear to have been paid separately by each vendee. The salutary test, as to whether the sale is divisible or not, as laid down in Maghi ,v. Narain and others (1914 P.R.18) as approved in the case of Abdullah and 3 others v. Abdul Karim, and others (PLD 1968 SC 140) is to the effect that shares of the different vendees must be specified and the different vendees must have contributed proportionately the sale price that is' to say that the two conditions aforenoted must co:- exist. In the instant case, as already observed, though the shares of the parties have been separately specified yet the amount of sale consideration has been paid in lump sum by all the vendees without specifying the share that they had contributed towards the sale price, therefore, the sale in the instant case could not be held to be divisible. Coming of the arguments that the superior right of pre-emption had not been proved for the land out of which the right of pre- emption had arisen to the pre-emptors was not shown to be contiguous to each and every parcel of land comprising in a Khasra number. learned counsel for the respondents very rightly relied on S.M. Khaliq Shah and another v. Haji Feroz Khan and others (1983 SCM R 223) to contend that it is not necessary to prove contiguity of each Khasra number of the pre-emptors with that of the Khasra numbers forming subject-matter of the suit. It is enough that some Khasra numbers were contiguous to the land sold by the vendoY for the pre-emption had been sought in regard to a compact block of land sold by the vendor and the contiguity with even one of Khasra numbers was sufficient to entitle and plaintiffs to claim entire holding comprised in a sale. An earlier judgment of the Honourable Supreme Court in the case of Ahmed Khan v. Sattar Din (PLD 1981 SC 148) may be referred in this behalf.
12. Coming to another limb of arguments which was specifically raised in regard to the case of Muhammad Yousaf that the philosophy of Pre-emption Act is based on preferential right and that being so the right of the vendees having been found to be equal to the pre-emptors the land could not be divided between the two in equal shares. The argument appeared to be plausible in the first blush but on deeper probe nothing turned on the same. It would be noted that the Punjab Pre- emption Act, 1913 was taken off the statute book on and from 31-8-1986. It was thereafter that a constant effort was made to Islamize the law of pre-emption and for that matter the spree started in the year 1990 with the first Ordinance on the Law of Pre-emption and ultimately culminated with Punjab Pre-emption Act, 1991. It is no doubt correct that section 2-C of the Punjab Pre-emption Act defined the right of pre-eniption to be preferential right but it is equally correct that the total effort was made to adopt the Islamic Law of pre-emption in the statutory realm with minor procedural effects of the modern time. This being the basic intention, section 3 of the Punjab Preemption Act was specifically incorporated which relates to interpretation and application of the said Act, whereby it was ordained that the Courts shall seek guidance from the Holy Qur'an and Sunnah in interpreting the various provisions of the Act. Again section 32 (ibid) lays down another principle that matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shariah.The combined reading of the two sections noted above would show that in the matter of interpretation the guidance is to be sought from the Holy Qur'an and Sunnah of the matters ancillary or akin to the provisions of this Act, which have not been 'specifically covered under any provision thereof shall be decided according to Shariah. As observed earlier the total effort in enacting the Punjab Pre-emption Act,- 1991 was' to adopt the Islamic principles on the law of pre-emption, therefore, one has to look to the Islamic notion of pre-emption and it is not difficult to find that under the Islamic law where the right of the pre-emptors and that of the vendees is adjudged to be equal, the property or the land forming subject-matter Of the sale is to be shared by them equally. The legislature in its wisdom, therefore, incorporated this principle in section -20 of the Punjab Pre-emption Act so as to incorporate the complete intention of the principle of Islamic Law of Pre-emption. Need we refer to the preamble of the Ordinance which reads as follows:- "Whereas it is expedient to re-enact the existing law relating to pre-emption so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah".
The reference to the preamble as aforenoted would clinch the arguments being raised by the learned counsel for the appellant. The .above-said aspect apart, even otherwise it is to be noted that the total law of pre-emption based on the principle of warding off a stranger in the vicinity and a Moahalla of a town and land in the village. It is not too far-fetched to understand that where the pre-emptor and the vendee are found to be equally placed, the dismissal of the suit as was done under the old Act was not considered to be proper for it would strengthen the vender and weaken the pre-emptor in the sense that latter would not get any share from the sale. After all it is the choice of the pre-emptor to accept any stranger and he may not file any suit but if he chooses to file a suit, and is ultimately found that the vendee against whom such a suit is filed is also equally placed, the land of the vendor must be equally shared so that the pre-emptor and the vendee may use such land for any further exercise of right for the right of pre-emption arises out of the land that he owns. This argument of the learned counsel for the appellants is also squarely answered.
13. As far the Talbs, it was submitted that the total story of the performance thereof appears to be concocted and does not appeal to reason for it is the case of the pre-emptors that they having gained knowledge of the sale on 9-12-1993 performed Talb-e-Muwathibat whereafter the same was reiterated and then Talb-eIshhad was also made by issuing a notice (Exh.P.7 on the record). It would be relevant to mention here that the various notices sent to the various vendees have been placed on record but Exh.P.7 has been specifically referred to by the learned counsel for the appellant to contend that according to the plaintiff/pre-emptors copy of mutation was applied on 11-12-1993, which was delivered to them on 19-12-1993, yet the minute details as given in the notice (Exh.P.7 on the record) could not have been so given by the pre-emptors unless they wcre possessed of copy of mutation (Exh.P.13). The argument may not be considered for the reason that any other source of knowledge could not be ruled out and then the respondents have not been asked to explain the same. In any case it has not been effectively rebutted on the record that Talb- e-Muwathibat was made on 9-12-1993, whereafter notice of Talb-e-Ishhad was also issued reiterating Talb-e-Muwathibat. The argument raised does not appeal to reason and is too far- fetched, therefore, not accepted. The notice of Talb-e-Ishhad has also been proved by way of cogent evidence on the record for the postal receipts thereof have been received in evidence as Exh.P.1 to Exh.P.6. Although the receipt thereof had been denied by the appellants, yet nothing has been brought on the record to rebut the presumption that the same had reached the address in the normal course of business. It is thus obvious that Talbs had been performed in accordance with law. Coming to the argument that the suits were barred by limitation, suffice it to observe here that the oral sale was effected through Mutation No,542 on 31-10-1993 and the suit filed on 28-2- 1994 could not be said to be beyond limitation. The plea that the vendee appellants had come into possession of the land in dispute under the sale about five years prior to the filing of the suit is also not well-founded for it is admitted by D.W.4, D.W.6 and D.W.9 that they were in possession of the land as tenant and not under the sale. It would be advantageous to refer to the argument of the learned counsel for the respondents that very important constituent of sale is payment of consideration, which was admittedly paid on 31-10-1993 as is evident from the mutation of sale of the even date Exh.P.13. We appreciate the effort of the learned counsel for the appellants in trying to make out a case. but we are sorry to say that no initiative infirmity could be pointed out by him in the judgment passed by the learned trial Court. In the circumstances, the appeals aforenoted are dismissed with no order as to costs.