AMIR ALAM KHAN, J. -- This judgment will dispose of RFAs Nos. 33/1997, 69/1997 and 94/1997, as all the appeals afore-noted arise out of common judgment and even otherwise involve common controversy of facts and law.
2. The appeals noted above are dire'cted 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 pre- empt 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 ought to be pre-empted by respondents Nos. 1 and 2 on the ground of their being Shafi Jar and Shall 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 Ta/abs in accordance with law. It was also asserted in the suit filed 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 afore-referred five years ago and are in possession thereof as owners, therefore, the suit filed in that regard is time-barred and that the pre-emptor having not performed Ta/abs, the suit is not maintainable. It was also asserted that they have made improvements on the land by incurring expenditure from their on 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-emptor. The assertions as to preferential right and performance of Ta/abs 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 on witness as PW-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 on witness as DW.1. Needless to and that the attorney of Muhammad Yousaf appellant had appeared on his behalf as DW.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 excepting the appellant in RFA No. 33/1997, which too was decreed but to the extent of 1.2 of the land purchased by him.
7. The above said 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 RFAs Nos. 33/97 and 69/97 are not properly constituted inasmuch as in RFA No. 33/97 Muhammad Nazir has not been arrayed as a respondent while in RFA No. 69/907 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 (RFA No. 94/97) all the parties have been arrayed as respondents in the case and since they 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 Vs. Sh. Muhammad Qadir and 7 others (1997 CLC 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 pre-emption has not been proved; and that the Talabs were not performed in accordance with law. In amplification of the arguments afore-noted, 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-emptor 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 be equal to the vendees the land forming subject-matter of the sale in favour of the vendees could not be equally divided between the vendees and the pre-emptor for the right of pre-emptor as defined under the Punjab Preemption 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 Talabs as alleged by the pre-emptor 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 the record), therefore, it could no to be termed to be either divisible or 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 pre-emptor 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 of embodies in Section 20 of the Punjab Pre-emption, Act, -1991, it was argued that in case of equality between the preemptor and the vendee the land or the property forming subject-matter of the sale is ordained to be divided between/amongst the vendees and the pre-emptor, therefore, it could not be successfully maintained that Section 20 is ultra vires of the whole concept of pre-emption law. In regard to Talabs 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 DW.4, DW.5 and DW.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 then, 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 of divisible or not, as laid down in Maghi Vs. Narain and others (1914 P.R. 18) as approved in the case of Abdullah and 3 others Vs. Abdul Karim and others (PLD 1968 S.C. 140) is to the effect that the 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 afore-noted 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 to 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-emptor was not shown to be contiguous to each and every parcel of !And comprising in a Khasra number, learned counsel for the respondents very rightly relied on S.M. Kha/iq Shah and another Vs. 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-emptor 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 vendor 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 the plaintiff to claim entire holding comprised in a sale. An earlier judgment of the Honourable Supreme Court in the case of Ahmed Khan Vs. Sattar Din (PLD 1981 S.C. 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-emptor 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 of the statute book on and from 31.8.1986. It was thereafter that a constant effort was made to Islamize the law of preemption 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-emption to be preferential right but it is equally correct that the total effort was made to adopt the Islamic Law of Preemption in the statutory realm with minor procedural effects of the modern time. This being the basic intention, Section 3 of the Punjab, Pre-emption 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 Quran 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 Quran 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 of 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-emptor 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 principles of Islamic Law of Pre-emption. Need we refer to the preamble of the Ordinance which reads as follows:- "Whereas it is expedient to reeanct 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 Quran and Sunnah."
The reference to the preamble as afore-noted 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 is based on the principle of warding of a stranger in the vicinity and a Mohallah of a town and land in the village. It is not too far-fatched to understand that where the preemptor 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 vendee 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 choses 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 Ta/abs, 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-emptor that they having gained knowledge of the sale on 9.12.1993 performed Talb-e-Muwathibat whereafter the same was reiterated and then Ta/b-e-/shhad 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 appellants to contend that .According to the plaintiff/pre-emptor 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-emptor unless they were 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 Talabs 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 DW.4, DW.6 and DW.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 vitiative infirmity could be pointed out by him in the judgment passed by the learned Trial Court. In the circumstances, the appeals afore-noted are dismissed with no order as to costs.