Briefly stated the facts of the case are that, the suit land measuring 158 Kanals and 6 Marlas, situated in Mauza Aalu Shandev, Teshil Wazirabad, District Gujranwala, was sold by Ahmad Yar in favour of respondents No,1 to 3, through registered sale deed dated 27-6-1966. The petitioner alongwith Jalal Khan brought a suit for pre-emption challenging the aforesaid sale on the basis of superior right of pre-emption being owners in the estate. This suit was contested by the respondents, who inter alia by denying the superior right of the plaintiffs, also took up the plea that the property in question was originally an evacuee property, which has been transferred in favour of Kaley Khan and thereafter, purchased by Ahmad Yar, but the settlement fee has not been paid by the allottee and the property is, therefore, not pre-emptible. Issues were framed, parties produced evidence and the suit was decreed on 20-5-1971. Appeal was filed by the respondents, which was accepted on 5-2-1973 and the matter was remanded. Again the suit was decreed on 15-6-1982, against which, appeal was filed, and allowed vide judgment dated 14-3-1989, the matter was again remanded. Ultimately, vide judgment and decree dated 30-4-1989, the learned trial Court decreed the suit, against which, the respondents No,1 to 9, preferred an appeal, which has been accepted through the impugned judgment and decree dated 21-9-1992.
2. The learned Court of appeal, by reversing the findings of the trial Court on Issues No,1 and 9 i,e, "Whether this Court has jurisdiction to try the suit" and "Whether the suit land is still Evacuee property on account of non-payment of rehabilitation and settlement fee? If so, to what effect", has dismissed the suit, primarily holding that the property in question is not pre-emptible being part of the compensation pool for the lack of the deposit of settlement fee. It has further been held that the plaintiffs have failed to establish their being owners in the estate for the reason that Exh. P.1 and Exh.P.2, are not supported by the oral assertion of the plaintiffs.
3. , Learned counsel for the petitioner contends that the property in question had permanently been settled upon Kaley Khan, who had transferred the same in favour of Ahmad Yar; the learned Court of appeal has not considered the fact of amendment in section 16 of the Displaced Person (Land Settlement) Act, 1958, as has been interpreted by Haji Sultan Muhammad and another v.
Muhammad Siddiq (PLD 1973 SC 347); once the property had been permanently settled, it goes out of the compensation pool, and under section 4 of the Pre-emption Act, 1973, a sale by the allottee or subsequent transferee, can validly be challenged; the view of the learned Court of appeal that as the settlement fee had not been paid, therefore, it still remains a part of the compensation pool, is not only against the law, but against the record, because according to D.W.22, the witness produced by the respondents, he has conceded that the settlement fee stood deposited. It is further argued that notwithstanding the oral testimony of the petitioner, the documentary evidence produced on the record as Exh. P. 1 and Exh. P.2 , the Jamabandis, both documents proved that the petitioner was the owner in the estate i,e, Mauza Aalu Shandev, where the suit land is situate, and in order to contradict the above, no evidence was led by the respondents' side; it is settled law that the documents must be given credence over the oral evidence and, therefore, even if the oral evidence was not produced in support of these two documents, the documents itself unequivocally established the right and status of the petitioner.
4. Confronted with the above, learned counsel for the respondents state that the settlement fee has not been paid and this is so proved on the record through evidence; besides, there is a finding to this effect by the learned Appellate Court, resultantly, the property still remains to be a part of the compensation pool and thus, could not be pre-empted under the law. Reliance in this behalf, has been placed on the judgment of this Court in F.A.O. No,53 of 1973. It is further argued that the pre-emptor under the law, is supposed to maintain his right of pre-emption at three stages, i,e, at the time of sale; the institution of the suit and also at the time of decree; the Jamabandis Exh.P.1 and Exh.P.2, placed on the record, though pertains to the period of sale and institution of the suit, but not the decree, which was subsequently gassed and the fresh Jamabandi prepared after four years has not been placed on the record to prove the ownership of the petitioner.
5. I have heard the learned counsel for the parties. As regards the question, whether the property in question is a part of the compensation pool, by relying upon PLD 1973 SC 347, and as per the provisions ofsection 16 of the Land Settlement Act, it stands proved that the land had permanently settled upon the allottee, which he transferred in favour of Ahmad Yar, therefore, a valid sale was made in favour of respondents Nos.1 to 3, which was pre-emptible under the law. The judgment in F.A.O., No,53 of 1973, between the parties in earlier round of litigation is in a different context, and the ratio is confined in relation to the question of production of additional evidence involved therein. I am of the considered view that in the present case, the property was validly transferred in favour of the respondents on account of sale and it does not lie in their mouth to plead that the sale is invalid, because of the non-payment of the settlement fee, as the sale qua the respondents has been affected through registered deed and the suit land prior thereto, permanently settled upon the allottee, and stood transferred to Ahmad Yar as well. Resultantly, the finding of the learned Court of appeal that the property is a part of the compensation pool, is not sustainable in the eyes of law, therefore, the same is set aside with the result that the Civil Court has the jurisdiction to decide the pre-emption action.
6. As regards the question, whether the plaintiffs have failed to prove their superior right being owners in the estate, suffice it to say that Exh. P.1 and Exh.P.2, clearly prove their assertion. The plea of the respondents' side, that the petitioner has failed to bring on record the Jamabandi pertaining to the period, when the decree was passed, would mean that according to this assertion, the petitioner must have alienated the property, or was divested of his ownership during the pendency of the suit. But in order to prove, if such an eventuality had occurred, no evidence has been led.
Meaning thereby that on the basis of Exh.P.1 and Exh.P.2, the petitioner continued to be the owner in the estate at all stages relevant for the purposes of sustaining a preemption action.
7. The last submission of the learned counsel for the respondents, which is being taken up alongwith the application (C.M.No,1/2002), filed by the legal heirs of Jalal Khan for their transposition, the position is that after the decree of the suit, the respondents Nos.1 to 3 preferred the appeal, which was accepted and the present petition has only been tiled by Ghulam Nabi and not the legal heirs of Jalal Khan, who were arrayed as respondents. Now they have moved the application for their transposition as petitioners. Learned counsel for the petitioner has no objection for their transposition. However, the matter has been opposed by respondents Nos.1 to 3 on two grounds, firstly that transposition is not permissible for the reason that having not agitated against the decree, said respondents had given up the right of pre-emption, thus, the case is hit by the principle of Sinker, secondly, that by transposition of the said respondents at this stage, the present petition, to their extent, would be barred by limitation.
8. As far as the transposition is concerned, the law is very clearly enunciated in the following judgments:-- Said Alam and another v. Raj. Sohrab Khan and 8 others (1970 SCM R 639); Central Government of Pakistan and others v. Suleman Khan and others (PLD 1992 SC 590); Zargham Hussain Shah v. Muhammad Arshad and others (1994 CLC 70); Mian Abdul Waheed v. Mst. Amtul Hamid etc. (PLD 1962 (W.P. Lahore 114). Thus, on the same principle, the applicants are entitled to be transposed.
9. As regards the question of Sinker, suffice it to say that the learned counsel for the respondents has failed to cite any law in which, a person having a right of pre-emption, who joins as a plaintiff, if subsequently at any point of time, withdraws from the proceedings or due to inaction in filing appeal against the judgment and decree, which goes against him, the whole suit can be dismissed on the principle of Sinker, resultantly, this objection has no force. For the other plea that the present application, if allowed, the petitioner would become time-barred, I am not convinced, because even if, a party is joined as a respondent, but is subsequently transposed, would be deemed to be a party right from the beginning. As this petition was filed well within time, resultantly, just by transposition of some of the respondents as petitioners, the petition cannot be dismissed as being out of limitation. In the light of above, this petition is allowed. The judgment and decree of the learned Appellate Court is set aside and that of the learned trial Court is upheld.