JUDGMENT MIAN SAQIB NISAR, J.- Mst. Amna Bibi, the vendor sold the suit land measuring 16 kanals in favour of Shahid Pervaiz, Javed Iqbal and Zulfiqar Tanveer sons of Muhammad Hussan. The petitioner Muhammad Sadiq filed a suit for possession through pre-emption on 25.3.1991, pre- empting the sale, on the basis of being co-sharer in the khata. The vendees conceded this suit thus, a decree was passed in favour of the petitioner on 3.4.1991. Respondents Nos. 5 to 7, filed a suit for pre-emption on 2.4.1991, challenging the same sale, against the vendees, who in their written statement disclosed the factum of decree in favour of the petitioner. In this situation, respondents Nos. 5 to 7, sought impleadment of the petitioner, who was accordingly made defendant to the suit.
The petitioner contested the matter and the following issues were framed:- ISSUES:
(1) Whether the plaintiff has superior right of preemption qua the defendant?
(2) Whether the plaintiff has fulfilled the requirements of talabs?
(3) Whether an amount of Rs. 60,000/- was actually paid, if not what was the price of the land?
(4) Whether the suit No. 67, dated 26.3.1991 was malicious if so, its effect?
(5) Whether the plaintiff is entitled to the decree as prayed for?
(6) Relief.
2. Parties were put to trial. The learned Trial Court, vide judgment and decree dated 3.4.1998, found that both the petitioner and respondents Nos. 5 to 7 are equally entitled to pre-empt the suit land, resultantly, a decree of 8 kanals each, of the suit land, was passed in favour of the rival pre- empetors. The suit of the petitioner and decree obtained by him on 3.4.1991 was declared as collusive and ineffective against the rights of respondents Nos. 5 to 7. Against the above, the petitioner preferred an appeal, but without any success.
3. Learned counsel for them petitioner contends that the suit filed by respondents Nos. 5 to 7 was barred by time because, the sale in question was made on 3.12.1990, and the suit brought by them on 2.4.1991 was beyond for months as prescribed under Section 13 of the Punjab Preemption Act, 1991. It is also contended that when the decree had been passed in favour of the petitioner on 3.4.1991, the original vendees were no more owners of the property and, therefore, suit for pre- emption against them was not only incompetent, rather, when subsequently the petitioner was impleaded as a party, the suit by then, had become time- barred against him. It is further submitted that the Court in the present litigation, could not declare the decree in favour of the petitioner dated 3.4.1991, as collusive, rather respondents Nos. 5 to 7 were supposed to challenge the decree under Order 12, Rule 2, CPC. Lastly, it is submitted that respondents Nos. 5 to 7 have failed to fulfil the talabs ' and the findings of the learned Courts below on issue No. 2 are result of misreading and non-reading of the evidence.
4. I have heard the learned counsel for the parties. The submission that according to. The provisions of Section 28 of the Punjab Pre-emption Act, 1913, the suits filed by the rival pre-empetors were to be decided together, but in the Punjab Pre-emption Act, 1991, there is no such provision and according to Section 8 of the Punjab Pre-emption Act, 1991, all the pre-empetors have to join in suit.
I am afraid, this contention has no force. Section 8 of the Punjab Pre-emption Act, 1991 is very clear, which provides that any class or group of persons, who may exercise the right of pre-emption, can either jointly or separately, file the suit. Obviously, if the suits are separate, and the rival pre- empetors have the equal right of pre-emption, in that eventuality, under the principles of justice, it is necessary that both the suits be taken together and decided accordingly, In this case, respondents Nos. 5 to , 7 had filed the suit on 2.4.1991 and at that time, suit of the petitioner was yet pending, thus, it was necessary that both the matters should have been heard and decided together. Assuming that the petitioner was not aware of the institution of the suit by respondents Nos. 5 to 7, yet any decree obtained by him, would not affect the rights of the said respondents, when they had brought the suit during the limitation period. Even otherwise, I share the view of the learned Court of appeal that the petitioner collusively obtained the decree, because respondents Nos. 5 to 7 had issued a notice of Talb-e-Ishhad to the vendees and the vendees on coming to know of their intention to pre-empt the sale, hastily entered into a settlement with the petitioner and conceded his suit. Therefore, such collusive decree could not defeat the rights of respondents Nos. 5 to 7 and they were not supposed to challenge this decree separately under Order 12(2), CPC
5. The argument of the learned counsel for the petitioner that the suit of the said respondents was barred by limitation, suffice it to say that according to the record, and as mentioned in the judgment of the learned Trial Court, suit was filed on 2.4.1991 and was within the period of limitation.
The petitioner never raised the question of limitation, which was a mixed question of law and facts, resultantly, as he did not join this issue consequently, the Trial Court has not given any finding on this point. This plea seems to have been agitated before the Court of appeal, but as mentioned earlier, the proposition was dependent on factual determination, but the necessary facts were neither pleaded in defence not proved by the petitioner, therefore, such plea could not be decided by the learned Appellate Court as a pure question of law. Same is the position before this Court,
6. Now attending to the question of talabs, Suffice it to say that there is a concurrent finding of facts recorded by the two Courts below that the respondents did make the talabs. My on reading of the evidence leads me to the conclusion that talabs had been made by respondents according to law.
Minor discrepancy of a name appearing in the notice of Talb- e-Ishhad, about the fact that, who approached the vendees after the Talb-e-Muwathibat was made by respondents Nos. 5 to 7, is insignificance and trivial and it has no serious bearing or reflection on respondents Nos. 5 to 7 having proved Talb- e-Muwathibat as also Talb-e-Ishhad.
In the light of above, I db not find any merit in the present revision petition, calling for interference in the judgments and decrees of the learned Courts ' below. Resultantly, the same is hereby dismissed.