RAB NAWAZ Versus SHAHNAWAZ KHAN

MUHAMMAD ASADULLAH, J‑‑The land in dispute measuring 672 kanals and 15 marlas situated in Chak No.7/M.L, Tehsil and District, Mianwali was sold by Mst. Kamal Khatoon in favour of respondents and through a registered sale‑deed dated 8‑3‑1981 The appellants filed a suit before the Collector, Mianwali the pre‑empting the' said sale claiming that their right was superior and they were tenants in the land in dispute at the time of sale. On the other hand, respondents No.1 to 3 filed a suit for pre‑empting the said sale ‑before the learned trial Court on 10‑2‑1982 claiming superior right of pre‑emption on the ground that they were brothers of the vendor, Mst. Kamal Khatoon. The suit by the appellants was file a sum where on 14‑2‑1982 i.e. after the filing of suit by respondents Nos.1 to 3. It was decreed on 16‑3‑1982 in favour of the appellants because the vendees confessed judgment and also made a statement 'that they had already received whole of the pre‑emption money and that 1/ 5th of pre‑emption money may also be refunded to the appellants. On 8‑5‑1982 the appellants filed an application before the learned trial Court for joining them as party to the case and the same was allowed. In the amended plaint respondents No.1 to 3 attacked the decree dated 16‑3‑1982, in favour of the appellants also on the ground that it was a collusive decree and did not affect their rights. The suit was contested by the appellants and respondents Nos.4 and 5. The learned trial Court framed the following ‑

(1) Whether the plaintiffs have superior rights of pre‑emption?

(2) Whether 'the ostensible sale price Rs.1,50,000 was bona fidely fixed or actually paid? OPD.

(3) What was the market value of the suit land? OPPs.

(4) Whether the plaintiffs are estopped to file the suit by conduct? OPD.

(5) Whether decree dated 16‑3‑1982 passed by Collector Mianwali in favour of defendants No.3 to 5 is Collusive against facts as such inoperative on the rights of the plaintiffs? OPP.

(5‑A) Whether this Court lacks jurisdiction to set aside decree passed by the Collector in favour of rival‑pre‑emptor in view of preliminary objections No.2 and 3? OPD. (framed on 8‑1‑1983).

(6) Relief.

Issues Nos.1, 4, 5 and 5‑A were decided in favour of respondents No.1 to 3 while issues No.2 and 3 were decided to the effect that a sum of Rs.1,50,000 had been actually paid as price of the suit land. The learned Senior Civil Judge, Mianwali, therefore, decreed the suit of respondents No.1 to 3 on payment of Rs.1,50,000 vide judgment and decree dated 13‑11‑1984. This appeal has been filed to challenge the said judgment and decree. We have perused the record and have heard arguments.

2. The learned counsel for the appellants has pressed only two points in arguments; first that the right of pre‑emotion of the appellants is superior most because the appellants were tenants in the land in dispute at the time of the sale in dispute and secondly that the suit of respondents No.1 to 3 was not maintainable in view of the provisions of law contained in subsection (2) of section 12 of the Code of Civil Procedure, 1908. No other point is pressed by him. So far as the first point is concerned, the only evidence on record on which the appellants rely is the Khasra Girdawari, Exh. P.4. There is no other evidence to support the said document. The names of the appellants appeared in the Girdawari made on 14‑4‑1981 and 15‑4‑1981 and not in any earlier Girdawari. The land in dispute was sold on 1&‑3‑1981. The said Girdawari/inspection was made on 14‑4‑1981 and 15‑4‑1981 i.e. more than one month after the sale. There is no doubt that at that time or by that time respondents No.4 and 5 had become owners of the suit land. If they gave the land to the appellants after the said sale that will not mean that the appellants were tenants in the land in dispute at the time of the sale or before the same. The learned counsel for the appellants has contended that the inspection made on 14‑4‑1981 and 15‑4‑1981 is to be interpreted to mean that the appellants were in possession of the suit land when the crop which was inspected on the said date was sown. The relevant crop at that time was of Rabi 1981. It was sown in about December, 1981. Therefore, it was sown before the sale in dispute was made. There is no evidence on record to show that the said crop was sown by the appellants or that it was sown by them as tenants of Mist. Kamal Khatoon. In Riaz Ahmad v. Um‑e‑Salma (1985 S C M R 1740) it has been laid down by Hon'ble the Supreme Court that the girdawari has a presumption so far as it relates to the date of inspection and it does not carry a presumption that the crop was sown by the person who was in possession at the time of inspection. Therefore, in view of the law laid down therein it cannot be taken or presumed A that the appellants had sown the crop of Rabi 1981. Apart from that, as already said, the appellants have produced no evidence whatsoever, oral or documentary, to show that they were in possession of the suit land at the time of the sale in dispute or at the time of sowing of crop of Rabi, 1981 or before that. Accordingly the appellants were not tenants in the suit land at the time of the sale in dispute.

3. The learned counsel for the appellants has also pointed to the entry of Killa No.1 of square No.35 in Khasra Girdawari Exh. P.4 in which Rab Nawaz, appellant No.1 is shown as tenant and similarly he is a tenant in some other numbers as well. He lost his right. if any, by joining appellants No.2 and 3 with him, who were not tenants in any portion of the land at the relevant time. The right of Rab B Nawaz, appellant No.1, if any, is lost by the principle of sinker. Accordingly, the appellants had no right of pre‑emption at all ‑ On the other hand, respondents No.4 and 5 are admittedly brothers of Mst. Kamal Khatoon, the vendor and, therefore, their right, of pre‑emption is obviously superior. The finding of the learned trial Court on issue No.1 is confirmed.

4. The appellants filed their suit on 14‑2‑1982 and a consent decree was passed in their favour on 16‑3‑1982. The vendees not only confessed judgment but also stated that they had already received whole of the pre‑emption money and that even the 115th of the pre‑emption may be refunded to the appellants. By that time the suit of respondents No.1 to 3 had already been filed on 10‑2‑1982. The way in which the said consent decree was obtained during the pendency of the suit of respondents No.1 to 3 itself shows that the suit was filed collusively and similarly the decree was obtained through collusion between the appellants and the vendees. The learned counsel for the appellants has argued that under subsection (2) of section 12 of the Code of Civil Procedure, 1908 respondents No. 1 to 3 could not challenge the decree in their favour through the present suit and they had to file an application before the Collector for setting the same aside on the grounds mentioned in section 12(2) ibid. The decree in favour of the appellants was passed on 16‑3‑1982 while the present suit was filed by respondents No.1 to 3 on 10‑2‑1982 i.e. more than a month before the said decree was passed. When the decree had not been passed at the time of the filing of their suit their suit could not be barred by the provisions of law contained in section 12(2) ibid. The said section provides for attacking of decrees which have already been passed and does not provide for decrees which may presumably be passed in future. Therefore, the appellants could not attack the decree dated 16‑3‑1982 in their suit filed on 10‑2‑1982. As their suit was already pending since before the said date they had no need of attacking the decree dated 16‑3‑1982 through a separate application. In these circumstances the provisions of law contained in section 12(2) ibid do not apply to this case.

6. The learned counsel for the appellants had contended that the plea of collusion amounts to a plea of fraud. In this respect he has referred to Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others (P L D 1984 Lahore 396) in which collusion and, fraud have been compared. Apparently the said ruling can mean to ,assimilate collusion with fraud. However, on a deeper look into the same and especially into the meanings of collusion mentioned therein it will be seen that it has not been held that collusion is always a fraud. Collusion can be for a noble cause or a noble purpose and collusion can be for a bad purpose or a bad motive. If it is for defrauding some one, collusion is fraud otherwise it is not so. In the present case there was collusion between the appellants and the vendees to retain the land in between them so as to deprive respondents No.1 to 3 from enforcing their pre‑emptive right. No fraud was played directly on respondents No.1 to 3. Accordingly, the collusion between the appellants and respondents No.4 and 5 for obtaining the decree dated 16‑3‑1982 did not amount to fraud within the meaning of section 12(2) ibid. Therefore, respondents No.1 to 3 were not bound to challenge the said decree under section 12(2) ibid.

7. The learned counsel for the appellants has laid stress on the plea that the Collector is a Civil Court when he decides a case on pre‑emption and there is no dispute or doubt about this legal position. If the case was to fall within the four corners of section 12(2) ibid an application under section 12(2) C.P.C. would lie before the Collector; but this case is different. Respondents No.1 to 3 claimed their right of pre‑emption on the ground that they were the brothers of the vendor. Their said plea could not be raised before or adjudicated upon by the Collector. In other words the Collector had no jurisdiction to deal with a case in which such a plea was raised. He has a limit exclusive jurisdiction for dealing with cases of pre‑emption in which the right of pre‑emption is claimed vu the sole ground of tenancy. Therefore, on that ground to respondent No. 1 to 3 were not legally required to 12(2) ibid as the Collector could not decide that matter. In view of all that discussion, the suit of respondents No.1 to 3 was not hit by Me provisions of law contained in subsection (2) of section 12 of the Code of Civil Procedure, 1908. The findings of the learned ,trial Court on issues No.5 and A are also confirmed.

8. As a result, the appeal is dismissed. Due to involvement of G law points therein the parties are left to bear their own costs throughout.

A. A. /R-76/L Appeal dismissed.