GHULAM MUHAMMAD Versus SHAMIM AHMAD KHAN

Vide registered sale‑deed dated 6‑10‑1971, the appellants purchased the suit land measuring 99‑Kanals described in the heading of the plaint for a consideration of Rs.35,000. It will be necessary to state the particulars of the vendors as also the vendees in this judgment, which are as follows:‑‑

Vendors

(1) Nawazish Ali Khan son of Sardar Khudad Khan.

(2) Kamran Nawazish Khan.

(3) Irfan Nawazish Khan sons of Nawazish Ali Khan.

(4) Mst. Sameena Asmat.

(5) Mst. Robina Asmat.

(6) Mst. Farhana Asmat daughters of Sardar Muhammad Sadiq Khan.

(7) Mst. Naz Zahoor daughter of Zahoor Elahi.

Vendees (and the shares in which they purchased the land)

(1) Ghulam Muhammad son of Noor Khan (3/4th share).

(2) Mir Zaman.

(3) Noor Zaman.

(4) Muhammad Zaman.

(5) Muhammad Nazir sons of Sher Zaman.

(6) Baza son of Muhammad. ------------- 1/4th share

2. On 5‑10‑1978, the respondent filed a suit for possession of the said land by pre‑emption. He claimed to be a collateral of the said vendors. In their joint written statement, the appellant, proceeded to reply para. 3 of the plaint containing the assertion that the respondent has superior right of pre emption as follows:‑‑

3. Inter alia, the following issue No. 1 was framed:‑‑

"Has the plaintiff a superior right of pre‑emption qua the vendees?"

4. The evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and decree dated 16‑9‑1979 subject to payment of Rs.35,000. The first appeal filed by the appellants was partly allowed by a learned. Additional District Judge, Attock, vide judgment and decree dated 24‑4‑1980 inasmuch as it was found that the respondent has no right of pre‑emption vis‑a‑vis Mst. Naz Zahoor vendor and her share was excluded.

5. Sardar Muhammad Aslam, learned counsel for the appellants contends that the bare reading of sale‑deed Exh. D.1 would show that the shares (noted above) in which the appellants purchased the land were specified in the body thereof and in the endorsement of the Registrar, as also in the body it has been stated that the sale price was being received in accordance with the said shares. Refers to the statements of D.W.2 and D.W.3 to demonstrate that no challenge was thrown to the statements to the effect that appellant No. 1 (Ghulam Muhammad) had separately paid a sum of Rs.26,250 as the price of his share. Relies on the case of Manghta Khan and others v. Mst. Hamida Begum and others (PLD 1981 Supreme Court 51), Muhammad Riaz and others v. Fateh Muhammad and others (PLD 1991 SC 1099) and Abdullah and 3 others v. Abdul Karim and others (PLD 1968 Supreme Court 140) to assert that the sale was divisible and since appellant No. 1 has been proved to be non‑occupancy tenant in the suit land, therefore, he was entitled to retrain the land to the extent of his share.

6. Ch. Afrasiab Khan learned counsel for the respondent on the other hand, argues that notwithstanding the fact that the shares of the vendees are specified in the sale‑deed, there is nothing in the said document regarding the separate payment of the price or as to whether it was contributed. Refers to Article 102 of the Qanun‑e‑Shahadat Order, 1984, to contend that the oral evidence being relied upon by the learned counsel for the appellants cannot be read vis‑a‑vis the said documents. He relies on the case of Allah Yar and others v. Ghulam Jeelani and others (1996 SCMR 662) and Mir Ahmad and others v. Attaullah alias Atta Muhammad and others (PLD 1991 Supreme Court 210) to assert that the sale on the face of the record is not divisible.

7. I have gone through the records of the trial Court with the assistance of the learned counsel for the parties. I have already referred above the material portions of the pleadings‑of the, parties. It will be seen that a plea as such was not taken that the sale is divisible and. that the vendees in accordance with their respective shares contributed the price. To my mind the vendees could not have taken such a plea in the written statement for they have pleaded that all of them were tenants in the suit land. Before proceeding further, I may state that by now it is settled law that the criteria for determining as to whether the sale is divisible or not is that (i) the shares purchased by the vendees are specified in the sale document and that (ii) the share of the price has been separately contributed and paid to the vendors by the vendees. This is the ratio of all the judgments cited above. Applying the said test to the present case. I have examined the sale‑deed Exh.D‑1. The share of appellant No.1, on the one hand i.e. 3/4th and, all the remaining appellants i.e. 1/4th stand duly specified in the body of the sale‑deed. While perusing the endorsement of the Registrar, one has to keep in mind that there are more than one vendors in this case. Before the Registrar, Muhammad Sadiq Khan and Nawazish Ali Khan, general attorneys of the vendors and Ghulam Muhammad appellant No. 1 appeared. After marking their presence and recording the acknowledgement as to the correctness of the contents of the deed, the endorsement narrates as follows:

8. In the body of the sale deed, the relevant recital is:

I may refer here the case of Manghta Khan (supra) wherein their lordship took note of the following recital in the sale‑deed:‑‑

9. As noted above by me, there were several vendors. To may mind, the term ( ﻥﺎﻜﻠﺎﻣ ﺺﺻﺣ ﺐﺳﺣ ) is relatable to the shares of the vendors because in the body of the sale‑deed, the vendors had stated that they will receive the entire amount of consideration in lump sum from the vendees at the time of registration. Thus so far as the said sale deed is concerned, nothing turns on the same in favour of the appellants. Learned counsel for the appellants refers to the case of Ghauns Bakhsh and another v. Ghulam Muhammad and another (1993 CLC 2465) to assert that in the said circumstances, the vendees can establish by evidence that each vendee had proportionately contributed towards the sale price. The said judgment thus supports the said contention of the learned counsel. Ch. Muhammad Naseem whose presence is recorded before the Registrar at the time of registration of the sale‑deed as a witness appeared as D.W.2 and has proceeded to state that Rs.26,250 were paid by Ghulam Muhammad and the balance amount was paid by Baza and his nephews and the area was purchased separately. In cross‑examination, he admitted that the said fact is not noted in the registered sale‑deed. He further stated that he did not personally know Ghulam Muhammad and that he had known the said fact because he was present at the time of registration of the sale‑deed. The witness is belied by the very contents of the said endorsement, which recorded only the presence of Ghulam Muhammad and none else. Ghulam Muhammad while appearing as D.W.3 proceeded to state that the sale took place for Rs.35,000 and that his share was 3/4th and of the other appellants was 1/4th share and in this proportion, the amount was separately paid. He was unable to state as to whether the said fact was stated in the sale‑deed or not also belied by the said endorsement wherein only his presence is recorded.

10. This is the only evidence in support of the said contention. In my view, so far as the statement of D.W.2 is concerned, it was rightly rejected. As regards D.W.3, he has not been able to explain as to how the amount was contributed and as to when and how the amount was separately paid. Ch. Afrasiab Khan, learned counsel for the respondent has cited the case of Mir Ahmad and others v. Attaullah alias Atta Muhammad and others (PLD 1991 Supreme Court 210). I may note here that this judgment was rendered by a Bench comprising of five Honourable Judges of Supreme Court. Their lordship have proceeded to observe as follows:‑‑

"Our final conclusion, after having considered the whole matter at length that in pre‑emption suits where a vendee having an equal or superior right of pre‑emption associates a stranger i.e. a person having an inferior right of pre‑emption than the pre‑emptor, the rule of sinker will apply and the pre‑emptor's suit decreed, unless the impugned sale is divisible i.e. it is a sale wherein not only the share of each vendee is specified but the amount paid towards the price by each vendee is also specified."

11. Thus, I find that the learned Courts below have very correctly held that the sale is not divisible and Ghulam Muhammad appellant No. 1 cannot be allowed to retain the land purchased by him on the ground that he is a non‑occupancy tenant herein because he has admittedly joined strangers with him.

12. Before parting with this judgment, I deem it proper to address myself to another issue. The leaned Additional District Judge has very rightly modified the decree of the learned trial Court inasmuch as it has been found that Mst. Naz Zahoor vendor is not a collateral of the respondent. However, the judgment is silent as to what is the share of Mst. Naz Zahoor and how much land is to be excluded. Learned counsel for the parties, when confronted, proceeded to state that somehow or the other Mst. Naz Zahoor is in fact a co‑owner in the land sold yet the available Revenue Record does not record her as such. However, it is an agreed position that she being co‑owner has validly sold the land. In this view of the matter, Ch. Afrasiab Khan, Advocate, suggests and Sardar Muhammad Aslam, Advocate, agrees that the rule contained in section 46 of the Transfer of Property Act, 1882, is to be applied. There are seven vendors as noted by nit above and the shares of none of the vendors stands specified. Applying the said rule, Mst. Naz Zahoor would be having 1/7th share in the land sold. The total land sold is 99‑Kanals. Her share in the land, therefore, comes to 14‑Kanals, 14‑Marlas. Thus while upholding the judgment and decree of the learned Additional District Judge, Attack, it is clarified that the respondent shall be entitled to a decree for the land measuring 84‑Kanals, 6‑Marlas, out of the suit land measuring 99‑Kanals on payment of Rs.29,505 subject to adjustment of 1/5th deposited if any. This amount, if already not deposited shall be deposited by the respondent in the trial Court on or before 31‑10‑2002, failing which his suit shall stand dismissed with costs. R.S.A. is accordingly dismissed. At the moment, the parties are left to bear their own costs.

13. The records of the lower Courts be remitted back immediately.

S.A.K./G‑227/L Appeal dismissed.