NOOR Versus Mst. SATTAN

SHAHID WAHEED, J.--- Challenge in this second appeal under section 100, C.P.C. is to the judgment and decree dated 27-11-2004 passed by the learned Additional District Judge, Khushab, who while setting aside the judgment and decree dated 29-7-2004 passed by the learned Civil Judge Ist Class, Noorpur Thal, District Khushab, has decreed the respondent No.1's suit for possession through pre-emption.

2. Briefly the facts giving rise to this appeal are that the appellants and respondent No.2, Nazar Muhammad, purchased the suit land from Muhammad Iqbal and Muhammad Hayat both sons of Gama vide Mutation No.221 attested on 26-1-1974 for a consideration of Rs.56,500. Mst. Sattan claiming herself collateral of the vendors and co-sharer in the suit land as against the vendees, that is, present appellants and respondent No.2, instituted a suit for possession through pre-emption asserting therein that the land in fact was sold for a consideration of Rs.10,000. In response to summons, the appellant and Nazar Muhammad, respondent No.2, entered appearance before the learned Trial Court and filed their contesting written statements taking preliminary objection, inter alia, of bar of limitation and on merits controverted the assertions qua the sale price and superior right of Mst. Sattan (pre-emptor).

3. On pleadings of the parties the learned Trial Court framed the following issues:--

(1) Whether the suit is incorrectly valued for the purpose of court fee and jurisdiction? If so what is the correct valuation for both the purposes? OPD

(2) Whether the suit is time barred? OPD

(3) Whether the suit is for partial pre-emption? If so its effect? OPD

(4) Whether the plaintiff has got no superior right of pre-emption as against the defendants? OPD

(5) Whether the ostensible sale price of Rs.56500 was fixed in good faith or actually paid by the defendants? OPD

(6) In case of non proof of issue No.5 what was the market value of the suit land at the time of its sale? OPD

(7) Relief.

4. Parties to the suit in support of their respective claims adduced oral as well as documentary evidence before the learned Trial Court. The learned Trial Court after recording evidence decreed the suit vide judgment and decree dated 26-3-1980. Only Nazar Muhammad, respondent No.2, being dissatisfied with the judgment and decree dated 26-3-1980 filed an appeal before the learned Additional District Judge, who accepted the same vide judgment and decree dated 24-6-1989 and dismissed the suit. Mst. Sattan, respondent No.1, assailed the vires of the judgment and decree dated 24-6-1989 before this Court through R.S.A. No.78 of 1989 and the same was allowed vide judgment and decree dated 8-11-2001 (Exh.P34). Nazar Muhammad/respondent No.2 filed Civil Appeal No.2434 of 2001 before the Hon'ble Supreme Court of Pakistan and challenged the legality of judgment and decree dated 8-11-2001 passed by this Court in R.S.A. No.78/89. The Hon'ble Supreme Court vide order dated 1-3-2002 (Exh.P.32) with the consent of the parties disposed of the appeal and remitted the case to the learned Trial Court for recording evidence in affirmative as well as in rebuttal. Consequent upon order dated 1-3-2002 (Exh.P.32) passed by the Hon'ble Supreme Court, the learned Trial Court after recording evidence dismissed the suit vide judgment and decree dated 29-7-2004. Mst. Sattan, respondent No.1, assailed the vires of judgment and decree dated 29-7-2004 before the learned Additional District Judge who vide judgment and decree dated 27-11-2004 accepted the appeal and decreed the suit. Hence, this second appeal.

5. Mr. Mehdi Khan Chauhan, learned counsel for the appellants, in support of this second appeal submits that right of pre-emption which was un-inheritable stood extinguished with the death of pre-emptor and her legal heirs though brought on record after her death would be disentitled to continue with the case; that the decree dated 26-3-1980 passed by the learned Trial Court which was subsequently affirmed in R.S.A. No.78 of 1989, in favour of Mst Sattan, stood vanished when Hon'ble Supreme Court vide order dated 1-3-2002 (Exh.P32) remitted the matter to the learned Trial Court for recording affirmative evidence and rebuttal evidence and, therefore, as per principle laid down in case of Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) no decree could be passed as the Punjab Pre-emption Act, 1913 stood ceased to exist after 31-7-1986; that Mst. Sattan instituted a suit with mala fide intention as she had no money at the time of filing suit and this fact finds corroboration from her application moved under section 22 of the Punjab Pre-emption Act, 1913 seeking permission for substitution of order for payment of Zar-e-Punjam with security; that one of the vendee namely Abdul Rahim was minor and no next friend was appointed when the order for deposit of security equivalent to Zar-e-Panjam was passed and, therefore, order to the extent of minor was void and thus the suit for partial pre-emption was not maintainable; that suit was barred by time; that impugned judgment and decree is not sustainable for the reasons that it is based on evidence which was recorded prior to remand order dated 1-3-2002 (Exh.P32); and, that Mst. Sattan was not collateral of the vendor and, therefore, could not maintain a suit for pre-emption.

6. Conversely, Sh. Naveed Shehryar, learned counsel for respondent No.1, supports the judgment and decree passed by the learned Additional District Judge and contends that instant appeal is not maintainable as the same has not been filed by all vendees whereas sale was indivisible. However, learned counsel for respondent No.2 supports the arguments of learned counsel for the appellants.

7. I have heard learned counsel for the parties and perused the record.

8. Mst. Sattan instituted a suit for possession through pre-emption. During the pendency of this R.S.A. No.207 of 2004 pre-emptor/plaintiff, Mst. Sattan, died and as a result thereof her legal heirs were impleaded as respondents. In view of this fact, learned counsel for the appellants raised a preliminary objection that the second appeal is a continuation of the suit and, therefore, right of pre-emption which was un-inheritable stood extinguished with the death of pre-emptor and her legal heirs though brought on record after her death would be disentitled to continue with the case. I am afraid this preliminary objection has no force. The right of pre-emption runs with the land and is not personal initially, it turns out to be personal for the purpose of its enforceability in a Court of law, right from time of sale of the property till the date of decree in favour of the pre-emptor. In other words, the right optimizes to be personal to a pre-emptor until a decree is passed in his favour and, during this interregnum; this right is neither transferrable nor inheritable. In such a situation if the pre-emptor dies before obtaining a decree in his favour in the Trial Court or as the case may be, the appellate or revisional Court, his right of pre-emption shall remain exclusively personal and shall not survive to his heir. But no sooner is a decree passed in favour of the pre-emptor then the right becomes a proprietary one and capable not only to be transferred but to be inherited as well. This view finds corroboration from judgment rendered in the case of Ram Sahai v. Gaya (1884) 7-ALL.107 and Arshad Iqbal through L.Rs. v. Abdul Qayyum Khan Babar (1990 CLC 1883).

9. It is next contended by the learned counsel for the appellants that the decree dated 26-3-1980 passed by the learned Trial Court in favour of Mst. Sattan stood vanished or ceased to exist when Hon'ble Supreme Court vide order dated 1-3-2002 (Exh.P.32) remitted the matter to the learned Trial Court for recording affirmative evidence and rebuttal evidence and, therefore, as per principle laid down in the case Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) no fresh decree could be passed as the Punjab Pre-emption Act, 1913 stood ceased to exist after 31-7-1986. In support of his contention learned counsel for the appellants relied upon the case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287). The contention raised by the learned counsel for the petitioner is misconceived. In the instant case initially a decree was passed in favour of the pre-emptor on 26-3-1980. The ratio of Said Kamal's case (supra) is that once a decree is passed in favour of the pre-emptor before the target date i.e. 31-7-1986 the Punjab Pre-emption Act, 1913 will apply and setting aside of the decree subsequently will not adversely affect the position. In this regard reference may be made to the case of Nazir Begum and others v. Fazal Dad and others 1999 SCMR 210 wherein Hon'ble Supreme Court of Pakistan has held that a decree passed in favour of pre-emptor before the target date i.e. 31-7-1986 will remain protected notwithstanding the fact that the same was set aside later and pre-emptor is not debarred to have the case adjudicated in accordance with law applicable before the target date i.e. 31-7-1986.

10. It is submitted that Mst. Sattan instituted the suit with mala fide intention and this fact stands established from her application which was moved before the learned Trial Court under section 22 of the Punjab Pre-emption Act, 1913 seeking permission for substitution of order for payment of Zar-e-Punjam with deposit of security of equivalent amount. Learned counsel for the appellant drew my attention towards contents of the application wherein it had been stated that pre-emptor/respondent No.1, had no money to comply with order of deposit of Zar-e-Punjam and, therefore, request was made to review the order. It is maintained that if the pre-emptor had no money at the time of institution of suit then how could she raise a plea in the plaint that had the sale of the land been offered to her she would have been in a position to pay full consideration and purchase the suit property. In this regard the learned counsel for the appellants placed reliance on an un-reported judgment passed by the Hon'ble Supreme Court of Pakistan in the case of "Muhammad Qasim and others v. Mushtaq Hussain and 10 others" (C.Ps. Nos. 771-L and 772-L/1999). I am not inclined to accept this contention for the reasons: firstly, that it was not the case of the vendee that pre-emptor had no amount with her to pay the decretal amount at the time of institution of suit as this plea was not taken in the written statement; secondly, the vendee made no efforts to get an issue framed to this effect and it is settled principle of law that if a party does not claim any issue then the plea, if any, stands abandoned. In this regard reference may be made to the case of Atta Hussain Khan v. Muhammad Siddique Khan and others (1979 SCMR 630); thirdly this plea was not taken in the first round of litigation upto Hon'ble Supreme Court; fourthly, no objection to this effect was taken before the learned Trial Court and the learned lower Appellate Court, hence this objection at this stage cannot be appreciated; and lastly, challan forms (Exh.P28 and Exh.P29) show that the entire decretal amount has been deposited by the pre-emptor in accordance with decree dated 8-11-2001 passed by this Court in R.S.A. No.78 of 1989. In view of above the judgment cited by the learned counsel for the appellant is not attracted to the facts of the instant case.

11. Learned counsel for the appellant next contends that one of the vendees/appellants, namely, Abdul Rahim was minor and the suit was filed against him without next friend and thus the order for submission of security equivalent to Zar-e-Punjam was illegal and void. The suit was thus for partial pre-emption and was not maintainable. It is true that Abdul Rahim was minor at the time of institution of suit but later on his father, Ismail, was appointed guardian ad litem before the learned Trial Court vide order dated 22-7-1975. He filed written statement on behalf of minor but no objection to this effect was taken. Subsequently, after the remand order dated 1-3-2002 (Exh.P.32) passed by the Hon'ble Supreme Court, Abdul Rahim filed Writ Petition No.2745 of 2003 before this Court seeking permission to file a written statement but this was not allowed and writ petition was dismissed vide order dated 11-2-2004. This objection in the given facts and circumstances of the case is not fatal as apex Court in the case of Muhammad Salim v. Suleman (2005 SCMR 929) has repelled such type of objection being hyper-technical.

12. Another objection regarding limitation was canvassed with vehemence by the learned counsel for the appellants. Question of limitation was specifically taken in written statement. Learned Trial Court framed issue but as per contention of the learned counsel for the appellants the Courts below did not appreciate evidence available on record. In support of this preliminary objection, learned counsel for the appellants submits that oral sale between the parties was completed in July 1973 and possession of the suit land was given to the vendees/appellants and respondent No.2 and it was for this reason that one of the vendees, Nazar Muhammad, respondent No.2, was shown in crops inspection report made by Halqa Patwari on 23-10-1973, as tenant Bakhial Bai. In order to substantiate this plea the learned counsel for the appellant took me to the statement of Ghulam Rasool (D.W.2) who has stated that the appellants/vendees got possession of the (sic) before the entry of mutation i.e 29-11-1973. Learned counsel submit that in view of statement of D.W.2 it becomes clear that the appellants got possession of the suit land somewhere in July 1973 and, therefore, the suit filed by respondent No.1 was barred by time. This objection is devoid of any force. Khasra Girdawari (Exh.D1) relates to the period of Kharif 1973 to Rabi 1977. Nazar Muhammad, respondent No.2 has been recorded as tenant Bakhial Bai in Kharif 1973. This was followed by entry in Rabi 1974 wherein only Nazar Muhammad has been shown as in self cultivating possession whereas sale was made in favour of 8 persons i.e. appellants and respondent No.2. It is pertinent to mention here that Khasra Girdawri (Exh.D1) does not bear any date. Now in this perspective the statement of Ghulam Rasool (D.W.2) is examined. Ghulam Rasool (D.W.2) states that possession of the land was taken 4/5 months before mutation was entered. He, however, denied the suggestion that the possession was taken by them after the statements were recorded in the mutation. This statement is negated by Khasra Girdawari (Exh.D1) wherein only Nazar Muhammad/vendee has been recorded as tenant. There is no other evidence that pursuant to sale and before the attestation of mutation, possession was delivered to the vendees/appellants and respondent No.2 and, therefore, the entry of Bakhial Bai does not lend any help to the appellants. There is yet another angle to address the question of limitation. Learned Civil Judge vide judgment and decree dated 29-7-2004 though dismissed the suit yet held the same within limitation. The appellants did not file any cross objection regarding findings on the issue of limitation. It is a matter of record that only Mst. Sattan filed an appeal calling in question the judgment and decree of the learned Trial Court. Hon'ble Supreme Court of Pakistan in the case Khairati and 4 others v. Aleemud Din and another (PLD 1973 SC 295) has held that when no cross objection is filed with regard to finding of any issue then the same becomes final and cannot be agitated. In the instant case learned Additional District Judge has also given a finding that the suit is within limitation but the appellants have not taken any ground in the instant RSA regarding the bar of limitation. Hence, in this perspective objection regarding limitation is overruled.

13. Learned counsel for the appellants also made an attempt to challenge the vires of the impugned judgment on the plea that the same is based on the evidence recorded prior to remand order dated 1-3-2002 (Exh.P.32) passed by the Hon'ble Supreme Court of Pakistan. Learned counsel for the appellant submitted that the Courts below while passing the judgment and decree could not take into consideration the evidence which was recorded prior to 1-3-2002 as the apex Court in its order directed the learned Trial Court to record the evidence in affirmative and in rebuttal and then decide the case meaning thereby the Hon'ble Supreme Court directed the learned Trial Court to conduct a de novo trial. In this regard he placed reliance on the judgment rendered in the case of Imam Bakhsh and others v. Ghulam Nabi and others (1999 SCMR 34). The case of Imam Bakhsh (supra) does not support the contention raised by the learned counsel for the appellants as in that case the Hon'ble Supreme Court upheld the order of the Majlis-e-Shoora whereby a direction was issued to the Qazi for " " and the words" " were interpreted as de novo trial whereas in the instant case Hon'ble Supreme Court vide order dated 1-3-2002 (Exh. P.32) did not pass any order for de novo trial but only directed to record evidence in affirmative and in rebuttal and it did not mean that the learned Trial Court was precluded to consider the earlier evidence available on record. Wherefore, this objection is also bereft of merit and is rejected.

14. Now a stage has come to examine pivotal issue i.e. whether Mst. Sattan was collateral of the vendor and, therefore, could maintain a suit for pre-emption. Learned counsel for the appellants in this respect submits that the pre-emptor had claimed her right of pre-emption on the basis of " ". In this regard he submits that collateral is a person who relates to one through descendant from common ancestor in male line and females are not considered as collateral; and, respondent No.1 as per Islamic Law of inheritance is neither sharer nor residuary and, therefore, was not entitled to claim superior right. This plea also does not hold water. It is established through evidence that Mst. Sattan was daughter of Shahbaz who was son of Gulab alias Gulla whereas vendor, namely, Iqbal and Hayat are sons of Gama who is son of Gulla. Thus, Sattan was the first cousin of the vendors. In other words, the vendors were Chachazad of Mst. Sattan. The defendants/appellants has placed on record Exh.D11 wherein a pedigree table has been recorded and perusal thereof supports the above stated relationship between Mst. Sattan and vendors. Since Exh.D11 was document of the defendants and they got it exhibited and, therefore, the appellants could not take any exception thereto as per principle laid down in the case of Federation of Pakistan v. Raja Fazal Dad Khan (PLD 1954 Lahore 634). Moreover, it is an established proposition of law that superior right of pre-emption in terms of section 15 of the Punjab Pre-emption Act, 1913 is to be determined in the order of succession in between the contesting parties. If there is a successor who is higher in order of succession but does not pre-empt the sale, status of such person is irrelevant and does not debar or exclude any other person from agitating his right of pre-emption even if he is lower in the order of succession. The term "order of succession" under which persons inter se would be entitled to inherit, and if a person nearer in order of succession does not seek to pre-empt the sale, the person next in succession is entitled to do so, and such person shall have the superior right of pre-emption as opposed to an utter stranger. Such is the dictum of law laid down in the cases reported as Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879) and Muhammad and another v. Muhammad Yar and another (PLD 1986 SC 231), Muhammad Shafi and others v. Muhammad Hussain and another (2006 CLC 899) and Aftab Ahmad Khan and others v. Ghafoor Ahmad and others (PLD 2009 Lahore 473). In view of above stated relationship and principle of law. Mst. Sattan becomes collateral and could legitimately claim superior right for instituting a suit for pre-emption.

15. There is another aspect of the case and that is with regard to maintainability of this second appeal. The present appeal has been filed by seven vendees. Nazar Muhammad, co-vendee/respondent No.2 has opted not to challenge the decree dated 27-11-2004 passed by the learned lower Appellate Court. Both the learned counsel concur that in view of principle laid down by the Hon'ble Supreme Court of Pakistan in the case of Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140), the sale in the instant case is not divisible as the amount contributed by eight vendees has not been specified qua each vendee. In view of the principle laid down by the apex Court in the case of Sher Muhammad v. Muhammadi and others (1981 Law Notes 214) if the transaction of sale is not divisible then filing of appeal by some of the vendees will not be competent. This view has been followed in Nazar Muhammad and others v. Sami Khan and others (1984 CLC 305) and Ghulam Muhammad and 5 others v. Shamim Ahmad and 5 others (PLD 2003 Lahore 245).

16. In view of above, this regular second appeal is dismissed with no order as to costs.

C.M.No.1-C-06

17. This is an application under Article 84 of Qanun-e-Shahadat Order, 1984 for comparison of thumb impression of respondent No.1/plaintiff affixed on the suit filed by her as well as thumb impression affixed on the appeal filed on 30-11-1974, 2-12-1974 and 3-8-2004 so as to establish preliminary objection with regard to cause of action. This application is bereft of any merit and substance for the reasons: firstly, no objection to this effect was taken in the written statement; secondly, Mst. Sattan appeared before the learned Trial Court and got recorded her statement and the question about thumb impression was not put to her during the course of evidence; and, thirdly, this application smacks of mala fide as the same has been filed after the death of Mst. Sattan. Besides above, the Hon'ble Supreme Court of Pakistan has repeatedly held that the omissions of thumb impressions or signatures on the appeal or power of attorney are not fatal defects. In the instant case the appellants have taken this objection for the first time before this Court and that too after remand from the apex Court. At this belated stage contention raised in the application would not advance the cause of the appellants and, therefore, this application is dismissed.

SAK/N-67/L Order accordingly.