GHAUS BAKHSH Versus WALI MUHAMMAD

ORDER

This petition seeks the revision of the judgments and the decrees passed by the Courts below dismissing the plaintiffs petitioners' suit for possession through pre-emption.

2. The suit land had been owned by one Abdullah Shah who had sold the same on 20-2-1973, per registered sale-deed in favour of Wali Muhammad, Shah Muhammad and Atta Muhammad (defendants I to 3). These defendants later exchanged the land with that of defendants 4 to 13 vide entry of Mutation No. 24 recorded on 3-I1-1973 (Exh. P. 3). The petitioners brought the suit on 19-2-1974, for pre-empting the original sale executed on 20-2-1973. The suit having been contested, the following issues were framed

(i) Whether the defendants have alienated the land to Karim Bakhsh and others prior to the institution of the suit who have a superior right of pre-emption qua the plaintiffs. If so, its effect 7 O. P. D.

(ii) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction ? If so, what is the reject valuation ? O. P. P,

(iii) Whether the plaintiffs have a superior right of pre-emption qua the vendee-defendant? O. P. P.

(iv) Whether ostensible sale amount of Rs. 25,000 was fixed in good faith or actually paid ? O. P. D.

(v) For non-proof of issue No. 4, what is the market value of the suit land ? O. P. P.

The findings on issues I and 3 having gone against the plaintiffs, their suit was dismissed by the trial Court on 22-12-1977 and an appeal against the dismissal failed before the District Judge on 28-6-1978.

3. Defendants 1 to 3 were strangers and had not pleaded any qualifica tion to resist the suit. Defendants 4 to 13, however, are co-sharers in Khata No. 164, as against the plaintiffs who are co-sharers in Khata No. 182. The Courts below held that as defendants 4 to 13 had equal right with the plaintiffs, they could successfully defeat the plaintiffs..: , ..

4. Mr. Sajjad Raza Jaffery, Advocate, appearing for the plaintiffs/ petitioners before me contended that defendants 4 to 13 would defeat the pre-emptors only if they could show that the exchange of the land in their favour had been effected in recognition of their superior right of pre-emption and that as the relevant Mutation No. 24 (Exh. P. 3) did not show that the exchange of the land had been brought about in assertion or recognition of such right, the defendants could not defeat the plaintiffs.

5. There are, of course, numerous authorities to support the view that if the second vendee had acquired the land by asserting his superior right he could successfully resist a pre-emptor. It would make no pre-emption, different whether the sale in favour of the subsequent vendee had been effected during the pendency of the suit or before it as long as it had been done within the limitation period. See Mool Chand and others v. Ganga Jai and others (A I R 1930 Lab. 356), Mr. Sant Kaur v. Teja- Singh (A I R` 1946 Lah. 142) and Bakhshan and others v. Haji and others (P L D 195411 J 48).

6. The actual point for determination in the present matter is whether the subsequent vendee though possessed of equal right qua the pre-emptor, cannot successfully resist the suit if the sale made in his favour was not specifically and expressly in recognition of his right to pre-empt. The answer is found in an L. P. A. decision reported as Muhammad Afzal minor through father Noor Muhammad v. Ghulam Muhammad alias Gaman (A I R 1946 Lab. 463). In this case, Noor Muhammad had sold the suit land in favour of Sher Muhammad, Dost Muhammad and Muhammad Nawaz on 14-12-1939 and the vendees had later, on 10-12-1940 gifted the land in favour of Muhammad Afzal son of Noor Muhammad vendor. Admittedly, Muhamman Afzal had possessed right to pre-empt the sale, but the contention had been that he had acquired the land by way of a gift and not in exercise of his right of pre-emption. The Letters Patent Bench had relied on the rulings in Hans Nath v. Bagho Prasad Sing (A I R 1932 P C 57) and Harbhagwan Das v. Partap Singh (A I R 1938 Lab, 242). In the first cited case, the Privv Council had observed as below

"It has been held in several cases that whore between the dates of what may be called for connivance the pre-emption sale and the institution of the suit, the pre-emptor has lost. his status as a co-sharer by the partition of the village, or the stranger purchaser has resold to another co-sharer, or has become himself a co-sharer by an undisputed purchase or by a gift, the right of pre-emption is lost."

In the second cited case, it had been held as follows

"If before the institution of the suit for pre-emption the original vendee transfers the property to a person claiming a right equal or superior to that of the pre-emptor, the pre-emptor cannot legally oust him. This principle is not confined to those cases only where the re-sale takes place in exercise of the pre-emptive right of the subsequent vendee. There is no distinction between cases where the resale takes place without an assertion of his right by the subsequent vendee because the effect in both cases is the same, that is, the purchase of the land in suit by a person possessing a right equal or superior to that of the pre-emptor and, in these circumstances, the fact that the purchase takes place in assertion of the right or otherwise is im material."

The Letters Patent Bench had come to the view that "if a person, which is in the list of defendants and is in possession of a property and is sought to be ejected from that property, whether in the exercise of a right of pre emption or otherwise, he has every right to resist the plaintiff's suit on all grounds that he can possibly raise." It was further expressed

"I am unable to see the distinction between the case of a subsequent purchaser of property from the original vendee and that of a donee or an heir taking property from the same vendee. In both cases if the subsequent acquirer has a superior right to the plaintiff'', then he can defeat the pre-emptor's suit on the basis of his own superior qualification."

7. I am in respectful agreement with this authority, and hold that it not necessary for the subsequent vendee to invariably establish that he ha acquired the property in recognition of his superior right and that if he is in fact, possessed of aright superior or equal to that of the plaintiff, he ca C defeat the latter. No interference is, therefore, called for with the decision taken by the Courts below, The revision petition is accordingly dismiss in limine.

M. Y. M.. Appeal dismissed.