NOOR MUHAMMAD Versus ALI MUHAMMAD

1. Plaintiffs are in civil revision before this Court. It arises out of a pre‑emption suit. A few facts must be stated to render intelligible the questions which fall for decision in this case. 52 Kanals, 12 Marlas of land situate at Mauza Pindi Saidpur, Tehsil Pind Dadan Khan, belonged to Mst. Mastooran and others. By deed of sale registered on 19‑7‑1983, this piece of land was sold by them to one Ali Mohammad at the sale price of Rs.40,000. Noor Muhammad, Ghulam Muhammad sons of Channan claimed pre‑emption in respect of this sale on the grounds of being co‑sharers in the land and owners of the estate. Suit was instituted on 6‑6‑1984. In course of its trial, it was discovered that one Fazal Ahmad, real brother of Ali Mohammad vendee of the land in suit, on the basis of his tenancy rights, had also filed a pre‑emption suit in the Court of Collector and had obtained a consent decree on 17‑6‑1986. Consequently, plaintiffs filed an application for his impleadment in the suit. Application was allowed on 31‑1‑1985 and amended plaint after impleading the rival pre‑emptor was submitted in Court. On the defence submitted by the defendants, learned trial Judge took the view that he had no jurisdiction to go behind the consent decree passed by Collector in the pre‑emption suit filed under para. 25 of the Land Reforms Regulation 1972 and dismissed the suit on 25‑11‑1985. This order was challenged in appeal before District Judge, Jhelum. Appeal was marked to Additional District Judge, Jhelum who took the view that since rival pre‑emptor Fazal Ahmad had not been impleaded as respondent in the appeal within the period limited by law, appeal was imperfectly constituted and dismissed the same on 27‑1‑1986. Plaintiffs sought review of this order and filed an application on 23‑3‑1986. Alongwith petition for review, an application under Order I, Rule 10, C.P.C. for permission to implead Fazal Ahmad was also put in. An application for condonation of delay was also filed. By order, dated 7‑4‑1986, review was declined. Against order of learned Civil Judge, dated 25‑11‑1985 and those of learned Additional District Judge passed on 27‑1‑1986, 7‑4‑1986, plaintiffs have filed this petition praying that these orders be set aside and case be decided on merits.

2. Learned counsel for the parties have been heard at length. Records have also been examined. On consideration, this revision is bound to succeed. Plaintiffs claimed pre‑emption on two grounds; (1) They are co‑sharers in the land; (2) and were owners of the estate. On these two grounds, they filed the suit in the Civil Court, which alone was competent to try it. Fazal Ahmad claimed that he was tenant in possession of the land in suit and filed a pre‑emption suit in the Court of Collector on 6‑6‑1984. Ali Mohammad vendee conceded his claim and a consent decree was passed in favour of the pre‑emptor on 17‑6‑1984. Para. 25 of Land Reforms Regulation 1972 gave first right of pre‑emption to a tenant in respect of land comprised in his tenancy but did not provide a separate forum for the enforcement of pre‑emption. Consequently, pre‑emption suits filed on the grounds enumerated in section 15 of Punjab Pre‑emption Act as also by tenants were entertained and adjudicated upon by civil Courts. However, by Land Reforms (Amendment) Act, 1976, forum for entertaining and deciding the pre‑emption suits by tenants was altered and exclusive jurisdiction for decisions of such suits was conferred upon the Collector, within whose jurisdiction the land in respect of which right of pre‑emption was claimed was situated, and all such pending suits stood transferred by operation of law to the file of Collector concerned. Before this amendment was brought about as to the forum, section 28, Punjab Pre‑emption Act, 1913 applied which said that when more suits than one arose out of the sane sale, plaintiffs in each suit shall be joined as defendant in the other suit and in deciding the A suits, Court shall state the degree of priority inter se respective claimants in the decrees to be passed in the suits. Real object of impleading the rival pre‑emptor is not to enforce any right of pre‑emption against him but merely to establish that he has no right. of pre‑emption superior to his own and to bind him by the decree eventually to be passed in plaintiffs' favour, if he succeeds in establishing his right of pre‑emption as against the other defendant and also to show that the rival claimant has no superior rights to which the Court can be asked to give effect. It is correct and true ground on which Fazal Ahmad was impleaded in the pre‑emption suit filed by the petitioners. In the result of the consent decree, it' became necessary to adjudicate between the claims of rival claimants inter se as well as between their claims and those of the original vendee. To do this finally, and effectually, each claimant had to be impleaded in either suit so as to make all parties concerned bound by the decree in each suit and convenient mode of procedure provided by section 28 was to hear both the suits simultaneously and then pronounce a judgment and decree which would provide for all exigencies of occasion including the contingency of the claimant with better right not caring or omitting to prosecute his rights by execution of the decree in his favour. With the alteration of forum, one set of pre‑emption suits based on grounds enumerated in section 15 were to be adjudicated upon by civil Courts and the other kind of suits filed by tenants to be dealt with by the Collector with altogether a different hierarchy though as acting Civil Courts. In this situation, simultaneous hearing of pre‑emption suits or their consolidation became no longer possible. That notwithstanding, spirit and the object behind section 28 could not be ignored. It is obvious that the judgment is binding upon parties to it or their privies. Non‑parties are not held bound by it. There are number of decided cases under section 28, Punjab Pre‑emption Act, which hold that the effect of the imperative provision of this section is that if one of the connected pre‑emption suits is decided in the absence of the plaintiffs in the other suit, decision in it cannot be found binding on that plaintiffs. The point is so obvious that no authority is required to support it, but if one is required, reference can be made to Mehmood Khan v. Khan Muhammad and 5 others P L D 1973 Lah. 806. Suit filed by Fazal Ahmad was decided on consent of the vendee within a couple of days of its institution.) Plaintiffs claimed that the consent decree besides proceeding on incorrect factual matrix was also product of collusion between two) brothers aimed at harming the plaintiffs' interest. These allegations were neither put in issues nor enquired into by the trial Court B which proceeded to divest itself of its jurisdiction, admittedly, possessed by it to make inquiry and decide the controversy finally. Claim of Fazal Ahmad, as said above, arose out of a consent decree. No finding was recorded by Collector that Fazal Ahmad was actually a tenant of the land in suit. Even if such a conclusion was recorded. how could it be held binding on a non‑party who had no chance of rebuttal. Indubitably, for complete and effective adjudication of the rival pre‑emptor's claim, Fazal Ahmad was a necessary party to be joined in the pre‑emption suit filed by plaintiffs. If the purpose and[ the object behind the impleadment of rival pre‑emptor as a party is looked at from the point of view expressed in the preceding paragraph, it becomes clearly a case not specifically provided for elsewhere in the Limitation Act and shall clearly fall within the purview of Article 120 which prescribes a period of 6 years. Therefore, period of limitation as between rival pre‑emptors is that prescribed by Article 120 of the Limitation Act and one pre‑emptor can, therefore, be impleaded as a co‑defendant in the suit of other within a period of limitation prescribed by Article 120 i.e. 6 years. There are number of authorities t support this statement and it is accepted as correct by Mr. Abdul Aziz Bhatti, Advocate also. It is true that rival pre‑emptor Fazal Ahmad was not impleaded as respondent in appeal filed in the Court of District Judge within the period prescribed by law. It may also b true that, in his absence, appeal may be found to be imperfectly constituted. But more fundamental question falling for determination is whether the defect could be cured and rival pre‑emptor impleaded as party in the appeal, despite afflux of the limitation period. Mr. D Bhatti relied on Abdul Qadir and 5 others v. Muhammad Umar and others P L D 1987 Lah. 232 and argued that omission was fatal t the appeal and that it was rightly dismissed. As against this, Mohammad Munir Paracha, learned counsel for the petitioners referred to Syed Rahat Hussain Zaidi v. Settlement Commissioner and others 1987 CLC 2495 a Division Bench judgment of this Court and submitted that rival pre‑emptor could be added by the Appellate Court in exercise of its sup motu powers under Order 1, Rule 10, C.P.C. without offending either law of limitation or any mandatory procedural requirement of the Code of Civil Procedure. In the cited Division Bench case, it has been ruled that section 22 Limitation Act, 1908 is applicable only to the suits and not to appeals as there is no parallel provision in regard to appeals within Limitation Act or that a plaintiffs E and the defendant shall also include an appellant and respondent also. On this view, it was held that Appellate Court had the discretion to substitute or add an appellant or respondent even after the period of limitation prescribed for an appeal had expired. This being a Division Bench judgment is binding upon me sitting singly. In view of this state of law, decision impugned in revision cannot stand. After having held so, there were three courses open to me. First course was that since the appeal was not properly disposed of, it be sent to District Court for deciding of it afresh including the prayer for adding the rival pre‑emptor as respondent in the appeal. Second course was to implead the rival pre‑emptor as respondent and remit the case to District Court for deciding of the points raised in the memorandum of appeal and the third course was that impugned orders including that of the trial Judge may be set aside and the case remanded to him for deciding of the basic issues touching the superior right of pre‑emption claimed by the plaintiffs and the effect of the consent decree thereon after permitting the parties to lead evidence in support of their respective versions. After full consideration, I have decided to adopt the second course which in the circumstances of the present case appears to be a proper and a better course. It shall also provide an opportunity to the parties to avail of a remedy in first appeal and to the learned Judge to examine their contentions and give decision thereon. Therefore,. Fazal Ahmad rival pre‑emptor is allowed to be brought on record as a co‑respondent in the appeal.

3. For the foregoing discussion, orders, dated 27‑1‑1986, 7‑4‑1986 of learned Additional District Judge dismissing the appeal and declining` review of his earlier order are set aside and the case is remitted to learned District Judge, Jhelum for deciding it afresh in accordance with law. Learned District Judge shall allow two weeks to the appellants before him to file the amended memorandum of appeal. Records be returned to his Court. Parties have been directed to appear before him on 14‑5‑1988. Costs of this revision shall be borne as incurred.

4. A.A./N‑125/L Case remanded.