MUHAMMAD HUSSAIN Versus KHURSHID BIBI

The land in suit measuring 16 Kanals and 6 Marlas situated in Khata No. 32, Village Samla Tehsil Gujranwala, District Gujranwala, was sold by Mst. Bashiran Bibi in favour of Muhammad Hussain and Noor Muhammad appellants through registered sale‑deed dated 6‑4‑1966. The respondent Mst. Khurshid Bibi claiming herself to be the real sister of the vendor and a co‑sharer in the land in dispute filed a suit on 1‑4‑1967 for possession of the suit land through pre‑emption on payment of Rs.3,700 or the price fixed by the Court alleging that the price of Rs.6,000 mentioned in sale‑deed was fictitious. The suit was resisted by the appellants and the learned trial Court framed the following issues:‑

(1) Whether the plaint is incorrectly valued for the purposes of court‑fees and jurisdiction, if so, what is correct valuation? O. P. D.

(2) Whether the plaintiff has got superior pre‑emption right as against the defendants? O.P.P.

(3) Whether Rs.6,000 as the sale price of suit land was fixed in good faith or paid? O . P . D .

(4) If issue No.3 is not proved, then what is the market value of the suit land? O.P.P.

(5) Whether the plaintiff is estopped by words and conduct to file this suit? O.P.D.

(6) Relief.

The learned trial Court, on issue No.2 held that the pre‑emptor and vendees had an equal right of pre‑emption and as such the pre‑emptor had no superior right as against the vendees. The learned Civil Judge 1st Class, Gujranwala, therefore, dismissed the suit vide judgment and decree, dated 7‑9‑1968. The respondent filed an appeal. The learned District Judge Gujranwala‑accepted the same through judgment dated 23‑12‑1969 holding that the right of pre‑emption of the respondent was superior than that of the vendees. He, therefore, remanded the case for disposal of the same after decision on the remaining issues. The said appellate order has been challenged by the appellants through this appeal. I have perused the record and have heard arguments.

2. The documentary evidence to connect the appellants‑vendees with Mst. Bashiran Bibi, the vendor, is not sufficient enough for the purpose. However, Mst. Khurshid Bibi respondent appeared as P.W.1 and admitted that the appellants were her collaterals as also the collaterals of the vendor, Mst. Bashiran Bibi. It is not disputed that the respondent is a sister of Mst. Bashiran Bibi. Therefore, in fact the relationship of the appellants and of the respondent with Mst. Bashiran Bib! the vendor is admitted. For purposes of determi?nation as to whether the right of a pre‑emptor qua the vendee on the basis of relationship is superior or not it has to be assumed that the vendor died at the time of the sale and the vendee and the pre‑emptor were the only persons to inherit the prciperty of the vendor. Therefore, it will have to be taken that only the appellants and the respondent were the heirs of Mst. Bashiran Bibi at the time of sale. Mst. Khurshid Bibi will get half share as sharer while the appellants will get the remaining half share as residuaries. In other words the respondent/ pre‑emptor and the appellants have equal rights to inherit the property of Mst. Bashirah as they inherit her property at the ratio of k ? J. Ordinarily, when the right of pre‑emption is equal in this manner it is the pre‑emptor who has to lose the case but in this case the respondent, in para. 4, of the plaint, clearly claimed that she was also a co‑sharer in the land in dispute. Fard Jamabandi Ext. P.2 relating to Khata No.32 clearly shows that Sharaf Din, the father of the vendor and the pre‑emptor, was the sole owner of the said Khata. On his death, through mutation No.700 Ext. P 3 his property was jointly inherited by his four daughters and a widow. Therefore, they became co‑sharers in Khata No.32 and continued to be so. This means that the respondent is a co‑sharer in the Khata in which the land in dispute is situated. In Naba v. Pathana (1913 PLR 208) it has been held that when a right of pre‑emptor and a vendee as heirs is equal then the pre‑emptor will have a superior right if he also is a co‑sharer in the land in dispute. This exactly is the situation in this case. The right of pre‑emption of the pre‑emptor and the vendee is equal on the ground of being: heirs while the right of pre‑emption of the respondent is superior on the ground of being a co‑sharer in the land in dispute. This right as co‑sharer does not exist in favour of the appellants. Therefore, the finding of the learned appellate Court on issue No.2 is maintained but of course on different grounds as aforementioned.

3. The learned counsel for the respondent has conceded the sale price of Rs.6,000. Issue No.3, therefore, stands decided in favour of the appellants. No evidence was produced on issue No.l. Issue No.4 relating to market value need not be decided as the total sale price has been admitted before me. There is no cogent evidence in regard to the plea of estoppel which is the subject‑matter of issue No.5. The said issue is not pressed before me. In these circumstances the whole case can be decided here and there is no necessity of remanding the same to the learned trial Court because there is nothing to be decided by it.

4. Accordingly the judgments and the decrees of both the learned Courts below are set aside. The suit of the respondent is decreed on payment of Rs.6,000. She shall deposit the pre‑emption money less the 1/5th of pre‑emption money, if already deposited by her, in the learned trial Court on or before 18‑2‑1988 failing which her suit shall stand dismissed with costs. In case the pre‑emption money is deposited within the given period the parties shall bear their own costs throughout.

H.B.T./M‑767/L ????????????????????? ??????????????????????????????????????????????????????????????????????? Suit decreed.