RASUL KHAN Versus QALANDAR DIN

For proper appreciation of the points in the second appeal, on behalf of the unsuccessful plaintiff, reference to facts out of which the present litigation arose, is necessary. By mutation 2745 attested on 26‑4‑1971, Akbar sold 1 Kanal and 10 Marlas of land, Khasra 539 situate at Mauza Murraria, Tehsil Attock to Qalandar Din and his three brothers, at the sale price of Rs.8,000. This sale gave rise to two pre‑emption suits, one by Karam Khan and the other by Rasul Khan present plaintiff. As both the suits had arisen out of the same sale, these were consolidated for a joint trial and the plaintiff in each suit was impleaded as defendant in the other suit filed by the rival pre‑emptor. On 2‑12‑1974, parties came to a compromise, in the result whereof, first decree for pre‑emption was given to Karam Khan who was directed to deposit pre‑emption money amounting to Rs.8,000 till 4‑1‑1975, in default, second decree passed in favour of Rasul Khan, the inferior pre‑emptor, was to operate and he was directed to deposit the decretal amount viz. Rs.8,000 by or before 4‑2‑1975. In default, his suit was also to be dismissed. It is common ground that the first pre‑emptor, namely, Karam Khan complied with the terms of decree and deposited the pre‑emption money in time. This gave him title to the pre‑empted land. On 7‑2‑1975, Karam Khan filed execution. In course of execution proceedings, decree‑holder and judgment‑debtors, namely, Karam Khan and Muhammad Sadiq etc. entered into a compromise. Execution Court recorded their statements. Karam Khan stated that he had received price for the disputed land and has surrendered his rights under the decree in favour of the judgment‑debtors. On the basis of the aforesaid statement, execution Court dismissed the execution case on 11‑4‑1975. Order is Ext.P.l. On 16‑4‑1975, Rasul Khan plaintiff who was adjudged an inferior pre‑emptor, brought a suit against Karam Khan and Qalandar Din etc. to have it declared that the judgment and decree dated 2‑12‑1974 whereby first decree for pre‑emption was given to Karam Khan in the light of the later events was proved to be based on collusion and fraud and, in this view of the matter, relief was sought from the Court that the plaintiff Rasul Khan be given time to deposit the pre‑emption money and get the suit land. Copy of the plaint is Ext. D.3. On 22‑10‑1975, this suit was dismissed on the ground that proper remedy for the plaintiff was to file an application under Section 47 of Civil Procedure Code. Copy of decision is Ext. D.4. Thereafter, Rasul Khan plaintiff treating the compromise Ext. P.2/A surrendering rights under the decree dated 2‑12‑1974 by Karam Khan to judgment‑debtors as an independent sale claimed pre‑emption in respect thereof and sued to recover possession of the suit property on 10‑4‑1973. Plaint filed in the suit gave the necessary background of the litigation. It was alleged that the suit land was sold for Rs.6,000 on the payment of which, plaintiff as co‑sharer in the Khata and owner of the estate had better right. Defendants contested the suit and raised number of pleas in defence. It was pleaded that decision dated 22‑10‑1975 dismissing previous suit filed by the plaintiff operted" as res judicata; that Order II, rule 2 Civil Procedure Code was a bar to fresh suit; that the form in which the suit was brought was defective; that the plaintiff was estopped to sue. On merits, it was denied that the defendants had purchased the land at the stated consideration of Rs.6,000. However, it was not denied that Karam Khan had complied with terms of the pre‑emption decree and thereafter surrendered his rights to the defendants. What was the consideration for surrender of these rights, however, was not expressly stated in the written statement. Plaintiff filed replication and in it, reiterated his earlier stand. In the replication, it was specifically averred that the suit was neither barred by res judicata nor Order II rule 2 Civil Procedure Code.

2. Pleadings gave rise to the following issues:‑

(1) Whether statement of Karam Khan during execution proceedings dated 11‑4‑1975 amounts to sale and thus subject to pre‑emption? O.P.P.

(2) Whether plaintiff has got superior right of pre‑emption? O.P.P.

(3) What is the market value of the disputed land? O.P.Ps.

(4) Whether present suit is barred by principle of res judicata? O. P. D.

(5) Whether suit is barred by provisions of Order II, Rule 2, C.P.C? O.P.D.

(6) Whether suit does not lie in the present form? O.P. D.

(7) Whther plaintiff is estopped to bring the suit? O.P.D.

(8) Relief.

3. On examination of evidence, learned Civil Judge, Campbellpur, on 29‑1‑1977 found for the plaintiff and gave him decree for the land in suit on payment of Rs.8,000 to be deposited by him by or before 1‑3‑1977 failing which his suit was to stand dismissed with costs. Defendants preferred an appeal. Learned Additional District Judge to whose Court the appeal was entrusted for decision found that the suit for pre‑emption was barred by Order II, Rule 2, Civil Procedure Code and in this view of the matter, accepted the appeal, reversed judgment and decree of the trial Court and dismissed the suit on 9‑1‑1978. It may be noticed that learned Additional District Judge mainly adverted to Order II rule 2 Civil Procedure Code and did not record separate findings on the other issues observing that "other points are not being contested".

4. Sheikh Zamir Hussain, Advocate, on behalf of Rasul Khan appellant raises two submissions: (1) pre‑emption suit arose out of an independent cause of action and was not barred by Order II, Rule 2, Civil Procedure Code; (2) decision dated 22‑10‑1975 dismissing earlier suit filed by the appellant on the grounds of collusion and fraud to avoid decree dated 2‑12‑1974 passed in the consolidated pre‑emption suit on the ground that it was not maintainable because the remedy lay in Section 47 Civil Procedure Code precluded application of Order II, rule 2 Civil Procedure Code. In support reliance was placed on the cases in Sardari Mal v. Hirde Nath and others A I R 1925 Lah. 459 (2) ; Mohammad Khalil Khan and others v . Mahbub Ali Mian and others (AIR (36) 1949 Privy Council 78); Nazir Ahmad Serang v. Benoya Bhusan Saha and others P L D 1957 Dacca 575; Abdul Rashid v. Burmah Shell Oil Storage and Distribution Company of Pakistan Ltd. and others P L D 1966 (W.P.) Kar.

126. As against this, it was submitted by Muhammad Munir Peracha, Advocate, learned counsel for the respondents that the cause of action was same and if it gave rise to more reliefs than one, plaintiff was obliged to sue for all the reliefs and in case he omitted to sue in respect of any relief which was available to him at that time, he was precluded to sue for it afresh. In support, refers to Abdul Hakim and 2 others v. Saadullah Khan and 2 others P L D 1970 SC 63.

5. Question to be decided in the appeal is whether the present suit was covered by Order II, Rule 2, Civil Procedure Code as held by learned Judge below. Facts arising for decision are not much in dispute. In the previous suit, plaintiff had claimed that pre‑emption decree, dated 2‑12‑1974 to the extent it gave first right of pre‑emption to Karam Khan was based on collusion and fraud and this being so, plaintiff asserted that he was entitled to succeed. As observed above, this suit was dismissed on the short ground that it was incompetent because remedy lay in Section 47 Civil Procedure Code. Appeal filed; against the aforesaid decision was withdrawn. In this circumstances, plaintiff shall be deemed to have accepted the decision of the Court holding that suit was not competent because of a clear bar for it in Section 47 Civil Procedure Code. Ext. D.4 would clearly indicate that suit was not decided on merits and the plaintff was non‑suited on account of defective form of the suit. In this circumstance, when the previous suit had not proceeded to decision on merits, bar of Order II, Rule 2, Civil Procedure Code may not apply. See Sardari Mal v. Hirde Nath and others A I R 1925 Lah. 459 (2); Ghasi Ram v. Nanak Chand and another A I R 1930 Lah. 634. In the case of Sardari Mal, previous suit filed for relief of permanent injunction was dismissed on the ground that suit for specific performance only was competent. ,After dismissal, a suit for specific performance was instituted. DefencE relied on the bar of Order II, Rule 2, Civil Procedure Code. It did not succeed and on this point Court observed. "It seems to me that no authority is required for the proposition that the plaintiff who sues for a relief which the Courts cannot grant him, is not debarred from subsequently bringing a suit in respect of a relief which the Courts can grant him. There is certainly nothing in Order II, Rule 2 to the contrary". This decision evidently assists the point mooted in the appeal. To somewhat similar effect are the observations in the case of Ghasi Ram. Additionally, on the tests laid down by their Lordships of the Privy Council in Muhammad Khalil Khan and others, A I R 1949 PC 78 it can be clearly held that causes of action in both the suits were different. In para 61 of the judgment, their Lordships of Privy Council laid down certain principles for application of Order II, Rule 2, Civil Procedure Code. These are: (1) The correct test in cases falling under Order II, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit". Moonshee Buzloor Ruheem v. ShumsVnnissa Begum, (1867‑11 M.I.A. 551: 2 Sar. 259 P.C.) (supra). (2) The cause of action means very fact wich will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v . Brown, (1889‑22 Q. B. D. 128: 58 L.J.Q.B. 120) (supra). (3) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey, (1884‑14 Q.B.D. 141: 53 L.J.Q.B. 476) (supra). (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey, (1884.14 Q.B.D. 141: 53 L.J.Q.B. 476) (supra). (5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers. to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chandkour v. Partab Singh, (15 I.A. 156: 16 Cal. 98 P.C.) (supra). This observation was made by Lord Watson in z case under S. 43 of the Act of 1882 (corresponding to 0.2,11.2), where plaintiff made various claims in the same suit". Reference with advantage can also be made to decisions in AIR (38) 1951 Bombay 167; AIR 1955 Madras 545; AIR 1957 Madras 470; AIR 1959 A.J. & K 27; PLD 1968 Lahore 367; PLD 1975 Lahore 563. Judged in the light of principles laid down in the above‑decided cases, in my opinion, statement dated 11‑4‑1975 by which rights in the property were transferred to judgment‑debtors and the execution proceedings terminated, gave rise to two causes of action: (1) to avoid the decree on the ground of fraud and collusion and the other taking the arrangement as an. independent sale and to sue for pre‑emption in respect thereof. It was not a case of more reliefs than one arising out of one cause of action. On' the test laid down by the Privy Council two suits required, different evidence and on this ground also it can be said that causes were different. Mere fact, that the plaintiff could have claimed the relief of pre‑emption in the earlier suit would not go to show that causes of action were same or identical. In my view, the view of learned Additional District Judge appears to be incorrect and I cannot agree with him on the point of applicability of Order II, Rule 2, Civil Procedure Code. As the judgment of the trial Court indicated that the civil suit was contested on many grounds but the only ground on which decision was reversed in appeal was application of Order II, Rule 2, Civil Procedure Code. In regard to the remaining issues, learned Additional District Judge had clearly observed that findings thereon were not contested. Remaining issues were in regard to plaintiff's right or pre‑emption, market value of the disputed land application of principle of res judicata, maintainabilty of the suit in its present form and whether the statement of Karam Khan in execution proceedings dated 11‑4‑1975 amounted to pre‑emptible sale and also whether the plaintiff was estopped to sue. Though findings on these issues were not contested before the learned Judge below, yet in view of the arguments raised by respondents' counsel, that decision on these issues was also contended, I have decided to examine the case on these points also. First material point is whether the statement of Karam Khan surrendering his rights in property and putting an end to execution of pre‑emption decree on 11‑4‑1975 could be treated to be a sale liable to pre‑emption. Punjab Pre‑emption Act does not define sale. It only excludes certain compulsory sales viz. those made in execution of a decree for money, order of civil, criminal or of a Revenue Officer from its ambit and also says that creation of an occupancy tenancy be a landlord whether for consideration or otherwise shall also not be treated as a sale for the purposes of the aforesaid Act. Therefore, for purposes of pre‑emption, sale can be taken to be transfer of ownership rights for consideration mainly in cash. In the instant case, it was not a mere relinquishment of rights in a pre‑emption decree but was a clear case transfer of ownership rights. It was not denied that Karam Khan had deposited the pre‑emption money in time in Court. Therefore, ownership rights in the property vested in him from the date of payment made by him. It was also not denied and it could not be, that on the date when Karam Khan made the statement in Court on 11‑4‑1975, he was full owner of the disputed property. Clear import of his statement was that he had received price from the judgment‑debtors for surrender of his rights in the property to them. This arrangement, in my opinion, was nothing but a transfer of ownership rights for the price received. Pre‑emption' being right to acquire property in preference to others, to defeat it, transactions of sale are some time clothed in forms of gifts, exchanges, mortagages etc. and consideration is also stated in varyig forms, sometimes other than and sometimes alongwith cash. In the circumstances, it is open to the Court to remove the veil from the transaction, see through it and find its true character. Section Punjab Pre‑emption Act expressly confers this power on the Court. Plaintiff in his testimony as P.W.1 stated that the defendants had paid Rs.8,000 to Karam Khan for compromise. Defendant did not appear at trial to rebut this statement. An identical point arose for decision in Inzar Gul Said Anwar and another v. Hajab Gul Taza Gul and others A I R 1941 Pesh. 26), wherein Almond J.C. with whom Mir Ahmed, J. agreed observed:‑ "In the present case we are of opinion that there was an out and out sale of land by virtue of the compromise of 7th July, 1936. The land had vested in Mohammad Nabi by virtue of the decree when he deposited Rs.1,800 in Court and he was at the time of the compromise the absolute owner of the property of which he could get possession by execution. The question of whether a sale is a sale of land or not must depend on the circumstanes of each particular case. In the present case there was no genuine dispute between the parties as to their respective rights. Mohammad Nabi was absolutely entitled to get possession of the land by execution of his decree at the time when he entered into a compromise and the practical effect of his action was to sell the land to Hijabgul and Nawabgul. We therefore, reverse the finding of the learned Additional Judge on this preliminary point and remand the case under 0.41, R.23 to the Court of the District Judge for decision of the remaining points." With respect, this is correct enunciation of~ law and I respectfully agree with it. It was not denied that plaintiff was owner of the estate and the defendants did not possess any such qualification. Therefore, plaintiff had clearly superior right of pre‑emption. There is no evidence to support the pleas of estoppel and res judicata. As for market value of the suit property, plaintif had deposed that compromise had taken place for Rs.8,000. Defendants gave no evidence in rebuttal so much so none out of them appeared at the trial even to make a statement. In the circumstances, finding of the trial Court on issue No.3 is correct. As said above, except for decision on issue relating to application of Order II; Rule 2, Civil Procedure Code, findings on the rest of the issues were not contested before learned Additional District Judge. Despite clear statement to that effect in the impugned judgment, I allowed learned counsel for the parties to address the Court on these issues. This course was permitted only to avoid the remand of the case which had originated in 1971 when the first sale was made to the defendants.

6. For the reasons set out above, appeal is allowed, impugned judgment and decree dated 9‑1‑1978 of learned Additional District Judge, Campbellpur, are set aside and those of learned Civil Judg decreeing the pre‑emption suit in favour of the plaintiff‑appellant are maintained. Costs of this appeal shall be borne by the respondents]

A . A. /R‑50/L Appeal accepted.