GHULAM HAIDER Versus GHULAM MUHAMMAD

Connected Regular Second Appeal No. 93 of 1982, between the same parties and relating to this very land, will also be dealt with herein. They relate to a sale of 422 Kanals 4 Marlas, being the half share of 844 Kanals 9 Marlas of agricultural land situated in village Godara, Tehsil Shorkot, District Jhang which bad been sold by Mst. Gulnaz Anjum by means of a registered sale‑deed dated 24‑8‑1974 for an ostensible price of Rs.1,27,000 in favour of Ghulam Haider' and others. This was subjected to two pre‑emption suits respectively filed by Ghulam Muhammad with four others and Pehlwan Khan and eight others claiming superior right of pre‑emption on .the ground, inter alia, of being the owners of the estate, which status was asserted to be not available to any of the vendees except Mst. Shahnaz Anjum who too had lost the right to defend the sale on account of the principle of sinker getting attracted for the reason of her having joined strangers with her as co‑vendees.

2. Both the suits were contested by the vendees by denying the superiority of the right of pre‑emption claimed by the plaintiffs and also raising a number of other technical objections against the maintainability of the suits which were ultimately consolidated on 17‑7‑1976 and further proceedings were taken in the suit of Ghulam Muhammad and others. Pleadings of the parties gave rise to a total of 15 issues, inclusive of that of the relief and parties led the evidence of their choice upon the consideration whereof trial Court held that the status of the respective pre‑emptors as the owners of the estate had been proved by their respective documents Exhs. P.2 to P.7 and Exh. D.1 and, as such, their rights inter se were also equal. Sale consideration of Rs.1,27,000 was admitted by the plaintiffs to be correct and while accordingly deciding the relevant issues in favour of the plaintiffs by repelling the other technical objections against the maintainability of the suits, trial Court, by its judgment dated 1‑7‑1980, dismissed both the suits on the basis of its conclusions adverse to them reached under issues No. 12‑A and 12‑B to the effect that they constitute claims for partial pre‑emption inasmuch as not even one of the plaintiffs in either of the suits had sued for the entire sale but they had split themselves into two groups each to claim decree for 2/3rd share of the land sold in favour of one set and the remaining 1/3rd‑share in favour of the other so that neither of those sets had prayed for decree with regard to the other share which had thus been left‑out of the claim of the four sets of plaintiffs who had prayed in their plaints for the passing of decrees for the specified parts in favour of each of them, the logical consequence whereof was that the other share of the land had been omitted to be claimed by that particular set.

3. The respective plaintiffs challenged the decrees of dismissal of their suits in two appeals maintained in the District Court at Jhang on the plea that they had sued out for the entire sale in each suit and they have been wrongly non‑suited by the trial Court on the assumption that the suits, as framed, suffered from partial‑pre emption. Therein, while reiterating that their claims were in accordance with the law and did not suffer from any defect, they also applied for amendment of their plaints with a view to claiming that the land may be given to all the plaintiffs equally. Both the appeals were heard together by a learned Additional District Judge before whom trial Court's findings on the other issues were admitted as correct by both the sides and the controversy was restricted only to its findings recorded under issues No. 12‑A and 12‑B.

4. Learned Appellate Judge found it from the perusal of the plaints that no share or portion of the suit land had been omitted from being sued in either of the plaints which actually relate to the entire transaction as had been repeatedly mentioned in the plaints to place the matter beyond any doubt and, hence, the specification of shares in which land was intended to be got by the different plaintiffs was their internal arrangement and thereby their claims could not be deemed to have become partial because their prayer as a whole related to the entire sale. He thereupon accepted the applications made by the counsel for the plaintiffs in both the suits expressing their willingness to get a joint decree for half of the land passed in each suit. Both the appeals were accordingly accepted by the judgment dated 12‑4‑1982 passed by the learned Additional District Judge on the authority of Murad Bakhsh and another v. Abdul Ghafoor and 5 others (1980 C L C 1274) to pass a first decree for half of the land in favour of Pehlwan Khan and his co‑plaintiffs upon payment upto 12‑5‑1982 of half of the sale‑price amounting to Rs.63,500 and a similar decree for the remaining half land was passed in equal shares in favour of the rival‑ pre‑emptors Ghulam Muhammad and others upon payment of identical amount within the same period and it was further ordered that in the event of failure of the plaintiffs of one suit to comply with the decree passed in their favour, their suit would stand dismissed and the other plaintiffs would be entitled to pay the amount relating to that half of the land also within another month and get it.

5. The vendee‑defendants have challenged these decrees in this and the connected R.S.A. No. 93 of 1982.

6. In support of these appeals, learned counsel has simply reiterated the stand of the vendee‑defendants about the suits filed against them being hit by the principle of partial‑pre‑emption on account of the grouping of plaintiffs made in each suit to respectively claim decree of 2/3rd share and 1/3rd share in the manner indicated, without claiming the other share and not even one of the plaintiff had claimed the whole land for himself. After carefully considering the submission, I have not found merit in it and feel constrained t observe that it is founded on a singular misunderstanding of the basic principles governing the rule of partial pre‑emption which prevents a pre‑emptor from making a pick and choose in the sale and requires that normally the bargain has to be taken as a whole by the pre‑emptor who cannot elect to get only a part of the property sold, upon payment of a proportionate or even the entire sale‑price This principle, alongwith its exceptions, has been fully explained in Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 S C 444 and has been mentioned to in essence be a rule against the pre‑emptor's desire to give up claim to a part of the property for reasons of his own convenience and can be allowed only out of necessity. However, in the cases in hand no part of the land sold has been left out and the entire land sold forms the subject‑matter of both the suits. I do not have any hesitation in affirming the view taken by the learned Additional District Judge which finds ample support from the above‑cited cases and the framing of the prayers contained in the two plaints can be fortified with reference to sections 13 and 17(e) of the Punjab Pre‑emption Act, 1913 and, at any rate, the desire of the plaintiffs of the two suits to have the land decreed equally in favour of the two sets of plaintiffs of the two suits, is not open to any valid objection on behalf of the vendees who have not shown any right of their own to retain the suit‑land in preference to the entire body of plaintiffs who have been given the whole of the land in suit by virtue of the decrees passed by the appellate Court. There does not at all emerge any case of partial pre‑emption. Contention hence fails.

7. No other point has been argued before me.

8. In result, the decrees passed on 12‑4‑1982 by the learned Additional District Judge, hang are affirmed. Both the appeals fail and are accordingly dismissed with costs.

A . A . / G‑20/ L Appeals dismissed.