MUHAMMAD AFSAR Versus NOOR MUHAMMAD

ZAFFAR HUSSAIN MIRZA, J. ‑‑This appeal by leave of this Court arises out of judgment by a learned Single Judge of the Peshawar High Court, Circuit Bench Abbottabad, dated 4th April, 1984, whereby the civil revision filed by the appellants was dismissed.

2. The facts so far as relevant for the present appeal are that Gul Zaman, the second respondent herein, transferred by way of sale his 17/18 shares out of Khasra Nos.396,400,397,393 and 22/32 shares out of field Nos.403, 405 and 407 situated in the area Mang in N.‑W.F.P. to Muhammad Afsar, the first appellant herein. On 3rd March, 1975, Noor Muhammad, the first respondent herein, filed a suit claiming superior right of pre‑emption on the ground of contiguity and participation of the immunities in the said land. During the pendency of the suit according to Noor Muhammad appellant Muhammad Afsar transferred the property to Muhammad Sulemari, the second appellant, by means of a consent decree in civil Suit No.152/1. This suit was filed by Muhammad Suleman against Muhammad Afsar on 15th ;March, 1975 and was decreed with consent on 5th April, 1975. In view of the aforesaid alleged supervening facts, Noor Muhammad filed an amended plaint in which he questioned the validity of the decree passed in Suit No.152/1 which declared that Muhammad Suleman was the real beneficiary and the sale in question was in favour of Muhammad Afsar as the ostensible owner. The prayer for possession by way of pre‑emption against Muhammad Afsar was maintained.

3. The suit was not contested by Gul Zaman but the appellants denied the claim of Noor Muhammad and resisted the suit. Appellant Muhammad Afsar in his written statement took up the position that Gul Zaman had sold khasra Nos.395 to 397 and 400 in their entirety and 23/32 shares out of khasra Nos.403, 405 and 407 in favour of appellant Muhammad Suleman but ostensibly mutation No.105 was got attested in his favour. According to him Gul Zaman sold his remaining shares out of the suit land in favour of appellant Muhammad Suleman under a separate mutation bearing No.106. He further pleaded that when Muhammad Suleman came to know the facts he filed a Suit No.152/1 in which a decree was passed that the sale under the two mutations was in fact in his favour.

4. In view of the facts pleaded by appellant Muhammad Afsar, both appellants resisted the suit on the main plea that the transaction, in favour of Muhammad Suleman was exempted from pre‑emption on the ground that he was a Tarbela Dam evictee.

5. The trial Court held that by virtue of the decree passed in Suit No.152/1 of 1975, mutation No.105 stood cancelled and appellant Muhammad Suleman became the owner of the land in dispute. From this it was held that appellant Muhammad Suleman being a displaced person from the land acquired for the construction of Tarbela Dam, the transaction in suit was exempt from pre‑emption by virtue of N.‑W.F.P. Government Notification No.4400 dated 18th April, 1971, read with Notification No.13924/ Rev./N‑79‑II, dated 13th March, 1974. Accordingly the suit of respondent Noor Muhammad was dismissed by judgment and decree dated 21st December, 1978.

6. Being aggrieved respondent Noor Muhammad filed an appeal against the judgment passed by the trial Court, which was accepted by the learned Additional District Judge, Haripur, vide his judgment dated 6th November, 1979, whereby he set aside the judgment and decree of the trial Court, and granted decree for possession through pre‑emption in favour of respondent Noor Muhammad on payment of Rs.9,071.84. The learned Additional District Judge proceeded on the assumption that Muhammad Suleman had acquired the land comprised in mutation No.105 by means of sale through a consent decree dated 5th April, 1975. As a consequence the learned Judge took the view that as this transfer was made by the vendee in favour of Muhammad Suleman who enjoyed the protection from pre‑emption as a Tarbela Dam evictee, beyond the prescribed period of limitation under section 16 of the N.‑W.F.P. Pre‑emption Act, the rights of Noor Muhammad as pre‑emptor remained unaffected.

7. Appellants then challenged the judgment of the learned Additional District Judge in the revisional jurisdiction of the Peshawar High Court and by the impugned judgment a learned Single Judge affirmed the view taken by the appellate Court to the effect that the transfer in favour of appellant Muhammad Suleman by Muhammad Afsar, the first vendee having taken place after the expiry of the period of one year and during the pendency of the suit for pre‑emption, did not adversely affect the claim of Noor Muhammad. However, the learned Judge partly accepted the revision by holding that respondent Noor Muhammad was not entitled to the possession of the land sold out of field No.407, which was ordered to remain in the ownership of the transferee.

8. On a petition submitted by the appellants leave was granted to consider the contention that irrespective of the date of transfer by the first vendee Muhammad Afsar in favour of appellant Muhammad Suleman, the fact that the transfer was in favour of a person who is evictee its conveyance was exempted from pre‑emption which protection was available to him under section 17 of the N.‑W.F.P. Pre‑emption Act.

9. Kh. Muhammad Yousaf Saraf learned counsel for the appellants, has not pressed the contention noted in the leave granting order based upon section 17 of the N.‑W.F.P. Pre‑emption Act, 1950 (hereinafter referred to as the Act). We also find that in the facts of this case the provisions of section 17 are not attracted, in view of the pleadings of the parties in the suit out of which this appeal has arisen. The important point to be emphasised in this connection is that Noor Muhammad instituted the suit for pre‑emption on the basis of sale by mutation No.105, before the decree was passed in Suit No.152/1 dated 5th April, 1975. The cause of action accrued to the pre‑emptor as a result of the said sale in favour of Muhammad Afsar who was the vendee shown in the said mutation. However, when Muhammad Afsar and Muhammad Suleman filed their written statements disclosing the fact that as a result of the decree in Suit No.152/1, Muhammad Afsar was not the real purchaser but that the sale was in reality in favour of Muhammad Suleman, Noor Muhammad filed an amended plaint in which he took up the plea that the said decree was obtained by means of fraud and collusion. However, he retained the same prayer for pre‑emption of the sale in favour of Muhammad Afsar. In other words the case of the pre‑emptor was that as the decree in the suit inter‑se the appellants was a nullity, the sale evidenced by mutation No.105 was intact and his right to pre‑empt the sale, therefore, also remained intact. The case of the appellants in their written statements was that in fact the entire property comprised in mutation Nos.105 and 106 sold by Gul Zaman was a single transaction of sale in favour of Muhammad Suleman, but the vendor had unauthorisedly split it into two, whereby the first mutation was entered in favour of Muhammad Afsar as purchaser had the second in favour of Muhammad Suleman. On the basis of the decree in Suit No.152/1, the appellants, therefore, pleaded the bar of the notification in respect of Tarbela Dam evictees which was available to Muhammad Suleman.

10. In the circumstances no provision of section 17 is attracted. Subsection (1) of section 17 speaks of the purchaser transferring the property prior to the institution of suit for pre‑emption. On the pleadings of the appellants Muhammad Afsar was not the purchaser but his name appeared ostensibly when the real purchaser was Muhammad Suleman. Therefore, according to their plea there was in fact no transfer by Muhammad Afsar to Muhammad Suleman at the time of the mutation prior to the suit. Subsection (2) of section 17, on the other hand, speaks of the vendee improving his status after the institution of the suit. The suit in this case was filed against the first vendee Muhammad Afsar, whose status was not improved by the decree subsequently passed in the suit inter se the appellants. If at all his status as a vendee disappeared by means of that decree as he was on his own admission not the purchaser at the inception of the transaction. For these reasons we think the learned counsel has rightly given up the contention based on section 17.

11. Learned counsel has, however, placed reliance on section 16 of the Act and has contended that as Noor Muhammad pre‑emptor did not have a subsisting right of pre‑emption at the time of decree .in his suit because in the meantime by virtue of the decree passed in favour of Muhammad Suleman who was protected from pre‑emption any right of pre‑emption that he may be having on the date of the institution of the suit was obliterated on the happening of the supervening events.

12. This contention is based on the assumption that the decree passed in Suit No.152/1 finally and conclusively determined the question whether the transaction purporting to be a sale in favour of Muhammad Afsar and entered as such under mutation No.105 was in fact part of the transaction of the sale in favour of Muhammad Suleman in respect of land covered by mutation Nos.105 and 106. However, this assumption, in the circumstances of this case, is untenable. The respondent did not accept the validity of the decree. It is true that the Judgment and decree in the proceedings which are in personam, are binding only upon parties to the proceedings and not upon strangers nor can such Judgment or decree be pleaded as res judicata‑‑Victor Maduka and others v. Ezeodimegwu A I R 1949 P C 54. Such judgment is binding on parties and privies and not on third parties. It cannot be ignored that in a pre‑emption matter the/ pre‑emptor has to go into the shoes of the vendee. When doing so, he can obtain only that, what the latter has got‑‑neither more nor less. If the decree relied upon by the vendees (appellants in this) case), would not have been challenged by the pre‑emptor (respondent)) as collusive, we might have further examined the effect of the disputed consent decree in favour of Suleman against Afsar upon the rights of pre‑emptor, Noor Muhammad.

13. However, we find that. the appellants had set up the plea that the transaction evidenced by mutation No.105 was in fact in favour of Muhammad Suleman as a defence to the claim of pre‑emption made by Noor Muhammad; while on the other hand, in his plaint the latter had asserted that these are collusive and fraudulent pleas on the basis of which the decree in Suit No.152/1 was obtained. From these pleadings of the parties contentious questions of fact did arise which had to be determined by the trial Court. These questions were not tried and determined as no such issue was framed in the suit. On the other hand the trial Court proceeded on the basis that as a result of the decree passed in Suit No.152/1 Muhammad Sulaman became the owner of the land and Noor Muhammad was left with no right of pre‑emption. As shown above this is not a valid basis for the conclusion arrived at by the trial Court. The appellate Court also proceeded upon an entirely new basis not pleaded by the plaintiff, namely, that the consent decree passed in the suit inter se the appellants was a retransfer of the suit land by Muhammad Afsar in favour of Muhammad Suleman and as such under the amended provisions of section 16 of the Act, "the rights of the plaintiff /appellant Noor Muhammad could have ? been affected and he non‑suited when this retransfer of the suit land would have been made by vendee Afsar in favour of a person having an equal or superior right of pre‑emption to that of the plaintiff Noor Muhammad and within the period of limitation of one year starting from 8th March, 1974". In fact this was not even the case pleaded by the appellant Muhammad Suleman. It is exiomatic that the Court cannot set up a different case for the parties and decide an issue on that basis, particularly on questions of fact. In the circumstances even though the decree passed in Suit No.152/1 is not binding on Noor Muhammad, the plea taken by the appellants that the sale covered by mutation No.105 was in reality in favour of Muhammad Suleman, against whom the right of pre‑emption could not be claimed, required determination in the present suit. As this question has remained unadjudicated, the case must be remanded for determination of the same.

14. In the result this appeal is accepted and the judgments of the Courts below are set aside. The case shall be remitted to the trial Court to frame proper issues in the light of this judgment and decide the suit afresh in accordance with the findings arrived at by the Court on the fresh issue or issues framed as a result of this judgment.

There will be no order as to costs.

M.Y.H./M‑380/S ??????????????????????????????????????????????????????????????????? Case remanded.