GHULAM MUHAMMAD and others Versus SHAMIM AHMAD KHAN through L.Rs.

SARDAR MUHAMMAD RAZA KHAN, J. --- Ghulam Muhammad and others have filed this appeal against the judgment, dated 19-9-2002 of learned Judge in Chambers of Lahore High Court, Rawalpindi Bench whereby the respondent-pre-emptors stood granted a decree for possession of the suit-land through pre-emption.

2. Land measuring 99 Kanals in dispute was sold by Nawazish Ali Khan in favour of Ghulam Muhammad, Mir Zaman, Noor Zairian, Muhammad Zaman, Muhammad Nazir and Baza through registered sale-deed, dated 6-10-1977. Vide judgment dated 16-9-1979, the learned trial Court granted the decree prayed for but in the appeal, the learned Additional District Judge, Attock vide judgment dated 24-4-1980 partially modified the decree holding that the suit deserved to be and was dismissed qua the share of Mst. Naz Zahoor, one of the vendors, who was provenly not related to the pre-emptors. Superior right of pre-emption was based on the relationship of being collaterals. The learned High Court, however, granted a decree for the entire property, holding also, that Ghulam Muhammad and Baza being tenants had associated in the sale remaining four vendees who had no such right and thus, would lose the land under the principle of sinker.

3. Learned counsel for the appellant-vendees raised multi-fold objection. Firstly, that the superior right based on being collaterals, the pre-emptors had no relationship whatsoever with Mst. Naz Zahoor, one of the vendors, the suit qua her 19 Kanals (calculated by the learned counsel) required to be dismissed outright.

4. Secondly that the pre-emptors, as per pedigree table Exh.P.3 (P.69) directly descending from one Nawab Khan, had failed to prove the link with Abdullah Khan, the common ancestor. The argument was developed on the ground that the name of Nawab Khan in pedigree table was not linked with any one ascending up to Abdullah Khan. It was claimed that, in the circumstances, the entire suit was liable to be dismissed.

5. Thirdly, it was claimed that the principle of sinker, not otherwise provided in the Punjab Pre-emption Act, 1913, cannot damage the right of a tenant sanctioned by a Federal Law (para.25(3)(d) of MLR 115 which had the overriding effect against any Provincial Law.

6. Fourthly, the learned counsel added, that even if the principle of sinker was to be brought into play, it would not apply to the sale in question because it was a divisible sale whereby specific share of 3/4 was purchased by Ghulam Muhammad, while remaining specific 1/4 share was purchased by the remaining five vendees in equal share. It was further alleged that the application of sinker being not pleaded in the plaint and no issue having been framed to that, effect, the vendees were deprived of opportunity to rebut the application of sinker by proving through evidence that the sale was divisible as per criteria of divisibility laid down by the superior Courts.

7. Taking the arguments not in seriatim, we must say that Para.25 (3) (d) of MLR-115, irrespective of being a Federal Law, gives first right/superior right to a tenant. No more and no less. This would automatically operate as part of the Pre-emption Laws of the Provinces and is liable to succeed or to be defeated in accordance with the principle of such laws. Sinker is a principle that evolved through case-law and hence has to be followed even in cases involving the right of a tenant.

8. Who is to plead sinker, is the question to follow. Obviously, the principle of sinker applies to and against the defendant-vendee and hence, the plea of sinker detrimental to the defendant cannot be raised by a defendant. Being a question of fact and favourable to the pre-emptor, it should normally be raised by the plaintiff/pre-emptor, but he too might be reluctant, because by taking this plea, which may or may not be accepted finally, he would be taken the risk of accepting the superior right of some of the defendant or defendants whom he would like to sink with those having inferior right. It is quite intriguing for the plaintiff as well. Anyhow, if a party is expected to cover all the aspects of a case in pleadings, then the plea of sinker requires to be raised in the plaint by the pre-emptor.

9. Be that as it may, one thing is settled that the principle of sinker is a question of fact and becomes all the more serious when plea of divisibility of sale, is raised by the vendee. We believe that whenever such plea is raised, obviously during evidence or at any stage of trial, the trial Court should frame an issue to that effect placing burden oil the defendant to prove.

9-A. Viewed in such background and involving substantial question of fact, if the trial Court had framed an issue about sinker, the defendant-vendee would have an opportunity to prove that it was not applicable because of the divisibility of sale. A similar view was taken by this Court in Civil Appeals No.1015 and 1016 of 1995 Haji v. Ahmed Ali decided on 26-3-2002. In the instant case, prima facie, the sale is made with specific shares, being one of the ingredients of a divisible sale. Lest a tenant loses his right for not being afforded the Opportunity to lead evidence qua a question of fact, the case, in the interest of justice, needs to be remanded.

10. As we intend to remand the case, the questions of collateralship of pre-emptors with the vendors and that of Mst. Naz Zahoor, vendor not being a collateral at all, are left open.

11. Consequently, the appeal is accepted, the impugned judgment dated 19-9-2002 is set aside and the case is remanded back to the trial Court with direction to afford opportunity to the parties to lead evidence on the following issue and thereafter to decide the case in accordance with law.

(1) Whether the sale in question is divisible and hence averts the application of sinker? OPD

S.A.K./G-10/SC ????????????????????????????????????????????????????????????????????????????????? Case remanded.