GULZAR And Others vs MUHAMMAD ANWAR And Other

1. MUHAMMAD AFZAL ZULLAH, CJ: --These three petitions arise out of the same case of pre-emption, therefore, they are being disposed of together.

2. There are three parties before us who would in this order be described as, "pre-emptors/vendors' son", "other pre-emptors", "vendees". There were two vendees Muhammad Anwar petitioner and Ehsan Rabbani. The suit of Naeem Akhtar pre-emptor vendor's son failed on ground of collusion.

3. The suit of the other pre-emptors Ghulam Rasul and others, succeeded with decree for equal shares. The first appeals of the parties were dismissed. In the second appeals while disposing them of the High Court took note of the death of father of Muhammad Anwar by virtue of which he also became an owner of land in such a manner so as to defeat the suit of the other pre-emptors.

4. Accordingly, the High Court allowed Muhammad Anwar vendee's appeal to the extent of 1/2 of the suit property purchased by him in the initial transaction. There was another development that took place also during, the litigation; namely, that Ehsan Rabbani vendee sold his half share also to Muhammad Anwar vendee. The High Court did not grant any benefit to Muhammad Anwar vendee in respect of this so-called improvement through purchase from Ehsan Rabbani and accordingly dismissed Muhammad Anwar's appeal, vis-a-vis half share of Ehsan Rabbani. The appeal of Naeem Akhtar pre-emptor/vendor's son was dismissed by affirming the concurrent findings of fact against him. The appeal of the other pre-emptors was also dismissed. In other words they lost half of the property and their decree was accordingly modified in the second appeal. They have all sought leave to appeal through these petitions.

5. After hearing the learned counsel of Naeem Akhtar the pre-emptor/ vendor's son we have not been able to find any justification for setting aside the findings of fact recorded regarding collusion against him. We also refuse to grant leave to appeal to him on the ground urged by the learned counsel that collusion with the vendor was permissible while it was not permissible with the vendee. Similarly we cannot grant leave to appeal to him on a speculation of his learned counsel that the law of preemption being now in an evolutionary stage he might get some benefit from possible future development in this field, though he admitted that at the present stage nothing can be urged in this behalf, so as to improve his client's position. Accordingly leave to appeal petition (C.P.L.A. No.98-R/1988) filed by Naeem Akhtar is dismissed.

6. Learned counsel for the vendees had contended that the case of a vendee improving his possession through inheritance and succession has been treated in section 21-A of the Punjab Pre- emption Act differently from other types of improvements. That being so he has further argued that the benefit given to Muhammad Anwar vendee in this behalf by the High Court in his second appeal was fully justified. Regarding the remaining half of the suit land which Muhammad Anwar purchased form Ehsan Rabbani learned counsel contended that rule of lis pendens could not have been applied by the High Court. After arguing this point for some time learned counsel could not successfully controvert, the High Court approach in this behalf. Additionally when questioned that the very provisions relied upon by Muhammad Anwar, namely, section 21-A would conversely affect his case, vis-a-vis purchase from Ehsan Rabbani, learned counsel could not render any answer.

7. Accordingly Muhammad Anwar vendee's petition for leave to appeal (C.P.LA. No.101-R of 1989) also fails and is dismissed.

8. Next petition is of "other pre-emptors". Their learned counsel has tried for the restoration of the decree in their favour in its entirety as passed by the learned trial Court and affirmed by the appeal court. He contended that the share of Ehsan Rabbani purchased by Muhammad Anwar vendee not only did not give him any benefit it should have reacted on his right regarding the share which he could retain on account of his becoming owner due to the death of his father. The precise argument was that two shares being indivisible Muhammad Anwar would also lose the one allowed to him by the High Court to be retained. When questioned whether there is any finding of fact in the impugned judgment in favour of the "other pre-emptors" to the effect that the two transactions/parcels of suit land are not separable, learned counsel answered in the negative but at the same time contended that the onus for showing that they were divisible was on Muhammad Anwar the vendee. We do not agree with him. It was for the other pre-emptors to have urged and proved this plea of indivisibility which was one of fact not earlier raised at least before the High Court when all these questions were being more precisely examined. C.P-64-R/89 is also dismissed. After hearing all the learned counsel in support of these petitions leave to appeal-is refused.