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Petitioner: SHERAZ ATA ULLAH KHAN And Another VS Respondent: MESSRS SHAHJAHAN KHAN And
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan Title:SHERAZ ATA ULLAH KHAN And Another vs MESSRS SHAHJAHAN KHAN And
JUDGMENT
Reported As: K.L.R.1993 Revenue Cases 19 Result: suit dismissed Judgment JUDGMENT CH. MUSHTAQ AHMAD KHAN, J.-Briefly stated facts of the case out of which this civil revision has arisen are that the petitioner Sheraz Ata Ullah Khan, alongwith Nusrat Ullah Khan, filed a suit to pre- empt land measuring 91 kanals and 4 marlas situate in village Hussain Wala of Tehsil and District Mianwali, against respondents No.1 and 2, who had purchased the same from Messrs Shahjahan Khan and others. Both the pre-emptors are sons of the vendors, namely, Shahjahan Khan and Suba Ahmad Sardar Khan, respectively and it is on the basis of this qualification that the superior pre-emptive right has been claimed. This suit has been contested by the respondents Nos. 1 and 2. On the basis of the pleadings of the parties, learned trial Court framed the following issues: - (1) Whether the suit is insufficiently valued for the purposes of the Court- fees and jurisdiction. If so what the correct valuation and effect of non-deposit of adequate court-fee within time limited by law. OPD. (2) Whether the suit is collusive and benami. (3) Whether the plaintiffs have got superior right of pre-emption qua vendor, defendant. (4) Whether the sum of Rs.100,000 was fixed in good faith actually paid as sale price of land in question.
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(5) On non-proof of issue No.4, what was the market value of land in suit at the time of sale. (6) Whether the vendee/defendant have effected improvement over land in suit. (7) Whether the defendants are entitled additional charge, of Registration etc. If so to what extent. (8) Relief. and after recording of evidence vide judgment and decree dated 17.10.1982, decreed the suit of the plaintiffs on payment of Rs.100,000 as a pre-emption money and directed the pre-emptors to pay the same on or before 15.11.1982. Aggrieved of the decretal amount, the plaintiffs-petitioners and the co- plaintiff who is respondent No.3 in this civil revision, filed an appeal in District Court Mianwali, which was accepted by the learned Additional District Judge, Mianwali, vide judgment and decree dated 9.5.1983 and the judgment and decree passed by the learned trial Court was modified, so as to reduce the sale price from one lac to Rs.89,500. The pre-emptors were directed to deposit a sum of Rs.89,500 after deduction of zar-e-panjam, on or before 2.7.1983. It has been directed in the decree passed by the learned Addl. District Judge that in case the petitioners fail to make such deposit upto the time fixed their suit shall be deemed to have been dismissed. The petitioner and the respondent No.3 filed an application on 29.6.1983, for review of the judgment and decree rendered by the learned Addl. District Judge, under section 114 of C.P.C., claiming therein that the respondent No.3, a co- plaintiff wants to withdraw the suit, therefore, he may be allowed to withdraw from the suit, the petitioner may be granted decree for the whole of the suit land and he may be allowed to deposit the entire pre-emption money and for the purpose of deposiLof sale price, fresh date may be fixed and in the alternative the date already fixed may be extended. There is an application appended with the review petition, praying therein that the decree sought to be reviewed may be suspended and the time limit fixed for the deposit of the pre-emption money may also be suspended and in the alternative time fixed may further be extended. 2. Learned Addl. District Judge, vide order dated 30.6.1983, held that the petitioner-plaintiff was entitled to the half of the land and there is no reason that even to extent of his share in the decree he should not deposit the preemption amount within the prescribed time. Regarding deposit of the remaining amount it was ordered that proper order can only be passed, after hearing the other parties and hence did not suspend the decree and held that proper order will be passed at the time of final decision bTthe review petition. Order dated 30.6.1983, passed by the learned Addl. District Judge is reproduced as under:- {{URDU TEXT MISSING}} In pursuance of the above order, the petitioner-plaintiff deposited an amount of Rs.24,750 on 2.7.1983 in addition to the zar-e-panjum, already deposited which, made the total deposited decretal amount equal to Rs.44,750 which is equal to share of the petitioner-plaintiff. In proof of this deposit, learned counsel for the petitioner has placed on record a report obtained from the court of learned trial Court and has placed on record certain other documents which prove that the deposit had been made by the petitioner within the stipulated period of time. Learned counsel for the respondents have gone through these documents admitted that the deposit referred to above,
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stands established on record. 3. The review application was again taken up on 19.7.1983 and fresh notices were issued to the respondents for 25.1.1983 and after keeping the matter pending upto 25th February, 1984, learned lower appellate court dismissed the review application as well as the suit in toto for want of deposit of the total decretal amount of Rs.89,500 before the date fixed in the original judgment and decree dated 9.5.1983 rendered by him, vide order dated 25.2.1984. Operative paragraph 5 of the said order is reproduced as under:- "For the foregoing reasons I am convinced that the suit of the petitioners was joint and the same could not be divided into two separate or rival claims after disposal of the first appeal. One of the petitioners cannot be permitted to withdraw his claim nor he could surrender his claim in favour of the other. Both the petitioners were to sail together and, since, the total pre-emption money has not been deposited, under the orders of this Court dated 9.5.1983, the suit of petitioners stands dismissed in toto. No provision or concession of partial pre-emption can be made in favour of one. Petitioner No.1 had not sought decree for total land in his favour alone, either in the plaint or in the memorandum of appeal and, as such, the same could not be granted to him at this belated stage. No concession for extension of time for deposit of pre-emption money can be exercised in favour of any of the petitioners, particularly, when the court has already became functus officio. The review application is, therefore, without force and the same is accordingly, rejected. The money, already deposited by the petitioners, may be withdrawn by them." The order dated 25.2.1984 passed by the learned Civil Judge and judgment and decree dated 9.5.1983 have been challenged in this civil revision. 4. Rana Muhammad Sarwar Khan, Advocate, has appeared on behalf of the petitioners whereas Mr. Muhammad Hanif Niazi, Advocate has appeared on behalf of respondents No.1 and 2. Mian Muhammad Nawaz Advocate, has appeared on behalf of respondent No.3. Learned counsel for the petitioners has raised the following contentions:- (1) That the petitioner and respondent No.3 in this civil revision has filed the pre-emption suit on the basis of their own independent right which is superior even individually qua the respondents No.1 and 2, being sons of two vendors therefore, even if one of the co-plaintiff had opted to withdraw from suit, the petitioner was entitled to the grant of a decree for whole of the land in question and the suit in toto could not have been declared to have been dismissed by the learned Addl. District Judge. Judgment of the learned first appellate court, therefore, according to the learned counsel, is erroneous in law. Reliance in this behalf has been placed by the learned counsel for the petitioners on the following cases... Anrub Misir vs. Ram Harakh Misir (AIR 1929 All. 953), Ramji Lal and others vs. Pitam Chand (AIR (35) 1948 EP 18), Khawas Khan vs. Rasul Khan and Lashkar Khan (29 PR 1894), Mehr Allah Ditta vs. Muhammad Ali (PLD 1972 SC 59), Mst. Said Begum and others vs. Nur Ahmad and others (PLD 1978 SC 133), Jalla and others vs. Nauranga and others.... (PLD 1949 Lahore 302). (2) That while dismissing a review petition, learned Additional District Judge had the jurisdiction to extend time for deposit of the balance decretal amount and refusal to extend the time or fix fresh period of time for deposit of sale price is illegal and hence the learned appellate court has exercised the jurisdiction illegally and with a material irregularity. Reliance in this behalf has been placed on cases of Shah Wali vs. Ghulam Din and another (PLD 1966 SC 983), Khurshid Akber vs. Mian Manzoor Ahmad (1982 S.C.M.R. 824), Bhai Khan vs. Allah Bux and another (1986 SCMR 849),
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Ghulam Haider and others vs. Mst. Raj Bharri (PLD 1988 SC 20) and Muhammad Irshad vs. Ch. Fazal Haq and 5 others (1991 SCMR 2149). (3) That the petitioner could not have been punished for the act of the court. Before the expiry of the time fixed by the learned Addl. District Judge for deposit of the pre-emption money, an application was made for modification of decree and seeking permission to deposit the whole decretal amount by the petitioner alone. The application filed by the petitioner was kept pending by the court and it was observed that the petitioner should deposit the pre-emption money to the extent of his share within the time fixqd by the said court and with regard to the right to deposit the balance amount, the matter was postponed, to be decided after hearing the parties while refusing suspension of decree, it was ordered that regarding this aspect proper order shall be passed at the time of final decision of the review application. The petitioner did deposit the pre-emption money within the time fixed by the learned Additional District Judge to the extent of his own share and could not have deposited the balance sale amount without requisite modification of decree and in view of the order passed by the learned first appellate court, hence failure to deposit the total pre- emption money was not the result of any inaction or negligence on the part of the petitioner but due to the aCt of the court, consequently, the petitioner could not have been penalized, by dismissal of the suit in toto, due to non-deposit of the total preemption money. Reliance in this behalf has been placed by the learned counsel on cases of Khan Shah Muhammad Khan vs. Allah Diwaya and others (PLD 1961 Lahore 743), Malik Hadayat Ullah and two others vs. Murad Ali Khan (PLD 1972 SC 69) and Malik Barkat Ali Dogar vs. Muhammad Shafi and others (PLD 1990 S.C. 60). Elaborating his arguments, learned counsel for the petitioners has argued that the petitioners having filed the pre-emption suit in exercise of the independent rights had a right to obtain a decree jointly and severally to pre-empt the total land sold, on payment of the sale price fixed by the learned Additional District Judge withdrawal of the co-plaintiff whose right to pre-empt was not in any manner joint with the petitioner could not have resulted in the dismissal of the suit in toto inasmuch as pre-emption is a right of substitution qua the vendee and is not the sale in pursuance of the agreement for sale, consequently if one pre-emptor did not like to pre-empt sale and the other wanted to pre-empt sale as whole on the basis of his own right which has already been held by the court as being superior to the respondents he was definitely entitled to the decree with regard to the whole of the land in question on payment of total decretal amount fixed by the court and therefore, the learned Addl. District Judge could not have dismissed the decreed suit. Learned counsel further argued that the petitioner could not have deposited the total decretal amount without decree being modified and further due to the order passed by the learned Addl. District Judge on 30.6.1983, wherein the petitioner had been made to deposit the sale amount to the extent of his own share alone and with regard to the deposit of the balance amount, the decision was reserved till the time the review petition is finally decided, after hearing the respondents consequently, the petitioner could not be said to be at fault and it was due to the order of the court that he did npt deposit the total sale firice and therefore the suit could not have been dismissed while dismissing the review petition filed by the petitioner and respondent No.3. According to the learned counsel act of the court cannot prejudice a litigant and keeping the review application pending for a considerable time, will be a very strong circumstances to be taken into consideration in favour of the petitioner while exercising discretion to fix and allow further time to deposit the pre- emption money. Hence the learned Additional District Judge committed a serious error of law which attracts the exercise of revisional jurisdiction of this Court. Learned counsel further contend that a review jurisdiction is a statutory jurisdiction and while deciding an admitted review application, learned Addl. District Judge did have the jurisdiction to extend the time for deposit of
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the pre-emption money and view of the lower appellate court to the effect that the suit stood dismissed and hence the court is functus officio is not lawful and is rathan against the ratio of the cases of Shah Wali vs. Ghulam Din and another (PLD 1966 SC 983), Khurshid Akbar vs. Mian Manzor Ahmad and another (1982 S.C.M.R. 824), Bhai Khhn vs. Allah Bux and another (1986 SCMR 849) and Ghulam Haider vs. Mst. Raj Bhari (PLD 1988 SC 20). Hence the learned lower appellate court has exercised jurisdiction illegally and with a material irregularity and discretion has been used against the petitioner in an illegal and arbitrary manner. 5. Muhammad Hanif Mazi, Advocate, learned counsel for the respondent No.1 and 2 has raised the following contentions:- (1) That the petitioner and respondent No.3 in fact wanted to get extension of time for deposit of the pre-emption money fixed by the learned Addl. District Judge, who having decided the appeal has become functus officio, therefore, the pre-emption money in toto having not been deposited, review proceedings being taken to a court which has no jurisdiction to extend the time will, not make any difference and the suit shall stand dismissed automatically, as such the learned Additional District Judge has passed lawful order which cannot be interfered within exercise of the revisional jurisdiction of this Court, in support of the above arguments, learned court has relied upon cases of Muhammad Gul vs. Nemat Ullah and another (PLD 1968 AJK 15), Mardan Shah vs. Sattarn and others (PLD 1954 Lah. 87), Shah Wali vs. Ghulam Din alias Gaman another (PLD 1966 SC 983), Khan Shah Muhammad Khan vs. Allah Diwaya and others (PLD 1961 Lahore 743), Mst. Jannat vs. Sham and three others (PLD 1983 Lahore 302) and Bhai Khan vs. Allah Bakhsh and another (1986 S.C.M.R. 849). (2) That the learned Additional District Judge having refused to extend the time in exercise of the discretionary jurisdiction, no interference can be made therewith in exercise of the revisional jurisdiction of this Court. Reliance in this behalf has been placed by the learned counsel on the case of Bhai Khan vs. Allah Bux and another (1986 SCMR 849). (3) That the petitioner has not deposited the pre-emption money till today and therefore, on this short ground he has no right to get his suit decreed which has already been dismissed by the learned lower appellate court. Reliance in this behalf has been placed by the learned counsel on case of Manzoor Hussain vs. Muhammad Ali and another (1989 SCMR 1498) (4) That there being a joint decree in favour of the petitioner and respondent No.3, both the pre- emptors had to sail together. If the respondent No.3 had withdrawn from the suit, the whole decree stood frustrated and as such the suit in toto has rightly been dismissed. Reliance has been placed in this behalf on case of Muhammad Ishaq and another vs. Mst. Sufia Begum (1992 SCMR 1629). 6. I have considered the arguments addressed by both the learned counsels for the parties, have perused the record and have gone through the judgments cited at the bar. Admittedly, before the date fixed for deposit of the pre-emption money by the learned Additional District Judge i.e. 2.7.1983, the petitioner and respondent No.3, on 2.6.1983, had filed a review application before the learned Additional District Judge, praying therein a modification of three as well as fixation of a period of time for deposit of the pre-emption money by the petitioner alone who claimed himself entitled to the grant of the decree of w'hole of the suit land and wanted to deposit the whole pre-
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emption money. Suspension of decree during the pendency of main petition was also prayed for. This application was filed_on 29.6.1983. It was taken up by the learned Additional District Judge on 30.6.1983 and was registered and the notices were issued for 19.7.1983, after noticing the contentions raised by the petitioner. Regarding the prayer contained in a separate application for suspension of the decree, particularly, the term for deposit of the decretal amount, learned Additional District Judge did not suspend the decree but specifically held that the petitioner should deposit the pre-emption money to the extent of his own share. Regarding deposit of the balance amount learned Additional Distt. Judge postponed the decision till the review application was decided ultimately. This review application remained pending before the learned Addl. District Judge and was ultimately dismissed on 25.2.1984. The petitioner is proved to have deposited the sale amount to the extent of his own share amounting to Rs.44,750 as is clear from the certificate report issued by the office of the learned civil Judge, which fact has been conceded before me by the learned counsel for the respondents after going through the deposit report. Consequently, it is crystal clear that there was no failure on the part of the petitioner, to deposit the whole sale price within the stipulated period of time inasmuch as he could not have deposited the said amount unless and until the decree was modified or there was a direction by the court or the prayer for deposit of the whole decretal amount was not kept pending and it was left to the petitioner to deposit the amount. It is due to the act of the court itself that the petitioner did not and rather could not deposit the whole decretal amount. 7. It is an established principle of law that a right of pre-emption is a right of substitution. It is not a right of purchase of property or a fresh sale. Each pre-empt has an independent right to pre-empt a sale and even if one of the preemptors withdraws or is found to have no superior right of pre- emption, his name can be struck off and the remaining pre-emptor is entitled, on the basis of his own right, to get a decree of the total land sold, inasmuch as each pre-emptor has an independent right of pre-emption. This view is fully supported by the law declared in the judgments cited at the Bar and noted at serial No.1 of the contentions raised by the learned counsel for the petitioner and case of Mst. Jannat "PLD 1983 Lahore 302 referred to by the learned counsel for the respondents. In fact this proposition has not been seriously contended by the learned counsel for the respondents No.1 and 2. Out of the cited cases by both the learned counsel, the relevant most for determination of the matter in issue, are referred below:- In case of Jalla and others vs. Nauranga and others (PLD 1949 Lahore 246), it has been held that if there are three pre-emptors out of whom, when the case is pending in appeal, one of the appellant dies and his legal representatives are not brought on the record, the appeal cannot abate as a whole inasmuch as the right of pre-emptor is separate and independent right. In case of Mst. Said Begum and others vs. Nur Muhammad and others (P.L.D. 1978 Supreme Court 133), It has been held as under:- "The suit was filed on the premise that the respondents were the owners in the khata of the suit land and, therefore, had a superior right of pre-emption in terms of section 15(e), thirdly, of the Punjab Pre-emption Act, 1913, without specifying to what extent they were individually interested to pre-empt the sale of the suit land." A learned single Judge in the High Court held that such right is not jointly shared by one respondent with the others in a pre-emption suit. As such, any one of the respondents had a right to pre-empt the sale of the land subject to the limitation that it was only controlled by a similar right of other pre-emptors of equal degree. Therefore, in the case of various suits of pre-emption
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brought by persons having an equal right of pre-emption the property is awarded to all the preemptors in equal shnare, and in the case of one suit where several persons having an equal right of pre-emption joint to pre-empt the sale, each one of them is entitled in his individual right to a decree in respect of the entire property. Thus the withdrawal or death of one of such person would only have the effect of eliminating him from the case which would not affect the right of surviving persons to pre-empt the entire suit land. In support of the plea that the appeal abated in toto the learned counsel for the appellants relied on Sheikh Inayat Ali vs. Ghulam Muhammad and others and Wali Muhammad and others vs. Manak Ali and others. The rest to see whether the suit or appeal abates as a whole or only in part is to find out if the suit, in the first instance could have been instituted and prosecuted with the deceased plaintiff left out. In other words, if the plaintiffs could file separate suits then the abatement will only be in part. The same criterion will apply to an appeal. If, on account of partial abatement, it becomes, for any reasons, impossible to proceed with the suit to its final conclusion, the entire suit will fail. The reason being that no decree can be passed or given effect to insofar as the rights of the parties actually before the court are concerned, without interfering with the interest of the legal representatives of the deceased party not brought on record. However, if this is not so then the suit abates partially. Applying this test to the instant case, the right to pre-empt exists under section 4 of the Pre- emption Act with respect to the land or village immovable property in a particular person or persons before the sale of such property take place and becomes an actuality at the completion of the bargain. It is a personal right in the sense that it is created in him by the provisions of section 15 and occurs on account of personal relationship which the pre-emptor may have with the vendor or it may appertain to him as a co-sharer in the property or a proprietor in that estate. It is also personal in the sense that his interest in pre-emptive property is protected solely against determinate individuals. Therefore, any person standing in that situation can file a suit for pre- empting the sale of the property; and if the number be more than one then they can join as plaintiffs to seek the same relief. Such right being personal, each one of them is entitled to prosecute the suit to the same extent as the others. And, if one of them withdraws or dies without his legal representatives being brought on record then this would not adversely affect the rights of the others. In Mahadeo Singh vs. Talib Ali and others (2) one of the appellants-pre-emptors died during the pendency of the appeal and his legal representatives were not concerned, the question arose as to whether the appeal had abated as a whole Mukerji, J. Said:- "The pre-emptors' right to pre-empt the whole of the property sold is independent of a similar right enjoyed by another person who stands in the same degree as regards the right of pre-emption as the other claimants. The fact, therefore, that two or more such claimants to a right of pre-emption join in one suit, instead of bringing separates suits of their own, cannot convert the separate rights of the several plaintiffs into a joint right. Accordingly, it was held that the failure to bring the legal representatives of one of the appellants on record would not interfere with the right of the other appellants to prosecute their appeal. In Muhammad Wajid Ali Khan vs. Puran Singh and others (1), one of the respondents, who had joined the others to pre-empt the sale of the land, died during the pendency of the appeal filed by the vendee and his legal representatives were not bring on record, consequently, the High Court rejected the appeal in toto. The question which arose for decision before the judicial committee
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was as to whether the High…
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