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--- S. 21-A - Land Reforms Regulation, 1972 (M. L. R. 115), para. 25-Collector's consent decree - Purchase of property by tenant through-Three vendees purchasing land in certain proportions -Pre-emptor filing suit m Civil Court claiming to be vendors' collateral - Following day one of vendees also filing pre-emption suit against other two vendees on basis of being tenant of entire land sold - Collector passing consent decree-Pre emptor filing another suit for declaring Collector's decree collusive, obtained by fraud and of no legal effect against his right of pre-emption asserted in his pending suit-Declaratory suit decreed and upheld in appeal-Held, tenant having superior pre-existing right of pre-emption, could get consent decree for purchase of property sold-Held further, purchase by private contract and by decree of Collector (having exclusive jurisdiction) both have similar result.-[Decree].

Mst. Faleh Bibi v. Ahmad Khan and 6 others P L D 1971 Lab. 171 rel.

Abdul wakeel Butt for Appellant. Syed Riazul Hassan Gillani for Respondents.

Dates of hearing :11th and 18th November, 1970,

This appeal has been filed in the following circumstances :-

2. Ataullah and others sold 73 Kanals and 13 Marlas of land in Mauza - Kot Janoo, Tehsil Jampur for an ostensible consideration of Rs. 87,000 is favour of the appellant and respondents Nos. 2 and 3 in the ratio of 1/5th to the appellant and 4/5th to respondents Nos. 2 and 3 by means of registered sale deed dated 25th April, 1977. On 24th April. 1978 respondent No. 1 filed a suit for pre-emption in the Civil Court claiming to be the collateral of the vendees. A day after, i.e., on 25^th April, 1978 the appellant also filed a suit in the -Court of Collector for pre-empting 4/5th of the land sold to respondents Nos. 2 and 3 by the vendors on the ground that he had the superior right of pre-emption being tenant of the entire land. On 17th June, 1978 respondents Nos. 2 and 3 arrived at a compromise with the appellant and they had made the statement accordingly as a result of which a decree was passed in favour of the appellant on payment of Rs. 29,600 before 26th July, 1978. The suit of respondent No. 1 had to be affected by the decree obtained by the appellant from the Collector on 17th June, 1978. The respondent, in, the circumstances, filed a suit for declaration on 17th July, 1978 in the Civil Court challenging the decree passed by the Collector in favour of the appellant to be collusive and of no legal effect against the right of & pre-emption claimed in the pending suit by respondent No. 1. The appellant filed a written statement pleading that the decree was legal and effective and could not be challenged by the kind of suit filed by respondent No. 1. On the pleadings of the parties, a single issue was framed which is as follows :

(i) Whether decree dated 17th June, 1978 passed by Collector in favour of defendant No. 1 is void and against law O. P. P.

3. In evidence respondent No. 1 produced three documents Exb. P. 1, copy of judgment of the Collector, Exh. P. 2, copy of the plaint, and Exh. P. 3, copy of the 'decree sheet and closed his evidence. The appellant in his turn had produced Exh. D. 1, Khasra Girdawari from Kharif 1977 to Rabi 1978 and closed his evidence. The contention of the parties Was that the issue being a legal question, no further evidence or material required to be produced by them. After bearing the learned counsel for the parties the learned Civil Judge had held that the vendee was not permitted to file a suit for pre-emption against his co-vendees and that the decree obtained , by the appellant without impleading respondent No. 1 as a party to that suit, could not be effective against his right of pre-emption in respect of which the suit was filed and pending in the Civil Court. As such the decree was held to be void and of no legal effect against the right of pre-emption being claimed by respondent. The appellant filed an appeal before the learned District Judge and that was dismissed by the learned Additional District Judge with the observation that a vendee, like the appellant, was debarred from filing a suit for pre -emption against his co-vendees under section 10 of the Pre-emption Act. This Second Appeal has been filed by the appellant in the above circumstances.

'4. After hearing the learned counsel for the parties and examining the record summoned by this Court I had expressed the view in the Court so that the learned counsel for respondent No. 1 should make his submissions on the precise point involved in this appeal. Learned counsel for the respondent firstly relied upon section 10 of the Pre. emption Act but reading the section, the language of which is plain the case of co-vendee is not covered by this section. The section debars only the joint owner in the act of sale of property. Then he relied- upon sections 19 and 20 of the Pre-emption Act that co-vendee should be deemed to have received the notice under section 19 of the Pre-emption Act and if he failed to purchase the entire land his right shall be extinguished. But this argument was not available to the respondent who had not produced any evidence whatsoever to lay the factual foundation for the application of sections 19 and 20 of the Pre-emption Act. Lastly, he submitted that on the plea of lis pendens contained in section 2l-A of the Pre-emption Act the conset decree obtained by the appellant after the institution of the suit by respondent No. 1 was hit by this section. After examining the language of the section itself it becomes clear that it has no application to the case of the vendee who bad the pre-existing right of superior nature against the pre-emptor who .has the inferior right of pre-emption. In my view I am fortified by the judgment of this Court reported as Mst. Fateh Bibi v. Ahmad Khan and 6 others (P L D 1971 Lah.171), the relevant part of which is reproduced below : -

"It is no doubt true that under section 2l-A of the Pre-emption Act I of 1913 any improvement, otherwise through inheritance or succession made in the status o) a vendee-defendant after the institution of a suit for pre-emption shall not affect the right of the pre-emptor-plaintiff in such a suit. But the section has no application to the case of a subsequent vendee who has acquired the property privately in assertion of his superior right of pre-emption. So far as he is concerned, as discussed above, the rule of lis pendens is applicable only with the qualification that it shall not adversely-affect his pre-existing right to successfully pre empt the sale."

Following the above dictum if the subsequent vendee who had the pre-existing superior right of pre-emption could resist the claim of a pre emptor who had the inferior right why not in the present case, the appellant who had the superior pre-existing right of pre-emption could get a consent decree for purchase of the property sold by the vendors to his co-vendees. In this case the purchase no doubt was not made by a j private contract but similar result had been achieved by filing a suit by the appellant in the Court of Collector, who has the exclusive jurisdiction in relation to the suit for pre-emption by the tenant. The decree passed by the Collector in favour of the appellant although without trial yet that would be an immediate factor. If this decree had been made the foundation of defence in the pending suit filed by respondent No: 1 it could not - be possible for the Civil Court to decree the suit of,, respondent No. 1, who certainly on the basis of his claim set out in the suit for pre-emption had an inferior right. Also it is not proved that the consent decree obtained by the appellant was fictitious and sham transaction. There is no evidence on the record to establish the plea of collusion and fraud set up- in the plaint as a fact of the matter. It could not, therefore, be held that the consent decree obtained by the appellant was void and ineffective. Here the two Courts below had erred seriously in observing that the decree was the result of collusion and fraud between the appellant and respondents Nos. 2 and 3 defeating the superior right of pre-emption pre-existed in favour of respondent No. 1 without trial of the issue on that fact. The matter needs trial and it can be decided only after the evidence is produced by the parties.

5. In the above circumstances I set aside the judgment and decrees of the two Courts below leaving the parties to prove their respective claims in the suit for pre-emption filed by respondent No 1. If any amendment of pleadings is considered to be necessary to the fair trial of the matter in controversy, the trial Court shall allow the party to amend the pleadings accordingly and frame proper issues arising out of the pleadings and hold the trial and decide the case in accordance with law. The result is that this appeal is accepted but there is no order as to costs.

R. M, A. Appeal accepted.

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