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---S. 4--Qanun-e-Shahadat Order (10 of 1984), Art. 118--Waiver of right of pre-emption--Proof--In absence of evidence on factum of waiver, burden of proof thereof, held, would not be discharged.

Ashiq Ali Khan v. Shaffi Ali Khan and others A I R 1927 Lah. 872(2) and Gul Muhammad v. Mst. Iqbal Jan A I R 1942 Pesh. 94 ref.

--S. 21--Qanun-e-Shahadat Order (10 of 1984), Art. 118--Civil Procedure Code (V of 1908), S. 96--Pre-emption suit--Plea of defence that plaintiff was acting as Benami in such suit--Proof--No evidence available to prove existence of arrangement between plaintiff and third person whereby such third person could become invested with decree to be ultimately passed in suit--Mere financing of litigation, held, would be too inadequate a basis to conclude that such third person could be actual beneficiary of litigation--No legal bar present against a litigant raising funds from his friends and well-wishers for purpose of his suit--Finding on issue of waiver by Trial Court being unexceptionable was upheld by High Court in appellate jurisdiction.

Ramsukh Das v. Fazal-ud-Din and others 19 P R 1898; Sheru v. Jawahir Singh 58 P R 1912 and Mahmud Bux v. Hassan Bakhsh and others 7 P R 1912 ref.

--S. 15--Superior right of pre-emption, proof of--Pre-emptor being vendor's brother's son and also a co-sharer in suit land, held, would have superior right of pre-emption qua vendees who had claimed no such right.

P.A. Farooqi for Petitioner.

AMJAD KHAN., J.--Respondent filed a suit for possession through pre-emption of 33 Kanals and 6) Marlas of land situated in Chak No. 15/A, Liaqatpur, purchased by the appellants, Rehmat Ali and Ghulam Rasool, for an ostensible price of Rs.70,000 by means of a registered deed, dated 6-7-1978. Vendees denied his claim and contested the suit by raising the plea of waiver of right of pre-emption and also pleading that the suit had been filed for the benefit of Faiz Bakhsh and others. Suit was set down to be tried on the following issues:-

"(1) Whether the suit has been filed for the benefit of some other person If so, its effect 0 . P . D .

(2) Whether the plaintiff has waived his right of pre-emption, if any O.P.D.

(3) Whether the plaintiff has got a superior right of pre-emption O. P. P.

(4) Whether the sum of Rs.70,000 was fixed in good faith or actually paid O. P. D.

(5) If issue No. 4 is not proved, what was the market value of the suit land at the time of its impugned sale 9.P.Ps.

(6) Whether the suit is incorrectly valued and the plaint is insufficiently stamped O. P. D

(7) Relief."

Apart from documentary evidence led for proving his superior right of pre-emption, the plaintiff examined Manzoor Ahmad as P.W. 1 and he himself appeared as P.W. 2 and the vendees examined Nazir Ahmad, a Bank Accountant, as D.W. 1, Manzoor Ahmad as D.W. 2 and Ghulam Rasul, one of the vendees himself entered the witness-box as D.W. 3.

2. After considering the evidence of the parties, learned trial Judge found issues Nos. 1, 2 and 3 in favour of the plaintiff and whereas issue No. 6 was not pressed and was decided against the vendees, issue No. 5 was rendered redundant on account of finding under issue No. 4 recorded in favour of the vendees. Consequently, a decree was passed on 10-3-1986 in favour of the plaintiff on payment of Rs.70,000 on or before 15-4-1986.

3. Vendees have filed this First Appeal against the trial Court's decree to challenge its findings under the first three issues. Trial Court's record has been summoned and perused.

4. Contention of the learned counsel is that first three issues have, been decided wrongly, contrary to the evidence on the record. This broad proposition is not quite correct because so far as issue No. 2 is concerned, there is no evidence worth even the name led by the defendants and muchless has any fact or circumstance been brought on the record which may be capable of leading to the conclusion that the plaintiff may have waived his right of pre-emption and even the vendee himself, while appearing as D.W. 3, has not made any statement whatever on the point. Therefore, trial Court has rightly held that burden off proof of issue No. 2 has not been discharged.

5. As regards issue No. 1, law laid down in Ashiq Ali Khan v. Shaff: Ali Khan and others A I R 1927 Lah. 872(2) is that strong and clear evidence is required to prove that the object of the plaintiff was really to secure the land for someone else. To the same effect is also the view expressed in Gul Muhammad v. Mst. Iqbal Jan A I R 1942 Pesh. 94 that motive or intention of a pre-emptor has nothing to do with a suit for pre-emption.

Whereas the plea raised by the defendants in their written statement in this case is that the suit has been filed by the plaintiff for the benefit of "Faiz Bakhsh and others", the only evidence tendered on the point is that of D.W. 2 and Ghulam Rasul, one of the vendees, who has appeared as D.W. 3. Both of them have stated that the suit has been filed for the benefit of Faiz Bakhsh Lambardar and have not named any other person in this behalf. The vendee has, in addition, stated also that Faiz Bakhsh provides the money and also does everything else. Even if this feeble assertion about Faiz Bakhah providing founds to the plaintiff for this suit, is accepted to have been proved, it is not enough for a conclusion that he is the real beneficiary of the suit and the plaintiff is acting as a mere figurehead. There is no evidence at all led in this case to prove the existence of an arrangement between the plaintiff and Faiz Bakhsh whereby it may be possible for the latter to become invented with the decree to be ultimately passed in this suit and his mere financing of this litigation is too inadequate a basis to conclude that he may be the actual beneficiary of the litigation because there is no legal bar in a litigant raising funds from his friends and well-wishers for the purposes of his suit and there is no good reason to make an exception thereabout with regard to a pre-emptor in respect of his pre-emption suit so that nothing material for the purposes hereof comes out of Faiz Bakhsh having financed the plaintiff. It Das v. Fazal-ud-Din and others 19 P R 1898, it was held:-

..that when it is proved that a plaintiff in a pre-emption suit is acting benami that is, that another person will, on the plea that he is the real purchaser, be entitled to take from plaintiff whatever may be decreed to him, the Court should refuse the nominal plaintiff a decree. But this is not an authority for holding that a plaintiff may not enter into any agreement with others as to what he will do with the land if he gets it, and thus raise funds for the maintenance of his suit. In such a case the plaintiff is entitled to his decree, and if after obtaining it he proceeds to transfer the land, a fresh cause of action will arise to other pre-emptors. It would obviously be most inconvenient and improper to try suit or pre-emption, not or. the true issues of the case itself, but on side issues raised by pleas of the defendant as to agreements alleged to have been entered into by the plaintiff as to the future disposal of the property.

To the same effect is also Sheru v. Jawahir Singh 58 P R 1912 and, again, in Mahmud Bux v. Hassan Bakhsh and others 7 P R 1912 it was held: -

A man who has a right to pre-empt has merely to produce the money just as any other purchaser; he can no more be asked what are you going to do with the land, or where did you raise the money, than any purchaser in a shop could be asked such questions by the shop keeper. The pre-emptor has nothing to do but to prove his right to take over the bargain and when he has proved this right all that he had left to do is to produce the money within the time fixed by the Court. If in any such case the pre-emptor is buying the property for an outsider, and if after securing the property, he transfers it to the latter, it may be open to another pre-emptor to challenge the second transfer and to claim pre-emption in respect thereof. This right is, in our opinion a sufficient -safeguard against Benami transactions of the kind.

6. In the above state of the evidence and the law, the finding off the trial Court under issue No. 1 is unexceptionable and is upheld .

7. Superior right of pre-emption of the plaintiff under issue No. 3, stands established on the basis of Jamabandi Exh. P. 1, in his being a brother's son of the vendor and also due to his being a co-sharer in the Khata of the suit land on account of a registered deed of gift, dated 5-3-1978 (Exh. P. 5) made by his father, four months before the sale in suit. Vendees have not at all claimed such a right for themselves and the trial Court's finding under issue No. 3 is' also correct and is accordingly confirmed.

8. No other point has been argued by the learned counsel.

9. There is no merit in this First Appeal which is accordingly dismissed in limine.

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