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Civil Revisions Nos. 213 and 214 of 1984, decided on 30th November, 1925.

‑‑ S. 19‑Sinker, principle of‑Applicability‑Purchaser having superior/equal right of pre‑emption, by joining stranger having no right of pre‑emption in purchasing. land, held, would lose .preferen tial right and would be relegated to status of stranger.

P L J 1984 Pesh. 21 ref.

‑‑ Ss. 16 & 17(2)‑ Improvement of status‑‑Requirement‑Relega tion to inferior status of stranger vendee, of person having supe rior/equal right of pre‑emption, held, could be remedied by purchase of stranger co‑vendees share before institution of suit and also before expiry of period of limitation by such holder of superior/equal right of pre‑emption.

P L D 1976 S C 572 ; P L D 1982 S C 82 ; P L 1 1984 Pesh. 21 and Mehr Allah Ditta v. Muhammad Ali P L D 1972 S C 59 ref.

‑‑ S. 29‑Extinction of right of pre‑empt ion‑Ownership of agricul tural land/immovable property lost by enforcement of right of pre emption, held, would result in extinction of claim or plea based upon right of pre‑emption derived from such ownership.

Syed Abdur Salam Sarwar for Petitioners.

Haji Ghulam Basit for Respondent.

Fazal‑i‑Hussain as Amicus Curiae.

Dates of hearing : 27th October and 23rd November, 1985.

Civil Revisions Nos. 213 and 214 of 1984, arise in the background of facts that Khata No. 69/105 comprised of Khasra Nos. 333, 349 and 352 measuring 40 Kanals 3 Marlas situate in village Khido‑Pinja, Tehsil Haripur, District Abbottabad, was owned by Mehboob Ilahi in 1 /3rd share, Sultan Muhammad 1/3rd and Banaras and Younus sons of Ghulam Muhammad also jointly 1/3rd share. Leaving aside other alienations Mehboob Ilahi had transferred, 1 /40th share out of the three Khasras numbers through exchange mutation No. 423, dated 25‑9‑1978 in favour of Qalandar son of Nadir (petitioner No. 1). Similarly, vide mutation No. 425, dated 25‑9‑1978, Mehboob Ilahi bad transferred I/ 0th share out of the three Khasra numbers in favour of Muhammad Younas, Muhammad Aslam and Muhammad Ashraf (petitioners Nos. 3 to 5). The above two transactions were not subjected to any right of pre‑emp tion. Petitioners Nos. 1 and 3 to 5 were as such the co‑owners in Khata No. 69/106 when they had joined Muhammad Akram (petitioner No. 2) in purchasing 17/60 share out of the said three Khasra numbers in the Khata, vide mutation No. 428, dated 27‑11‑1978. The vendees‑petitioners had later on purchased some more land from Khasra No. 333, vide Mutation No. 429, dated 27‑11‑1978.

2. Mir Haider son of Gulab, a contiguous owner of Khasra Nos. 333 and 349 had brought two pre‑emption suits as against defen dants Nos. 1 to 5 (petitioners). Suit No. 310 was instituted with respect to Khasra No. 333 purchased by the vendees‑petitioners, vide mutation No. '429 while Suit No. 312/1 was simultaneously filed with respect to Khasras Nos. 333 and 349 purchased by the vendees‑petitioners, vide mutation No. 428, leaving Khasra No. 352 as with regard to which his right of pre‑emption did not extend.

3. Muhammad Akram had transferred his share in Khasras Nos. 333. 349 and 352 on 28‑10‑1979, earlier acquired by him, vide mutations Nos. 428 and 429 to Muhammad Younus petitioner No. 3. a co owner‑vendee before the expiry of period of limitation for a pre‑emption suit, however, subsequent. to the institution of the pre‑emption suits by Mir Haider, the respondent.

4. Both the suits proceeded independently through self‑contained files without objection from either side that the proceedings in one be stayed as a claim or plea on aright of pre‑emption derived from the acquisition of ownership of the land through a mutation, also at the same time independently pre‑empted, was co‑relative and liable to be defeated. The learned Civil Judge dismissed the suits under reasoning that Muhammad Akram the stranger and since transferred his share to Muhammad Younas a co‑owner, no doubt, during the pendency of the suits but before the expiry of the period of limitation resulting in the removal of the disability of the other/co‑owners thereby and that a contiguous owner pre‑emptor did not continue to have a subsisting right of pre‑emption as against the vendees co‑owner. On the other hand the learned Additional District Judge, while accepting the appeals, held that the transfer by defendant Muhammad Akram a stranger during the pendency of suits was an act of improvement of status by the co‑owners‑vendees which they could not do after the institution of suits for pre‑emption as improvement otherwise than through inheritance or succession was not to affect the right of the pre‑emptor where against the present revision peti tions have been filed by the vendees.

5. Syed Abdus Salam Sarwar, Advocate represented the vendee‑peti tioners and Haji Ghulam Basit, Advocate the pre‑emptor respondent while the services of Malik Fazal Hussain, Advocate were procured at the request of the learned counsel for the parties to assist the Court as amicus curiae. After hearing the learned counsel at considerable length the questions of applicability of the principle of sinker, provisions of section 29 of the N.‑W. F. P. Pre‑emption Act, 1950, and the superior right of pre‑emp tion, as mainly involved in the cases, are discussed as follows.

6. As stated earlier Qalandar, Muhammad Younus, Muhammad Aslam and Muhammad Ashraf vendees‑petitioners Nos. 1 and 3 to 5 had become co‑sharers in the suit Khata comprising Khasra Nos. 333, 349 and 352 vide mutations Nos. 423 and 425 not subjected to any right of pre emption and as and when they had joined Muhammad Akram vendee petitioner No. 2, a stranger having no right of pre‑emption, in purchasing the suit land, vide mutations Nos. 428 and 429 they shall be deemed to have lost their preferential right of co‑sharership and to have relegated themselves to the status of Muhammad Akram vendee‑petitioner No. 2, a stranger. Since Muhammad Akram vendee‑petitioner No. 2 has late on sold his share in the suit land to Muhammad Younas, a co‑owner by a registered deed, dated 8‑4‑1979, before the expiry of the period of limita tion for a pre‑emption suit but subsequent to the institution of the pre‑emption suits by Mir Haider, the respondent. it was argued that the situation was remedied and that the loss of the right of pre‑emption on account of doctrine of sinker by the co‑owners‑vendees shall be deemed restored. In support of the view reliance was placed on P L D 1980 Pesh. 21 in which it was held that the doctrine of sinker was not permanent or irremediable and that if a co‑vendee with a right of pre‑emption also obtains the share of stranger vendee within the period of limitation even after the institution of the suit he would be entitled to successfully resist the pre‑emption suit on the strength of his right of pre‑emption and that the principle of sinker shall not apply in the circumstances. In fact the said authority has dwelt upon the rule laid down in section 16 of the pre‑emption Act whereunder the explanation thereto the subsisting right of pre‑emption can be defeated by the vendee if before the expiry of the period of limitation provided for a suit for pre‑emption lie transfers the property in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff. Subsection (2) of section 17 of the Pre emption Act was not referred and adhered to which prohibits the improve ment in the status by a vendee‑defendant after the institution of a suit for pre‑emption otherwise than through inheritance or succession. In the facts of the case the co‑owners‑vendees with a superior right to the pre‑emptor‑respondent, a contiguous owner had relegated themselves to the inferior status of a stranger‑vendee by joining him in purchasing the suit land at ‑the very time of the purchases and they could have remedied their disqualification, no doubt, if before the institution of the suits and also before the expiry of the period of limitation prescribed for the pre‑emption suits they had purchased the share of the stranger‑vendee in which case they were not to be hit by the mischief contained in the explanation added to section 16 and the provisions of subsection (2) of section 17 of the Pre‑emption Act. The explanation of section 16 provides that the subsist ing right of pre‑emption shall not be lost if the property is transferred lo to a person having a right of pre‑emption equal or superior to that of the plaintiff after the expiry of the period of limitation and necessarily such a transfer will not occasion any improvement in the status of the vendee within the meaning of. subsection (2) of section 17 as the pre emptor‑plaintiff must have since instituted his suit for pre‑emption within the prescribed period of limitation. The explanation of section 16 and the provisions of subsection (2) of section 17 are supplementing each other laying bars and restrictions for vendee‑defendant to defeat the plaintiff's right of pre‑emption by a device to transfer the property in dispute to a person having a right of pre‑emption equal or superior to that of the plaintiff after the expiry of the period of limitation provided for a suit for pre‑emption or/and to improve his own status otherwise than through inheritance or succession after tire institution of a suit for pre‑emption.

7. P L D 1976 S C 572 and P L D 1982 S C 82 were not unfortunately referred to in P L J 1984 Pesh. 21 before the learned Single Bench. In the one the Supreme Court, in view of the distinguishing features of the N.‑W. F. P. Pre‑emption Law, approved the view that a pre‑emptor joining a stranger in a pre‑emption suit sinks himself to the status of a stranger and the disqualification is not remediable by elimination of the stranger under Order 1, rule 10, C. P. C. The rule laid down in Mehr Allah Ditta v. Muhammad Ali (PLD1972SC59), under the Punjab Pre‑emption Law that the joining of a stranger as a co‑plaintiff in a suit for pre‑emption is a curable defect and that superior pre‑emptor can pursue his suit to a successful and if during the pendency of the suit a stranger is eliminated from the array of plaintiffs, was confined in the application cnly to the territories in which the Punjab Law as pre‑emption was applic able. In the other authority to the Supreme Court considered it a case of improvement in status by the vendee as envisaged under subsection (2) of section 17 of the N.‑W. F. P. Pre‑emption Act when he has purchased the share of stranger co‑vendee after the institution of the suit. The Supreme Court did not consider it a case of removal of an infirmity or disability on the part of a co‑owner‑vendee which he suffered earlier by having joined a stranger alongwith him in the purchase of the property and had later on purchased the share of the stranger co‑vendee after the institution of the suit.

8. We thus come to that a disability is incurred by a plaintiff the moment he loins in suing jointly with a stranger and correspondingly disability is incurred by a vendee when he joins with him a stranger and in either case he is relegated to the status of a stranger and the defect cannot be remedied by the plaintiff in eliminating the stranger co‑plaintiff and correspondingly by the vendee in purchasing the share of the stranger co‑vendee after the institution of the suit for pre emption. Herein the vendees‑petitioners Nos. 1 and 3 to 5 having become the co‑owners by virtues of mutations Nos. 423 and 425 had relegated themselves to the status of stranger vendee petitioner No. 2 in joining him in purchasing the suit land. The subsequent transfer by him in favour of the co‑owner‑vendee petitioner No. 3 after the institution of the suit shall not cause the removal of disability incurred by the co‑owner‑vendees as they stand debarred to improve their status otherwise through inherit ance or succession after the institution of the suit as laid down under sub section (2) of section 17 of the Pre‑emption Act.

9. The second question is the application of 'section 29 of the Pre emption Act. The vendees had purchased the suit land in the Khata by virtue of mutations Nos, 428 and 429. Although both the mutation were simultaneously entered and attested on 30‑9‑1978 and 27‑11‑1978, respectively, it shall, however, be presumed, unless proved to the con trary, that the transaction effected, vide mutation No. 428 was prior in time than the transaction effected vide mutation No. 429. Thus, in the facts of the case the vendees could agitate a plea of right of pre‑emption derived from the ownership of land purchased. vide mutation No. 429 to defeat the plaintiff's right of pre‑emption in the suit relating to muta tion No. 428 and the Court was‑to stay the proceedings in the suit relating to mutation No. 428 till the decision of the suit relating to muta tion No. 429 as envisaged b5‑ the mandatory provisions of section 29 of the Pre‑emption Act. In case the plaintiff was to succeed in his suit relating to mutation No. 429 the Court was to proceed with the trial of the suit relating to mutation No. 428 and in case the plaintiff was to lose his case of mutation No. 429 he was also to lose his case of mutation No. 428.

10. Unfortunately both before the trial Court and the appellate Court the point was neither raised by the parties nor there was taken a notice of by the Courts and the lapse was only noticed during the hearing of the instant revision petitions by this Court. One course is to follow the mandatory provisions of section 29 of the Pre‑emption Act and to remand the cases to the trial Court with direction to stay proceedings in the suit relating to mutation No. 428 and proceed with the suit relating to mutation No. 429 and that only after the decision one way or the other in the said suit the pre‑emption suit of mutation No. 428 be taken up for decision the other course 1s that since evidence in both the cases has been recorded and the parties have not to adduce some more evidence In the cases hence the Court may accordingly assume that the proceedings in suit relating to mutation No. 428 age stayed and may proceed firstly to decide the suit relating to mutation No. 429.

11. By mutation No. 428 the vendees‑petitioners purchased land in Khasra Nos. 333, 349 and 352 while the plaintiff respondent pre‑empted only Khasra Nos. 333 and 349 on the basis of contiguity and did not pre empt Khasra No. 352 as his right of ere‑emption did not extend thereto. Defendants‑petitioners shall thus continue to be the owners in Khasra No. 352 and so owners in Khata No. 69/106 and the plaintiff, a contigu ous owner of Khasra No. 332, was not to have a superior right of pre emption as against them in the suit relating to Khasra No. 333 sold, vide mutation No. 429. Here a reference we made to a Full Bench Authority published in P L D 19.5 Pesh. 218 laying down a rule that a vendee cannot. defeat pre‑emptor's claim to land contiguous to his land on ground that he is to remain co‑sharer in the Khata after the decree as he had pur chased more Khasra numbers than one situated in the same Khata while pre‑emptor has been granted a decree for such Khasra numbers as are contiguous to his land. In para. 10 of the judgment a reasoning was advanced that although Khata Is not entered in the revenue record imme diately and the matter has to wait till the next judgment but notionally the separation is complete and effective as soon the pre‑emptor succeeds to a part only and the property ceases to be joint. Under the above reason ing one may hold that in the facts of the case Khata was to remain intact till at or after mutation No. 428 since there could ‑ be worked out specified shares of the co‑owners in the suit Khata. Anyhow after muta tion No. 429 the shares of the co‑owners in respect of Khasra No. 333 could not be worked out with specification and there was to be allotted a separate Khata to the said Khasra number. But such an eventuality has arise after the completion of the transaction vide mutation No. 429 and not before or at the time of the said mutation and till then Khasra No. 333 shall also be deemed a part of the suit Khata. Were the peti tioners the pre‑emptors, they were to be the losers as they were not to continue with a subsisting right of pre‑emption at all the relevant stages of sale, institution and decree but as they are the vendees and the pre emptor‑respondent has to prove his superior right of pre‑emption at all the relevant stages against them when he has not been found to possess a superior right of pre‑emption at the time of sale per mutation No. 429 for vendees had already become co‑owners, vide mutation No. 428 whose rights in Khasra No. 352 had become indefeasible with regard there has not been brought a pre‑emption suit. In the circumstances the plaintiff respondent shall stand non-suited in case of Khasra No. 333 sold, vide) mutation No. 429.

12. As far suit relating to mutation No. 428 is concerned plaintiff‑respondent shall also fail for his failure in his pre‑emption suit relating to mutation No. 429 since as a result the co‑ownership rights of the vendees petitioners in Khasra No. 333 had remained intact. Aks‑Shajra‑Kishtwar shows Khasra No. 333 contiguous to Khasra No. 332 of the ownership of the plaintiff and shows Khasra No. 349 onward contiguous to Khasra No. 333. Plaintiff was to pre‑empt the two Khasra numbers on the basis of block contiguity. Plaintiff‑respondent shall not have a subsisting right of pre‑emption in respect of the sale effected, vide mutation No. 428.

13. As a sequel to the aforegoing discussion I would accept the revision petitions, set aside the judgments and decrees of the appellate Court and restore those of the trial Court and as a result would dismiss the suits, leaving the parties to bear their own costs throughout.

A. A.

Revisions accepted.

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