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Regular Second Appeal No.264 of 1985, decided on 20th September, 1987.

---S.15--Suit for pre-emption--Lis pendens--Doctrine of--Sinker, principle of--Suit of appellants for pre-emption on sole qualification of being sons of the vendor resisted by respondents maintaining that they were tenants of land on date of sale and as such had first right of pre-emption-- Respondents found to have got entry (in revenue record) corrected during pendency of suit so as to show all of them to be tenants--Appellants opposing claim of respondents on ground that only one of them was tenant on date of sale, correction made subsequently was ineffective in law and having joined others in sale, even true tenant had lost his right on doctrine of sinker--Administrative act of effecting correction in entries from a retrospective date should not affect judicial proceedings--Doctrine of lis pendens, held, would apply to case and conditions obtaining on date of sale shall have to be kept in view and in instant case on date of sale only one of respondents being recorded as tenant, subsequently making others also such tenants was of no consequence against appellants whose suit was then pending--Any change in two situations from a back date so as to injuriously affect a third party's suit for pre-emption was to be avoided--Such change having been brought behind the back of appellants would not be allowed to operate against their interest-- Tenant-vendee having joined with himself non-tenants in sale would, under principle of sinker, reduce him to the latter's level and all respondents would lose to appellants--Impugned judgment and decree of Lower Appellate Court set aside and appellant's suit decreed for possession through pre-emption subject to deposit of specified amount failing which suit would stand dismissed.

Muhammad Safdar Ali Iqbal v. Sher Muhammad and 2 others 1980 C L C 520; Riaz Ahmad v. Um-e-Salma 1985 SCMR 1740 and RFANo.125 of 1983 ref.

Mst.Gulab Khatoon v. Muhammad Yaqub and another P L D 1964 (W.P.) Lah. 324 cited.

Syed Munir Hussain Shah for Appellant No.1.

Shahid Mehmood for Respondents.

Date of hearing: 20th September, 1987.

This Regular Second Appeal arises from the judgment/decree dated the 16th of April, 1985, of the learned Additional District Judge, Gujranwala, whereby the appellants /pre-emptors first appeal was dismissed.

2. The respondents-vendees purchased the suit land on the 6th of March, 1978, and were sued for pre-emption by the appellants on the sole qualification of being sons of the vendor. The respondents resisted the suit maintaining that they were tenants of the land on the date of sale and as such had the first right of pre-emption. In fact, during pendency of the suit, the respondents got the entry corrected so as to show all of them to be tenants. The appellants opposed it on the ground that only one of them, namely, Haji Muhammad Tufail was tenant on the date of sale and that correction made subsequently in order to show others as co-tenants was ineffective in law. Further, it was urged that having joined others in the sale, even the true tenant had lost his right.

3. Appropriate issues were framed and tried. Both the courts below spurned the objection of the appellants concurring in dismissing the suit.

4. It is not denied that on the date of sale only one of the vendees, namely, Haji Muhammad Tufail was recorded as tenant. It is further not denied that after the institution of the present suit, the respondents moved an application before Revenue Authorities for correcting the entry so as to show all the four of them to be co-tenants for the land in dispute. Obviously this amendment was made with retrospective effect. The rule enunciated in Muhammad Safdar Ali Iqbal v. Sher Muhammad and 2 others 1980 C L C (Lah.) 520 was that though correction of Revenue entries could be allowed as an administrative function, yet the same could not, being purely a fiscal matter, affect judicial matters wherein a solemn right of pre-emption is agitated. Further, support was sought from Riaz . Ahmad v. Um-e-Salma 1985 S C M R 1740 wherein entries found in the course of crop inspection were held not to be applicable back to the sowing season. In other words, the entries as stood on the date of inspection were to be kept in view.

5. Mr. Shahid Mahmood for the respondents submitted that the above Muhammad Safdar Ali Iqbal's case has already been challenged before the Supreme Court and that the other case related only to see as to what entry existed on the date of inspection rather than the sale. Lastly, he added that the correction made by the Revenue Authorities in their exclusive jurisdiction could be assailed before them in a higher forum and that this was no place to assail their authenticity. Reliance was placed on Mst. Gulab Khatoon v. Muhammad Yaqub and-another PLD 1964 (W.P.) Lah. 324 in this behalf.

6. I think the facts of the case attract the rule laid down in Riaz Ahmad's case more appropriately. The administrative act of effecting correction in entries from a retrospective date should not affect the judicial proceedings. The doctrine of lis pendens would apply and the conditions as obtaining on the date of sale shall have to be kept in view. Here, on the date of sale only one of the respondents was recorded as tenant. Subsequently making others also such tenants was of no consequence against the appellants whose suit was then pending. Support for this view can be drawn also from the rule laid down by the Supreme Court in the Riaz Ahmad's case. Although it does not directly relate to the date of sale and instead relates to the date of inspection of crops, yet the analogy remains to be the same. The idea is to avoid any change in the two situations from a back date so as to injuriously affect a third party's suit for pre-emption. It is not the respondents' case that they had Joined the appellants before the Revenue Authorities while trying to show themselves tenants. Evidently any such change in the entry would completely efface the appellants' claim and they ought to have been heard. For this reason too, anything done against them behind their back may 'not be allowed to operate against their interest. As a result, I am not inclined to agree to the finding of the lower appellate Court on the point and reverse the same;

7. Sinker shall also help the appellants. It has already been held by a Division Bench in R.F.A. No.125 of 1983, of which incidentally I was a member, that in the Punjab- Sinker has been as a matter of history applied. The tenant-vendee joined with himself non-tenants in the sale. This joinder will reduce him to the latters' level and all of them will lose to the appellants. Consequently the R.S.A. is accepted, the impugned judgment/decree of the lower appellate Court are set aside and instead the appellants' suit is decreed for possession through pre-emption subject to deposit of a sum of Rs.50,000 including the one-fifth pre-emption amount, by or before the 22nd of November, 1987. Failing this deposit in time, the suit shall stand dismissed. Again, the deposit shall be made only if it has not already been done. Parties are left to bear their own costs.

S.Q./A-178/L Appeal accepted.

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