1985 PLP 1749 (SCMR)

Bashir Ahmad Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents. Date of hearing: 2nd June, 1985. SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the defendant vendee in a pre‑emption matter to examine whether her admission with regard to the superior right of the pre‑emptor had not been misunderstood, misinterpreted and wrongly 'made the basis of decisions culminating in the dismissal of her Regular Second Appeal by the Lahore High Court on 2‑5‑1979. By a mutation of sale attested on 29‑12‑1963 the appellant purchased 5 Kanals 7 Marlas of land in village Mirjan, Tehsil Talagang, District Campbellpur. The land purchased comprised two Khewats. Khewat Nos. 345 comprising five Khasra numbers measuring 5 Kanals 6 Marlas was sold alongwith 1/10th share in 8 Marlas described as running well of Khewat No. 355 comprising one Khasra number only. This entire land was earlier to sale evacuee land settled on the vendor under the Displaced Persons (Land Settlement) Act, 1958. The plaintiff respondent instituted a civil suit on the 2nd of January, 1965 pre‑empting the sale on the ground that the land in the Khata was his ancestral, that he was a co‑sharer in it and that he owned land in the Shamlat against this proprietary land. In the first round of litigation the contest centered round the issues whether the sale was at all pre‑emptible and the civil Court had jurisdiction in the matter as it was a land allotted and confirmed under the Displaced Persons (Land Settlement) Act. These issues were finally decided on 3‑9‑1974 and the case came to be decided on merits by the Civil Judge on 15‑11‑1975. The main contest was thereafter on the issues of superiority of the right of pre‑emptor and of his suit being within limitation. With regard to the first the trial Court in its judgment, dated 15‑11‑1975 observed as follows:‑ "The plaintiff is one of the co‑owners in the disputed Khata. Even the learned counsel for the defendants admitted this fact while arguing this issue. Hence while relying upon the unrebutted documentary evidence I decide this issue in favour of the plaintiff." The appellate Court in its judgment, dated 9‑4‑1979 decided the same question as follows:‑. "Even before this Court no arguments have been advanced on this issue, and as such the finding of 'the trial Court on this issue is upheld." The High Court in Regular Second Appeal decided it on 2‑5‑1979 in following terms:‑ "Whether or not the respondent was a co‑sharer of both the Khatas referred to above or one Khata only is a question of fact and not of law and since the appellants had conceded before the two Courts below the position taken by the respondents on the aforesaid question they cannot at the stage of second appeal be allowed to assail the findings of fact recorded by the said Courts. Learned counsel for the appellants submitted that the appellants' counsel did not concede the respondents' right of pre‑emption before the first appellate Court but there is no affidavit of the counsel concerned in this regard. I, therefore, see no good reason to disbelieve what the learned Additional District Judge has stated. In the circumstances the concurrent' finding of the two Courts below on the issue relating to the right of pre‑emption is not open to any legitimate exception." In this background of the findings recorded by the three Courts, the learned counsel for the appellant contended that the appellant had throughout been challenging the superiority of the right of the plaintiff. This gets support from the grounds taken up in the memo. of appeal and from the written arguments submitted before the District Judge which is referred to in his grounds of appeal clause (e) before the High Court. The contention was that the plaintiff pre‑emptor being a co‑sharer in Khewat No. 355 was not disputed by the appellant and got full support from the revenue record and the evidence produced at the trial. However, with regard to Khewat No. 345 comprising 5 Kanals 6 Marlas there was no admission by the appellant at any stage of the proceedings that the plaintiff was a co‑sharer nor could there be such an admission because revenue record clearly showed it to be the exclusive ownership of the vendor. In the circumstances, the admission made by the appellant was confined to only a part of the land, a very small part indeed, and it could not be extended to cover the other Khewat also. To this extent all the Courts have committed a mistake in under standing the admission of the appellant, in interpreting the revenue record exhibited and in appreciating the evidence led at the trial. As regards the ownership of the pre‑emptor in the estate and a superiority on account of it, the learned counsel pleaded that the ownership of a share in a running well does not qualify him as the owner of an estate and he could not on the strength of co‑sharership in Khewat No. 355 improve his case any better. Besides, this specific question of his being a co‑sharer of estate has not been dealt with by any Court. Similarly, his claim to be an owner in the Shamlat and on account of it, to be an owner of the estate has not been considered by any of the Courts. With these objections, the learned counsel for the appellant contended that the superior right of pre‑emption of the plaintiff was not established in respect of Khewat No. 345 and the impugned judgment and decree cannot be sustained. The learned counsel for the respondent contended that the plaintiff had claimed superior right of pre‑emption and the issue framed did not contain any specific ground on which it was based. It was in general terms and therefore reflected all the grounds which were taken in the plaint and denied by the appellant. The grounds included the ownership in the village or in the estate. What was conceded was not co‑sharership in a particular Khewat or Khata but the superior right of pre‑emption as such and the admission was rightly understood and given effect to by all the three Courts. The learned counsel has also taken pains to point out how at every stage of the trial, even during proceedings which related to pre‑emptibility of the land and the jurisdiction of the civil Court, such an admission was made by the appellant and always re‑affirmed. After hearing the learned counsels for the parties, we find that in fact the revenue record exhibited at the trial shows that the plaintiff pre‑emptor was a co‑sharer in Khewat No. 355 only and not Khewat No. 345 comprising the major portion of the land which was the subject matter of suit. The written arguments appear to have been submitted before the District Judge as they are specifically mentioned in the grounds of appeal filed before the High Court. The pleadings of the parties have that excusable imprecision, a feature of a Moffasil pleadings and cannot be decisive of the point in issue at this stage. It does appear that the admission of the appellant relating to Khewat No. 355 was misunderstood by all the Courts to extend to the entire suit property. This was patently an erroneous supposition. As regards the other grounds of superiority of the pre‑emption right of the plaintiff of his being owner of the estate, we find that none of the Courts has shown awareness of it nor has it determined its factual basis. The so‑called admission was supposed to foreclose any discussion on this issue. As these questions of fact have necessarily to be decided with full awareness of the precise controversy, we accept this appeal, set aside the judgments and decrees of all the three Courts and remand the case to the trial Court for decision afresh on the question of superiority of the pre‑emption claim of the plaintiff respondent. No order as to costs. The record shall be sent to the District Judge so as to be entrusted to a Civil Judge of competent jurisdiction. AS the case has remained pending since long care will be taken to expedite its disposal. M . B . A . Appeal accepted