1988 PLP 38 (CLC)

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), O.VII, R. 8‑‑Pre‑emption suit‑‑Ground of being an owner in estate not taken in plaint‑‑Effect‑ Plaintiff, held, could only succeed on grounds stated in plaint‑‑Ground though proved but not relied upon in plaint, could not be taken notice of unless plaint was properly amended and defendant was given chance of defence thereof. (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 100‑‑Punjab Pre‑emption Act (I of 1913), S. 15‑‑Second appeal against concurrent findings of fact‑‑Scope of interference‑‑Where question in second appeal was of applying correct law to the facts proved on record, High Court would interfere to apply such law while adjudicating such appeal. Kh. Muhammad Farooq for Appellant. Respondent in person. Date of hearing: 25th October, 1987. .This is a defendant‑vendee's second appeal from the judgments and decrees of the Courts below decreeing the pre‑emption suit against him.

2. Land measuring 20 Kls 9 Mls comprised in Khasra 461 situate at Mauza Har Chahar Dhab, Tehsil Chakwal, was owned by Muslim owners, occupancy rights wherein were held by non‑Muslims. On latters' migration to India, occupancy rights were treated as evacuee property and were allotted and confirmed to one Siraj‑ul‑Hasan. On 4‑7‑1964, Siraj‑ul‑Hasan sold these occupancy rights, in Khasra 461 to Muhammad Ashraf for Rs.4,

500. Ghulam Abbas claimed pre‑emption in respect of this sale and sued for possession. Right of pre‑emption was based on grounds of being a co‑owner in the land of which occupancy rights were a part and a co‑sharer in the Khata. Price paid for the land was also denied. Suit was instituted on 3‑7‑1965. Defendant contested the suit. It was pleaded that the suit land was evacuee and its sale was not pre‑emptible. On merits, it was submitted that the land was purchased for Rs.4,500 through a Court decree and that the plaintiff had no right of pre‑emption.

3. On consideration of evidence, oral as well as documentary, trial Court found for the plaintiff, and on 1‑2‑1967 gave him decree for the land in suit on payment of Rs.3,272 to be deposited in Court by 1‑5‑1967. It was held that plaintiff had a superior right of pre‑emption; that the stated considereation i.e. Rs.4,500 was not proved to have been fixed in good faith and actually paid; that the market value of the property was Rs.3,

272. In regard to the right of pre‑emption, learned trial Judge observed "EX.P.1, a copy of Jamabandi of the suit land for the year 1960‑61, shows that Jem, Ghulam Hussain etc. were the owners of the suit land. Jem. Ghulam Hussain has died. Mutation No. 2047, was attested on 13‑5‑1963, about his inheritance, whereby plaintiff was given a share in the suit land. Plaintiff is one of the owners of the suit land. The defendant does not enjoy this status. Occupancy rights have been sold by the occupancy tenant who was holding these rights under the plaintiff. The defendant had no interest in the suit land prior to the sale in dispute. The plaintiff has a superior right of pre‑emption on the ground of his being a co‑sharer in the Khata and also on the basis of his being one of the landlords because the defendant had no interest in the suit land prior to the sale in dispute. This issue is found in the affirmative." In appeal filed by the defendant‑ vendee, finding in regard to right of pre‑emption was affirmed by learned District Judge on 22‑6‑1968 and appeal was dismissed. Learned District Judge discussed the evidence bearing on the right of pre‑emption in para 7 of his judgment and observed" I have heard the learned counsel for the parties. The documents placed on record by the parties justify the findings of the learned trial Court. EX.P.1, the copy of the record of rights clearly shows that the plaintiff‑respondent is one of the owners in the suit land, occupancy rights in which land are the subject of the sale. The learned counsel for the defendant‑appellant has failed to point out any documents showing a similar proprietary title in the suit land in favour of the defendant appellant. The superior right of the plaintiff‑respondent is, therefore, clearly established and I would uphold the finding of the learned trial Court on this issue". Aggrieved of the decision, defendant came up in second appeal to this Court. It was admitted to hearing on 26‑9‑1968.

4. For the appellant, it is contended by Khawaja Muhammad Farooq, Advocate, that the plaintiff, as a mere co‑owner in the Khata of which occupancy rights were part under Section 15, Punjab Pre‑emption Act, 1913, had no right of pre‑emption and the Courts below were erroneous in holding that he had such a right. Plea in regard to the suit being barred by limitation, was not pressed at the hearing.. Mr. Ghulam Abbas respondent who is a practising Advocate himself addressed the Court and argued that the right of pre‑emption was rightly found to exist in him. It was also urged that the pre‑emptor was an owner of estate and on this ground also, he had a better right.

5. From the above, it clearly appears that only point for decision in the second appeal is about the plaintiff's superior right of pre‑emption. On examination of the recorded evidence and hearing of the learned counsel, it is clear to me that learned Judges of the Courts below, to speak with respects to them, have proceeded on wholly incorrect premises, and their judgments cannot be maintained. EX.P.1, copy of Jamabandi prepared for 1960‑61 indicates that ownership rights in Khasra 461 belonged to Muslim owners and the occupancy tenancy rights vested in non‑Muslims. It further appears from Ex.P.l that occupancy tenancy rights were settled upon Siraj‑ul Hasan who sold out these rights to Muhammad Ahsraf vendee‑defendant. Column 3 of the Jamabandi shows that 1/18th share in ownership rights of Khasra 461 belonged to Jem. Ghulam Hussain. On his death, by inheritance mutation 2047 dated 13‑5‑1963, rights held by him were mutated in the names of his legal heirs including Ghulam Abbas. Close reading of this document indicates that Ghulam Abbas was one of the landlords whereunder occupancy rights were held. Question is whether sale of occupancy rights gave him a right of pre‑emption. Under section 15, Punjab Pre‑emption Act, if the occupancy tenant sells his right to any person other than his landlord, his collaterals and co‑tenants can claim pre‑emption but his landlord does not occupy any favourable position. Precisely, section 15 of the aforesaid Act does not grant him any preference in this regard. Decision in Ahmad Khan v. Jang Baz Khan and another AIR 1924 Lahore 210 instead of assisting the respondents, goes against him. Similarly, plaintiff in the capacity of a co‑owner in Khata of which occupancy rights were a part could not claim that he was co‑sharer in the occupancy tenancy also. To succeed as a co‑sharer, he was obliged to prove that he was a co‑sharer in the rights sold. Admittedly, plaintiff had no share in the occupancy tenancy, which rights, were exclusively held by Siraj‑ul‑Hasan who sold these to the defendant‑vendee. Threfore, on the grounds stated in the plaint, plaintiff had no better right. However, the argument that since the defendant was a stranger and was not possessed of any right of pre‑emption, plaintiff through a co‑landlord must succeed, cannot be accepted. A defendant, in the pre‑emption suit, can resist the claim on every possible ground and is not restricted to show that he has also a superior right because a pre‑emptor must depend for his success upon the Act, which provides necessary qualifications for pre‑emption and cannot seek assistance from another Act, namely, Punjab Tenancy Act, the administration of which is not in the hands of the Civil Court. Mr. Ghulam Abbas also argued that plaintiff was owner of the estate and on this ground was entitled to succeed. In the plaint, no such ground was taken. Therefore, even if it be assumed that the plaintiff was an owner of estate, it does not materially assist him. Plaintiff can only succeed on the grounds stated in the plaint and the one though proved butl not relied upon in the plaint, cannot be taken notice of unless the plaint is properly amended and the defendant is given a chance of defence. It was also argued that the grounds in para 3 of the plaintl implied that plaintiff claimed pre‑emption on the ground of being an owner of the estate also. Fair reading of the document does not countenance this construction of pleadings. Lastly, it was argued that this second appeal is concluded by concurrent findings of fact and that the High Court is precluded to go behind these findings. This contention is without susbtance and cannot be accepted. It is not the question of disturbing the findings of fact. Rather, it was a I question of applying correct law to the facts proved on record, and this, I think, is the clear duty of the Court. No other point was urged.

6. For the reasons given above, appeal is allowed, impugned judgments and decrees are set aside and the plaintiff's suit is dismissed, but with no order as to costs. A.A./fit‑438/1, Appeal allowed.