2022 PLP 650 (YLR)

AHMAD NADEEM ARSHAD, J.

The appellants/legal heirs of the plaintiff filed the instant Regular Second Appeal against the judgment and decree dated 28.05.2009 passed by the learned appellate Court whereby while allowing the appeal of the respondents/defendants, set-aside the judgment and decree dated 22.05.2004 of learned trial Court and resultantly dismissed the suit for possession through pre-emption.

2. Precise facts of the case are that the predecessor of appellants/plaintiff instituted a suit for possession through pre-emption under the Punjab Pre-emption Act, 1913 on 01.10.1979 initially against respondents Nos.1 to 6/defendants Nos.1 to 6, subsequently added respondent No.7/defendant No. 7 with regard to the land measuring 28-kanals (hereinafter called as suit property) by contending that his father namely Ghazi Muhammad son of Allah Bukhsh happened to alienate his landed property by way of sale for a consideration of Rs.28,000/- vide registered sale deed No.2644 dated 03.10.1978 but actually its price was settled and paid as Rs.14000/-. The plaintiff/predecessor of appellants pre-empted the aforementioned sale by using his right of pre-emption on the ground of having the preferential right of pre-emption qua the defendants/ vendees being the son of Vendor, as his heir (Yak Jaddi of the vendor), co-sharer in the joint khata and khewat holder in the Mauza. The respondents/defendants contested the suit by controverting the contentions of the plaint and raised many legal as well as factual objections in their written statement qua the valuation of the suit for the purpose of court fee and jurisdiction; misdescription of the suit property; partial pre-emption; limitation, estoppal/ waiver; depositing of zar-e-punjum beyond the prescribed time limit. The respondents / defendants specifically pleaded in their written statement that the suit is Benami and collusive; that the plaintiff was present at the time of bargain and he himself bargained and got completed the sale; that the plaintiff was present at the time of execution of sale deed and in this way he waived his right of pre-emption. The learned trial Court framed necessary issues with regard to controversies as evinced from the pleadings of the parties and invited the parties to produce their respective evidence in support of their contentions and after recording evidence pro and contra and providing them proper opportunity of hearing dismissed the suit vide judgment and decree dated 27.07.1985. Feeling aggrieved, the predecessor of appellants preferred an appeal which was allowed by the learned appellate Court and decreed his suit vide judgment and decree dated 29.07.1986. The respondents/defendants filed a regular second appeal against that judgment and decree (R.S.A. No.95 of 1986) before this Court which was allowed vide judgment/order dated 12.06.2000 and the case was remanded to the learned trial Court for impleading respondent No.7/defendant No.7 as a party and then to decide the suit afresh in accordance with the law. Issue No.11-A was framed in this regard and evidence of the parties was recorded on this issue, the learned trial Court decreed the suit vide judgment and decree dated 22.05.2004. The respondents/defendants preferred an appeal which was allowed by the learned appellate Court vide judgment and decree dated 28.05.2009. Having dissatisfied, the appellants/legal heirs of the plaintiff filed instant regular second appeal before this Court.

3. Learned counsel appearing on behalf of the appellants contends that the impugned judgment and decree is against law and facts and result of misreading and non-reading of evidence on the record; that the impugned judgment and decree suffers from illegality and irregularity; that the appellant proved his right of pre-emption which was not specifically denied by the respondents; that the appellant is real son of vendor, so he has got superior right of pre-emption to file the suit; that respondents failed to establish that the appellant has waived his right of pre-emption as there is no written undertaking given by the plaintiff with regard to waiver of his right of pre-emption; that the respondents concocted a false story that the plaintiff was present at the time of sanctioning of impugned transaction and he was asked to purchase the suit property but he refused to do so; that the so-called stance pleaded by the respondents did not amount to estoppal; that the learned appellate court wrongly concluded that the plaintiff has waived his right of pre-emption; that the plaintiff impleaded all the vendees in the light of copy of sale deed which was provided to him by the Copying Agency, therefore, it is not his fault regarding non-impleading of defendant No.7; that the plaintiff has pre-empted the whole property and his suit was not in any manner falls within the ambit of partial pre-emption; that the plaintiff has not intentionally omitted the name of defendant No.7, therefore, his suit is not defective on the point of principal of non-joinder of necessary party; that the suit was validly instituted and proceedable under the law; that the suit of the plaintiff was decreed in his favour before the target date of 31.07.1986, therefore, the plaintiff cannot be defeated on this ground and while relying upon case laws titled "Abdul Rashid v. Bashiran and another" (1996 SCMR 808), "Jam Pari v. Muhammad Abdullah" (1992 SCMR 786), "Abaid-ur-Rehman and others v. Muhammad and others" (1999 SCMR 201), "Baqri and 4 others v. Salehon and 3 others" (PLD 1972 Supreme Court 133), "Kidar Nath and others v. Bagh Singh and others" (AIR 1937 Lahore 504), "Muhammad Ajaib v. Farrukh Imtiaz and 3 others" (PLJ 2004 Lahore 491), "Abdul Majid Ahmed Bawany and 7 others v. III Sindh Labour Court, Karachi and 3 others" (PLD 1961 SC 375), "Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners" (PLD 1981 Supreme Court 553) prayed for acceptance of the appeal and decree of the suit.

4. Conversely, learned counsel appearing on behalf of the respondents while defending the impugned judgment and decree of the learned appellate court argued that the learned appellate court has rightly dismissed the suit of the appellants on the ground of estoppel; that the respondents fully proved their version through cogent and concrete evidence; that the plaintiff waived his right of pre-emption; that the plaintiff failed to cross-examine the witnesses of respondents on the point of estoppel, therefore, it is a settled principle of law that the portion of evidence which was not questioned in the cross-examination deemed to be admitted; that the respondents purchased the suit property jointly by paying consideration amount jointly and they did not purchase separate khasra number, therefore, the share of defendant No.7 was not separated and distinguished from the share of the remaining defendants; that the plaintiff failed to implead defendant No.7 within prescribed period of limitation as provided for pre-emption's suit, therefore, suit against defendant No. 7 was not proceedable and liable to be dismissed; that the suit of predecessor of appellants falls within the ambit of partial pre-emption which is not proceedable; that the findings of the learned trial court and learned appellate court with regard to maintainability of the suit is against facts and law and liable to be set-aside; that no decree of pre-emption was passed in favour of the plaintiff and against respondent No.7/defendant No.7 before the target date of 31.07.1986, therefore, the suit of the predecessor of appellants was not maintainable against respondent No.7 and is liable to be dismissed. While relying upon case laws "Muhammad Khan v. Muhammad Khaliq Khan" (PLD 1981 Supreme Court 155), "Abdul Haque and others v. Shaukat Ali and 2 others" (2003 SCMR 74), "Suba and others v. Abdul Aziz and others" (2008 SCMR 332), "Ahmad Khan v. Muhammad Afzal and others" (PLD 1979 Lahore 647), "Khalil Ahmad and others v. Kamal Din and others" (1982 CLC 1614), "Muhammad Hanif and another v. Abdul Aziz and 6 others" (1991 MLD 216), "Abdul Mannan and others v. Sikandar Khan" (1992 CLC 505), "Sedco Forex International v. Muhammad Nawaz and others" (2000 MLD 914), "Muhammad Aslam (deceased) through his Legal Heirs and another v. Abdul Haq and 3 others" (PLJ 2002 Lahore 944), "Ali Bahadur and others v. Nazir Begum and others" (PLD 2005 Lahore 218), "Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others" (1994 MLD 1747), "Arshad Mehmood Siddiqui v. Muhammad Haroon" (1992 MLD 810), "Raja Muhammad Ashraf Khan Kayani v. Azad Government of The State of Jammu and Kashmir through Chief Secretary, Muzaffarabad and 4 others" (1997 PLC (C.S.) 376) "Muhammad Ashraf and 8 others v. Azad Government of The State of Jammu and Kashmir and 13 others" (PLD 1985 SC (AJ&K) 102 prayed for dismissal of the appeal.

5. I have heard the arguments of learned counsel for the parties at full length and perused the record with their able assistance.

6. The learned appellate Court dismissed the suit of the appellant/ plaintiff while rendering its finding upon issue No.7. The learned trial Court framed issue No.7 in the following manner:-

7. Whether the plaintiff is estopped to file the suit? O.P.D. That issue was framed in the light of preliminary objection No.7 of the written statement whereby the defendants took a specific plea that the plaintiff was present at the time of bargain of the suit property and he himself settled and completed the bargain and remained present at the time of execution and attestation of sale deed with regard to the suit property, therefore, waived of his right of pre-emption by his words and conduct. The plaintiff did not file any replication to controvert this assertion of defendants. Admittedly the vendor, who is the father of the appellant with an advanced age of 75/80 years, resided in the same house as admitted by the plaintiff during cross-examination. The vendor Ghazi Muhammad gave him land measuring 80/85 Bighas, meaning thereby relationship between them was also cordial. He also admitted that his father does not do any work, meaning thereby he was dependent on him. The onus of proof with regard to this issue was placed upon the defendants. To prove and discharge the onus the defendants produced DW-1 Hayat Muhammad who deposed that at the time of bargain plaintiff was present there and was asked to purchase the land but he refused to buy and promised that he would not be pre-empted the land. The plaintiff failed to cross-examine the DW-1 on this portion of his statement. DW-2 Faiz Bukhsh deposed that at the time of bargain plaintiff was present there and he was asked if he wants to pre-empt the land, then they will not purchase it but he replied that he would not pre-empt the land. The said witness further deposed, the plaintiff was asked to purchase the land but he refused to buy it. He was also not cross-examined on this portion of his testimony. Muhammad Ramzan guardian of the minor defendants Nos.1 and 2 while corroborating the version of DW-1 and DW-2 recorded his statement as DW-3 and deposed in the same line that at the time of bargain appellant/plaintiff was present there and asked if he wants to pre-empt the land, then they do not purchase it and he purchases it but he refused to buy the land and promised that he will not pre-empt the land. The plaintiff also failed to cross-examine the witness on this portion of his statement. The plaintiff did not utter a single word with regard to the stance of the defendants while recording his affirmative evidence that he was not present there; that he did not get bargain the suit property and had not made any promise that he will not pre-empt the suit property. The plaintiff did not opt to rebut it by recording any rebuttal evidence. Meaning thereby this evidence of defendants remained uncrossed, unchallenged and un-rebutted. In the first round of litigation the learned trial Court while relying upon that piece of evidence decided issue No.7 against the plaintiff and dismissed his suit. After remand, he again recorded his statement as PW-1 on 27.10.2001 and did not utter a single word to negate the version of the defendants. It is a settled principle of law that a portion of the statement of witness which remained uncrossed, unchallenged and was not impeached by questioning in cross-examination, then same would be deemed to have been admitted. Reliance in this regard is placed upon "Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300) and "Farzand Ali and another v. Khuda Bakhsh and others" (PLD 2015 Supreme Court 187). In the case "Mian Shah Nawaz Khan v. Allah Ditta and others" (1982 CLC 1348) this Court while taking notice of the pre-emptor's presence with his father (vendor) at the time of attestation of sale observed that he waived his right of pre-emption. This Court held as under:- "I have checked up the evidence led by the parties under issue No.3 and find that the learned trial Court had rightly held the respondent having waived his right to pre-empt the sale in dispute by his conduct as he remained present at the time of transaction with his father, the vendor in this case. The respondent did not cross-examine, Muhammad Ramzan (D.W.4) and Hasham (D.W.5) who had stated that Allah Ditta respondent/plaintiff remained present at the time of transaction." The Hon'ble Supreme Court of Pakistan in a reported judgment as "Naseer Ahmad v. Arshad Ahmad" (PLJ 1984 Supreme Court 366) while highlighting the motive behind such type of suits for pre-emption whereby the pre-emptor being the son of vendor institute a suit for pre-emption finds mala fide and collusion between the two and observed as under:- "It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases be even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through courts of law." In the present case the plaintiff who was real son of the vendor and resided in the same house instituted the suit for pre-emption after almost one year of the registered sale deed. He failed to rebut the stance of the vendees that he himself got bargained the suit property and remained present during execution of sale deed. The conduct of the pre-emptor clearly suggests the motive behind his suit for pre-emption, to deprive the vendees from their valuable rights for a price which they paid in the year 1978 and to create hurdles in their way which compel them to dish out a huge money as a price for the withdrawal of the suit by him. The collusion between father and son could not be ruled out. Mala fide on the part of pre-emptor is also apparent, because if he genuinely so keen to purchase the suit property, he would gladly pay the price which is being offered to the vendor by another person. For the reasons discussed supra, the findings of learned appellate Court are not open to exception and are liable to be sustained.

7. Another aspect of the case is also very important. There are two sets of defendants, one who were impleaded at the time of institution of the suit which were six in number and called defendants Nos.1 to 6, second, defendant No.7 who was impleaded by moving an application before this Court in earlier round of litigation, during pendency of second appeal (R.S.A. No. 95/1986) and was made a party by impleading him as defendant No.7 in the amended plaint filed on 15.07.2000. This Court while allowing the application of predecessor of appellants and accepting the R.S.A of respondents, remanded the matter to the learned trial Court while observing as under:- "After hearing both the learned counsel at length I find that one thing is certain that said Abdul Hameed was a necessary party to the suit and, as such, the application filed by the respondent is liable to be allowed on this short ground alone. So far as objections qua limitation etc. is concerned it will of course be open to said Abdul Hameed to take whatever objections are available to him when he puts in appearance in the learned trial Court. The appellants shall also be at liberty to raise whatever available objections there are to the amended suit and the respondent shall of course be at liberty to put in whatever defence is available to him to the said pleas. I, therefore, allow C.M No.32/91 and order that Abdul Hameed be impleaded as a party to the suit as a defendant. As a result of the said circumstances this RSA is allowed. Both the judgments and decrees of the learned Courts below are set aside and the suit is remanded back to learned Senior Civil Judge, Multan, where the parties shall appear on 15.7.2000 and amended plaint shall be filed impleading the said Abdul Hameed as a defendant. The learned trial Court shall issue a notice to the said Abdul Hameed and thereafter proceeded to decide the suit in accordance with law." An additional issue No.11-A was framed on the application of the respondents/defendants in the following manner: 11-A Whether the suit is hit by Order I Rule 10(5) of C.P.C. and 22 of Limitation Act on the ground that defendant No.7 was included in the suit at a belated stage? O.P.D. The learned trial Court recorded evidence pro and contra after framing that issue and decided it in negative by observing that:- "It appears that the defendants/ vendees throughout the first round of litigation intentionally concealed the factum of non-joinder of co-vendee with the obvious reason to frustrate/defeat the plaintiff's right of pre-emption on the ground of partial pre-emption. Otherwise there is no apparent reason for non-joinder of the said co-vendee by the plaintiff in the inception. The defendants could not describe any mala fide on part of plaintiff for not impleading the 7th co-vendee while launching this litigation. The plaintiff had instituted this suit on the basis of sale deed Exh.P-1 issued by the Copying Agency containing names of only six vendees. The plaintiff acted bona fide and diligently, mistake of copying Branch not to be allowed to effect decision on merits. Impleading the aforesaid 7th co-vendee in array of defendants does not amount to bring a new party in the suit as he very much figured in the transaction in question, his non-impleadment was a mere bona fide omission. Therefore, provision of Order I, Rule 10(5), C.P.C. read with section 22 of the Limitation Act are not applicable herein." The learned appellant Court did not differ with the findings of the learned trial Court while rendering its judgment. The respondents/defendants Nos.1 to 6 took a specific stance in their written statement by raising preliminary objection No.5 that suit is filed for partial land, therefore liable to be dismissed. From the perusal of Exh.P-1 (copy of sale deed produced by the plaintiff), it appears that although the name of Abdul Hameed was not mentioned in it while incorporating the names of vendees but after writing Abdul Majeed and Muhammad Bukhsh sons of Muhammad Ramzan shown to be three sons and three shares. The exact wording in verbatim is as under:- Underline for emphasis A copy of the same registered sale deed was produced by respondents Nos. 1 to 6 on 18.06.1985 during the course of their documentary evidence, which clearly reflected the name of Abdul Hameed. The mutation No.789 was sanctioned on the basis of that sale deed on 20.11.1978, wherein the name of defendant No.7 also reflected. But this mutation was not produced in the first round of litigation, however produced in evidence after remand. The evidence available on the record negated the stance of the plaintiff.

8. The respondents failed to file any appeal or cross objection with regard to findings of learned appellate Court upon issue No.11-A. However, the learned counsel appearing on behalf of the respondents verbally prayed for arguing the case on issue No.11-A. The question arises that whether the respondents without filing any appeal or cross objection, are entitled to challenge the findings of two learned Courts below on issue No.11-A, which also encompasses the controversy. The august Supreme Court of Pakistan while dealing with such proposition in its Full Bench Judgment reported as "Abdul Haque and others v. Shaukat Ali and 2 others" (2003 SCMR 74) declared that to do the complete justice a party may be allowed to support the judgment and decree under appeal on a ground which has been found against him in the following terms:- "Under Order XLI, Rule 22, C.P.C. a respondent who does not file an appeal or cross-objection against a part of a decree can nevertheless support the decree on any of the grounds decided against him by the Courts below. In an appropriate case, an Appellate Court may allow a party, on consideration of justice, to support judgment and decree under appeal on a ground which has been found against him in that judgment and decree. In taking this view, we find support from the case of Syed Ziaul Hasan alias Thah Peer v. The State (1998 SCMR 1582) in which the cases of Kanwal Nain and Muhammad Afzal Khan (supra) were considered. The Supreme Court of India also took a similar view in the cases of Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and others (AIR 1965 SC 669) and Tepfulo Nakhro Angami v. Shrimati Ravoluei alias Rani M. Shazia (AIR 1972 SC 43)." This view was further endorsed by the Hon'ble Supreme Court of Pakistan in a case reported as "Suba and others v. Abdul Aziz and others" (2008 SCMR 332) and observed as under:- "A party in whose favour a decree was passed, was not necessarily required to file an appeal or cross-objection as it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court's inherent powers. Beneficial provisions of Order XLI of rule 23(33), C.P.C. could also be invoked to do complete justice or to prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with justice, equity and good consciences as laid down in the case of Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597." (emphasise provided) In regular second appeal the same rules are applicable as provided in Order XLI, C.P.C. in the light of Order XLII, Rule 1, C.P.C. This Court under Order XLI, Rule 33 of C.P.C. has empowered to invoke the provisions of law to do complete justice between the parties or prevent the ends of justice from being defeated and adjust the right of the parties in accordance with the natural justice, equity, and good conscious. This Court has manifest power to set right any illegality committed in law by courts below while deciding specific issue in such context by exercising corrective powers as contained in Order XLI, Rule 33, C.P.C. Reference can be placed upon "Abdul Sattar and another v. Muhammad Iqbal" (PLD 2009 Lahore 407), "Ghulam Hussain and another v. Faiz Muhammad and 7 others" (PLD 1991 Supreme Court 218), "Central Government of Pakistan and others v. Suleman Khan and others" (PLD 1992 Supreme Court 590), "North-West Frontier Province Government, Peshawar through Collector, Abbottabad and another v. Abdul Ghafoor Khan through Legal Heirs and 2 others" (PLD 1993 Supreme Court 418) and "Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and others" (1998 SCMR 2306). Therefore, on account of the above discussion, I am of the considered view that without even filing any appeal or cross objection, the respondents are entitled to attack the findings of learned Courts below on issue No.11-A to establish and show this Court that such findings are illegal, unlawful, perverse and against the record. Therefore, while allowing the respondents I have also heard learned counsel for the parties on issue No.11-A.

9. As I have discussed supra there are two sets of defendants. If for the sake of arguments it is presumed that the plaintiff was not at fault by not impleading defendant No.7 as a party in his suit for pre-emption because of the inadvertence mistake of the copying agency by not incorporating the name of the said defendant in the copy of sale deed Exh.P.1, then the question arises what was the fault of defendant No.7 who acquired some rights with the afflux of time and why he should not be treated in accordance with the law. He was not a party in the suit for pre-emption at the time of institution of the suit and was made a party in the amended plaint filed on 15.07.2000. Meaning thereby neither any suit was instituted before 31.07.1986 nor any decree was passed against him. Then how any suit for pre-emption under the Punjab Pre-emption Act, 1913 can competently be entertained and proceed able against him. This Court while rendering its judgment in R.S.A.No.95 of 1986 clearly held that the said Abdul Hameed has every right to take any objections whatever available to him, at the cost of repetition the exact wording is as under:- "So far as objections qua limitation etc. is concerned it will, of course, be open to said Abdul Hameed to take whatever objections are available to him when he puts in appearance in the learned trial Court" The defendant No. 7 was impleaded by moving an application (C.M. No. 32 of 1991) on 15.01.1991. Therefore, the suit was clearly barred by limitation against the said defendant. Omission on the part of the plaintiff to implead one of the vendees as a defendant within the prescribed period of limitation did not protect him by giving him the benefit of bona fide mistake rather appellant's suit to the extent of defendant No.7 is clearly hit by the Order I, Rule 10(5), C.P.C. read with section 22 of the Limitation Act, 1908, whereby it is described that where after the institution of suit a new plaintiff or defendant is substituted or added, the suit shall as regards to him be deemed to have been instituted when he was made a party. Both are reads as under:- Order I Rule 10(5) C.P.C. (1) . (2) . (3) . (4) . (5) Subject to the provisions of the [Limitation Act, 1908 (IX of 1908)], Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons."

22. Effect of substituting or adding new plaintiff or defendant. (1) Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party. (2) Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff." The Hon'ble Supreme Court of Pakistan dealing with this proposition in a case reported as "Hayat and others v. Amir" (PLD 1982 Supreme Court 167) observed as under:- "Now according to this section, when a new person is substituted or added as a party in a suit already pending, then the suit as regard him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him. (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was "So made a party". The word 'so' used here evidently refers to his being made a party by 'substitution' in place of another party or by 'addition' as a new party." Therefore, the suit of the appellant/plaintiff is liable to be dismissed on the ground of limitation as well as barred by law against defendant No.7 and is hereby dismissed to his extent. As the suit of appellant/plaintiff is dismissed to the extent of defendant No.7, therefore, the suit of the plaintiff has become partial pre-emption against the rest of the defendants which is not permissible.

10. The defendants purchased the suit property through a single transaction by a registered sale deed dated 03.10.1978 jointly and consideration amount was also paid on behalf of all the vendees jointly. The pre-emptor must seek pre-emption of the whole of the subject matter of the sale and pay the entire price paid by the vendees. The rule of partial pre-emption is however subject to an exception that in the following three categories of cases partial pre-emption would be permissible provided the whole sale money is paid:- (i). When the pre-emptor himself claims title to a part of the lands sold to a share out of those lands. (ii). When the pre-emptor assail the vendor's title to a part of the lands sold or the extent of his title thereto. (iii). When the pre-emptor sets up the title of third persons to a part or share of the land sold. The instant case does not fall in any one of these categories. The learned Division Bench of this Court in "Ahmad Khan v. Muhammad Afzal and others" (PLD 1979 Lahore 647) held that in the case where one of the vendees is omitted from being impleaded as a defendant in a pre-emption suit to see whether a transaction of sale sought to be pre-empted is divisible or not, two requirements at least have to be met with, first, that there should be specified shares in which the vendees have purchased the land, secondly, that there is a positive proof of the specific and separate contribution made by each of the vendees towards the sale price. It was held further that by an omission to implead one of the vendees as a defendant within the prescribed time limit protection of section 153, C.P.C. cannot be given to such case in teeth of a specific provision of Order I, Rule 10, C.P.C. read with section 22 of the Limitation Act of 1908. The Hon'ble Supreme Court of Pakistan in a case tilted "Muhammad Khan v. Abdul Khaliq Khan" (PLD 1981 Supreme Court 155) held as under:- "It has been held by this Court in Abdullah and 3 others v. Abdul Karim and others (1), that to find out whether such a sale is divisible, the Court is to see two things viz. (i) whether the share of each vendee is specified and (ii) whether the proportion of price contributed or paid by each vendee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale and a suit for pre-empting the share of only one vendee without impleading the other vendee is not maintainable because in the absence of (confining ourselves to the facts of the present case) specification of separate sale price paid by each vendee, the unity of such a sale cannot be broken, and a suit for partial pre-emption with regard only to a part of the land cannot be maintained." The respondents Nos.1 to 6 in their written statement had raised a preliminary objection that the suit of the plaintiff is bad for partial pre-emption. The plaintiff as a person with ordinary prudence thus could have taken the precaution and rechecked the position to find out the background of that preliminary objection but he waited since 1991 when he first time moved an application for impleading the 7th vendee as a party in his suit. In a suit for pre-emption, where several vendees and one vendee was impleaded after time, due to an error in the copy of sale deed supplied to the plaintiff, this Court in similar situation dismissed the suit on the ground of partial pre-emption and barred by time. Reliance is placed upon "Abdul Rehman and another v. Faiz Bakhsh and others" (1989 CLC 2338) and "Jawala Das and others v. Gopal Lal (Pre-emptor) and Des Raj and others" (AIR 1925 Lahore 343).

11. The crux of the above discussion is that the findings of learned Courts below upon issue No.11-A are not correct and not maintainable, therefore, reversed.

12. The case laws referred to by the learned counsel for the appellants are not relevant to the facts and circumstances of this case, therefore not helpful for the appellants.

13. In view of the circumstances discussed supra, the learned appellate Court has rightly accepted the appeal of respondents/ defendants and dismissed the suit of the appellants/ legal heirs of plaintiff while appreciating the evidence available on the file in its true perspective. I have seen no any illegality, material irregularity and mis-reading or non-reading of evidence on the part of learned appellate Court while passing the impugned judgment and decree. The learned counsel for the appellants miserably failed to show any jurisdictional defect in the findings recoded by the learned appellate Court.

14. Epitome of the above discussion is that there is no force in this second appeal, which is being meritless dismissed with no order as to costs. ZH/A-123/L Appeal dismissed.