1998 PLP 343 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioners who were the defendants in the pre-emption suit filed by the respondent herein took an objection that the suit suffered from the defect of partial pre-emption. Precise objection, taken by the petitioners in the written statement was that the land purchased by them included Khasra No.1990-91/387 which was not mentioned in the plaint. The suit was, therefore, liable to be dismissed owing to the defect of the partial pre-emption. It appears that while in the sale-mutation Exh.P.1, Khasra No.1990-91/387 was shown to have been sold, the plaintiff sued for Khasra No.1990-91/337 which gave rise to the afore-noted objection by the petitioners/vendees. The plaintiff, it appears, sought to prove during the trial that Khasra No.1990-91/387 mentioned in the mutation of sale did not exist and the, vendor was actually the owner of Khasra No.1990-91/337 as entered in the Jamabandi Exh.P.2.

2. Learned trial Court on perusal of the sale-mutation Exh.P.I observed that the plaintiff had correctly given Khata and Khatooni numbers in the plaint. "However Khasra No.1990-91/337 were described in the orders of the revenue officer as 1990-91/387. Apart from that Khasra No.291 in the plaint was shown as 391 in the orders of the revenue officer. According to the entries of column No. 10 of the mutation, Khasra No.291 was specifically mentioned and it appears that Khasra No.391 had been inadvertently mentioned in the orders of the revenue officer and has been incorrectly copied in the attested copy. Apart from that Exh.P.2 is copy of Jamabandi for the year 1962-63 and Khasra numbers, Khatooni numbers and Khata numbers of the suit land as mentioned in the plaint were recorded in the said Jamabandi. The entries of the Jamabandi carry with it a presumption of correctness which has not been rebutted through the production of any cogent evidence by the defendants". It was further found by the trial Court that Khasra numbers mentioned in the plaint were also recorded in RL-11 copy Exh.D-1. It was particularly noted that Khasra No.1990-91/337 was specifically mentioned in RL-II. On these findings, the learned trial Court repelled the objection of the defendants and decreed the suit vide judgment dated 18-6-1978.

3. On appeal filed by the petitioners/defendants, learned Additional District Judge took the view that the right of pre-emption being a right of substitution, the plaintiff could only claim the property as described in the sale document Exh.P.1 and as the plaintiff omitted to pre-empt Khasra No.1990-91/387 mentioned in the mutation of sale. "His suit is hit by the principle of partial pre-emption". It was observed by the learned Judge that the sale was made through mutation Exh.P.1 and not on the basis of Jamabandi Exh.P.2 and "Mere fact that the Jamabandi shows that vendor Jan Muhammad owned Khasra No.1990-91/337 will not make the vendee as its owner nor the pre-emptor could pre-empt the same because the said Khasra was never sold". 'Appeal of the petitioners was accordingly accepted and the plaintiff's suit dismissed. (C.M. No.2569-C of 1986) in the High Court for bringing on record the corrected mutation as well as the order of the Collector dated 15-4-1986 passed on the appeal of the petitioners by which the correction of Khasra number was upheld. These documents were allowed to be placed on record and on perusal thereof learned Judge in the High Court held that the misdescription of Khasra number having been corrected, the plea of partial pre-emption was not available in this case. The learned Judge proceeded to observe that the doctrine of partial pre-emption applies not to inadvertent omissions and clerical errors but to conscious surrender of part of the property by the plaintiff/pre-emptor. On this view of the matter, the learned Judge allowed the revision petition, reversed the findings of the lower Appellate Court and restored the decree of the trial Court.

5. We have heard the learned counsel for the petitioner. He has not been able to point out any infirmity in the findings recorded and the view taken by the learned Judge in the High Court. In our view, the learned Judge is right in holding that it was a case of clerical error and bona fide omission which crept in on account of the entries in the Jamabandi. The error was later corrected by the Revenue Authorities and it was placed beyond doubt that Khasra No.1990-91/387 was not in existence. It was erroneously mentioned in the sale mutation. The vendor was in fact owner of Khasra No.1990-91/337 and it was this Khasra, which he had sold. In the circumstances, there was no question of any partial pre-emption and the view taken by the learned Judge in the High Court is unexceptionable. This petition has no merit and the same is accordingly dismissed. A.A./U-1/S Petition dismissed.