1984 PLP 920 (MLD)

2. The facts giving rise to the present Civil Revision Petition briefly stated are that the land in dispute measuring 1 Kanal situated at Depalpur, was sold by one Mst. Umri in favour of the petitioners on 29-7-1974 for an ostensible sale price of Rs.13,000.

3. Muhammad Saleem, respondent herein, who is son of the said Mst. Umri, the vendor, filed a suit for possession of the land in dispute by pre-emption. He claimed that being son of the vendor, he possessed superior right of pre-emption as against the vendees who were strangers and that the sale in fact took place for Rs.5,000 but in the sale-deed the sale price was bogusly shown as Rs.13,000 to defeat his right of pre-emption.

4. The suit was resisted by the vendees/petitioners and the learned trial Court framed the necessary issues arising out of the parties pleadings.

5. After considering the evidence adduced before it by the parties, the learned trial Court decreed the suit of the respondent vide its judgment, dated 10-11-1976 on payment of Rs.13,000:

6. The petitioners-vendees preferred an appeal. At the time of hearing of appeal, the learned counsel who put in appearance on their behalf advanced arguments only in regard to issue No.5 which pertained to the alleged improvements. On the question of improvements, the learned trial Court had found that the vendees constructed a temporary Kotha and four walls on the suit land after the institution of the suit and, therefore, they could not claim compensation on that account but were entitled to remove their Malba at the time of delivery of possession.

7. The learned Additional District Judge, after hearing the parties affirmed the trial Court's findings on issue No.

5. Consequently, lie dismissed the appeal vide his judgment and decree, dated 8-9-1980.

8. It is noteworthy that during the pendency of appeal, the petitioners-vendees filed an application before the learned Additional District Judge, seeking amendment in the written statement whereby they wanted to raise the plea that the suit property in fact was an urban immovable property and thus could not be pre-empted. The Petitioners' application for amendment was opposed by the respondent and the learned Additional District Judge vide his judgment, dated 8-9-1980 dismissed the application for amendment of the written statement as wets

9. It has been argued on behalf of the petitioners that the learned Additional District Judge has recorded a decision on issue No. 5 alone whereas according to memorandum of appeal, the petitioners had challenged the findings of the trial Court on other issues as well. This plea is fallacious because it has been clearly recorded by the learned Additional District Judge in his impugned judgment that at the time of shearing of appeal, the learned counsel for the petitioners advanced arguments only with regard to issue No. 5.

10. It has been next urged on behalf of the petitioners that compensation for the construction raised by them on the land in question should have been allowed to them by the learned Courts below as while taking possession they have not been afforded opportunity to remove their malba.

11. With regard to this plea, it may be observed, that according to Patwari's Roznamcha Waqiati's report whereby possession was delivered to the respondent pursuant to the impugned decrees, the petitioners absented themselves at the time of delivery of possession. A Katcha Kotha built by them on the suit land was found locked at the time of delivery of possession. It further transpires from the contents of Annex.R/1 filed by the respondent with his reply to the petitioners' Civil Miscellaneous Petition No. 7202/C/80 whereby they sought restoration of possession of the suit land that the respondent sent a written notice to the petitioners informing them that on account of rains the Kotha built by them on the suit land which was in possession of the respondent got demolished and that the Malba was handed over to Ch. Nazir Ahmad, Member Ward No.4, from whom the same could be collected by the petitioners. This notice was sent to the petitioners by the respondent through registered post. Annex. R/2 and R/3 respectively are the acknowledgment receipt and the postal receipt. Annex. R/4 is a certificate by the Chairman of Town Committee, Depalpur, to the effect that room built by the petitioners on the suit land got demolished on account of heavy rains.

13. In the above circumstances, the petitioners who constructed Kotha etc. on the suit land after the institution of suit by the respondent can collect their material from the gentleman named in the notice Annex. R/1. They are not entitled to receive any compensation.

14. It has also been vehemently argued on behalf of the petitioner that the learned lower appellate Court should have allowed them to amend their written statement as the said amendment was necessary for the correct and final disposal of the case as envisaged under Order VI, rule 17, C.P.C. This plea is also devoid of any merit because the, petitioners had already raised a plea that the suit land was residential property which was purchased for residential purposes by the petitioners. To meet this objection, the respondent produced copy of Khatauni Paimaish EXh.P.l and copy of Khasra Girdawari entries Exh.P.2. According to the contents of EXh.P.l, the suit property is shown as agricultural land. Similarly, as per contents Exh.P. 2, Chari crop was sown -in the suit land during Kharif, 1973. From these two documents, it is abundantly manifest that the suit land was an agricultural land at the time of sale and thus there was no substance in the respondent's plea that it was urban immovable property. The learned Court below was, therefore, justified in disallowing the petitioners' request for amendment of the written statement at that belated stage to raise the plea that the suit property was urban immovable property and thus not pre-emptable.

15. In the light of what has been said above, there is no force in the instant Revision Petition which is, therefore, dismissed leaving the parties to bear their own costs. H.B.T Petition dismissed.