2000 PLP 617 (CLC)

This is R.S.A. against the judgment and decree in a pre‑emption suit passed by the learned District Judge, Dera Ghazi Khan, dated 15‑2‑1981. Previously, the suit of the present appellant was decreed on 9‑2‑1980 by the learned Civil Judge, Dera Ghazi Khan. The learned District Judge vide his judgment and decree has modified the judgment of the trial Court.

2. Brief. facts of the case are that the sale in question pertains to 258 Kanals and 8 and Marlas of land comprised in Khata Numbers 384, 355, 356, 341, 357 and 366 situated in the revenue estate of Village Gaddi Janoobi. Ostensible price was fixed at Rs.64,

084. The plaintiff/ pre‑emptor claimed that he was a co‑sharer in Khata 355/356 and out of the sale property could pre‑empt 46 Kanals and 12 Marlas having been sold out of these Khatas. He also claimed that the ostensible sale price was purposely shown excessive to defeat his superior right of pre emption. He prayed that besides the property measuring 46 Kanals and 12 Marlas located in 355/356 of which he was a co‑sharer if he were found entitled to any other right that too should be given to him.

3. The vendees/respondents raised the preliminary objections pertaining to insufficiency of court‑fee, that the suit was for partial pre emption. However, it was maintained by the vendees that the consideration fixed at Rs.64,084 was actually paid.

4. Besides the present appellants, the rival pre‑emptors also filed pre emption suits which were dismissed and they have not come in appeal before this Court. .

5. The learned trial Court had formulated the following issues: (1) Whether any of the suits is insufficiently ‑stamped? OPD (2) Whether any of the suits has been instituted for the benefit of the vendee and is Benami? OPD (3) Whether any of the pre‑emptors is estopped to Suit? OPD (4) Whether the suit land has incorrectly been described in the plaint?OPD (5) Whether all the suits are bad for partial pre‑emption, if so to what effect? OPD (6) Whether the pre‑emptors have a superior pre‑emptive right qua the vendees and whose right is superior inter se the pre‑emptors? OP Pre‑emptor. (7) Whether the sale price Rs.64,084 was fixed in good faith and actually paid? OP Vendee (8) If not then what was the market value of the suit land at the time of sale in suit? OP parties. (9) Relief.

6. The learned trial Court had decided issues 1 to 4 in the negative and 5 against the defendant.

7. The matter was taken up in appeal before the learned District Judge, D.G. Khan by vendees who while deciding issues I and 5 came to the conclusion that the pre‑emptor was only entitled to claim the possession of 46 Kanals, 12 Marlas of land out of the transaction against the payment of Rs.13,300 and accepted the appeal to this extent. While modifying the judgment and decree of the trial Court which had decreed the whole suit. One of the grounds which prevailed with the learned District Judge was the court‑fee which had been paid by the appellant and which was only against land measuring 46 Kanals, 12 Marlas ultimately decreed by the learned District Judge in his favour.

8. Against the judgment and decree so modified by the learned District Judg, dated 15‑2‑1981, this regular second appeal has been filed and the vendee has also filed a revision petition. These are being disposed of together through this judgment.

9. According to the learned, counsel, the first appellate Court while modifying the judgment and decree of the trial Court had placed reliance on an unproved mutation pertaining to another Muaza and which was appended not by the vendees as their document but by the rival pre‑emptor and came to the conclusion that the vendees were owners in the Muaza under reference. Hence, there has been not only misreading of evidence but an unproved document had defeated the case of the plaintiff who was not given the chance of rebuttal. That even otherwise, a mutation document does not carry presumption of truth. That this document related to a period which was subsequent to the period of the sale in question. That besides there is a gap of 16 years between the date of sanctioning of the, said mutation and the sale in question. Regarding the deficiency in the court‑fee it is the case of the appellant that no opportunity was given for making up of the deficiency of the court‑fee which was a legal right.

10. The learned counsel appearing on behalf of the respondents/vendees refers to paras 3 to 5 of the plaint which reads as under:- He contends that the plaintiffs had placed restriction on their rights to the extent of only 46 Kanal and 12 Marlas of land and had spoken of their superior right of pre‑emption qua Khata Nos.355 and 356 only and had paid the ' Zar‑e‑Panjam' to the extent thereof.

11. The re‑production of the relevant paragraph of the plaint and the conduct of the plaintiff with respect to the Zar‑e‑Panjam and the court‑fee reflect that the plaintiff only claimed his right in the Khata Nos.355 and 356 measuring 46 Kanals, 12 Marlas. His prayer that if he was found entitled to any further relief, it may also be given to him, is a prayer of a general nature and cannot be given weight in a suit of pre‑emption. The learned trial Court was in error in decreeing the entire suit in favour of the plaintiff/appellant while becoming oblivious of the limited claim more specifically set up by the plaintiff.

12. It was anyhow argued by the learned counsel for the appellant that if the plaintiffs were owners of two Khatas, the presumption was that they were also co‑sharers in the village, whereas this was not the case of the vendees who were totally outsiders.

13. The vendees in this case have filed the revision petition on the basis of the argument that on account of the judgment and decree of the first appellate Court, it was patent that the suit of the plaintiffs/appellants was for partial partition and hence ought to have been dismissed.

14. This plea was raised before the first appellate Court and was not accepted. While disposing of issue No.5, the learned District Judge had made reference to a mutation of inheritance bearing No.5450, dated 3‑1‑1957 in respect of the lands in Mauza/village under reference. This mutation was mentioned in another mutation No.354 (Exh.P.16) of another village. The inference drawn was that vide mutation No.5450 of 3‑1‑1957 reflected in Exh.P.16, the defendants/vendees were owners in the village and had equal rights with the pre‑emptor in respect of the rest of the Khasra numbers. The learned fist appellate Court justified making such a reference on the ground that an undisputed and authentic document from Revenue Record could be relied upon if found in the case file.

15. While the plaintiffs in this case had been focusing on the two Khatas i.e. 355 and

356. The vendees had not established through evidence their ownership in the village till the discovery made by the learned first appellate Court. The observations, therefore, made in this connection by the learned first appellate Court were assailed here. But the learned counsel for the appellant forgot the fact that an essential duty of a Court is the discovery of the truth and if there is something on record from which truth spell out and there is no dispute about it, the evidence can be used by the Court in arriving at 'a just conclusion.

16. The question, therefore, to be seen is whether this was a suit for partial pre‑emption and hence unsustainable or not. The answer is in the negative. Because the plaintiffs themselves have kept their entitlement to the A extent of Khata Nos.355 and 356 which gives a presumption that they in their hearts of heart were feeling that the vendees had a better claim as compared to then in rest of the Khata numbers. However, this aspect of the ` case remained shrouded except for the discovery made by the first appellate Court.

17. The case of Malik Hussain and others v. Lala Raam Chand and others PLD 1970 5C 299, has been referred and the relevant portion of which is re‑produced below in extenso:‑‑ "It was held in that case that the answer to this question will depend upon whether the pre‑emption has been claimed under statute. Dealing with the question of right of pre‑emption under the statute law, it was observed as under‑‑ . 'The right of pre‑emption is one of substitution even in the case of pre‑emption under statute law, unless the statute itself has trade a departure in this regard to any extent. As for instance, the Punjab Pre‑emption Act, 1913, provides that the Court itself may, in certain circumstances, fix the price to be paid by the pre‑emptor instead of the price entered in the deed of sale and purported to have been paid by the vendee as consideration for the transaction. From the doctrine that the right of pre‑emption is one of substitution, it follows that, unless the statute conferring the right of pre‑emption otherwise provides, the pre‑emptor must take over the whole bargain, that is to say, 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 vendee as consideration. This is, however, is subject to certain limitation which, at any rate, do not include the vendors' defective or want of title. It is not necessary to detail here all those limitations. Suffice it to say by way of example that a pre‑emptor is not bound to seek pre‑emption of the whole of the property sold and pay the full sale price if his right of pre‑emption extends over only a portion of the property sold or if a portion of the property is capable of pre‑emption and the other is not. In case of any such limitation, partial pre‑emption on payment of proportionate price may be permitted as of necessity and not because the pre‑emptor wants it. It is noticed that in the present case the pre‑emptors' right of pre emption is not subject to any kind of limitation: Their right of pre -emption extends over the whole of the lands sold, and no part of .the lands is incapable of pre‑emption'." From the above observation, it is clear that ordinarily the pre emptor must take over the whole bargain and he must seek pre‑emption of the whole of the subject‑matter of the sale and pay the entire price paid by the vendees as consideration. There are, however, certain exceptions which according to the view taken in this decision do not include the vendor of defective or want of title and it, is not open to the pre‑emptor to give up the claim as he likes. In the light of the above observations it is clear that the respondents' case does not fall within the limitation specified in this decision. The partial pre‑emption can only be permitted if it is as of necessity and not because the pre‑emptor wants it".

18. In this case as well the plaintiffs were not sure about their right in the land other than in Khata Nos.355 and 356 and understood their limitation which they did not highlight through evidence and this was also not highlighted by the other side except for the discovery made by the first appellate Court.

19. Under the circumstances of this case, this Court is, therefore, of the view that the judgments and decrees passed by the first appellate Court suffer from no illegality nor this was a suit for partial pre‑emption and hence the C judgments and decrees impugned do not call for interference by this Court. The appeal and revision are dismissed with no order as to costs. Q.M.H./M.A.K./G‑158/L Appeal dismissed