1984 PLP 672 (CLC)

(a) Punjab Pre‑emption Act (I of 1913)‑ ‑‑ S. 4 and Civil Procedure Code (V of 1908), S. 115‑‑Pre‑emption Pre‑emptor firstly taking no exception to remand order in which it was held that statement made by one of vendees on oath as well as 'statement made by his counsel conceding pre‑emptor's superior right of pre‑emption not binding on other vendees and in that regard order becoming final and secondly that vendees by virtue of a gift became owners within estate and so pre‑emptor did not enjoy a superior right‑Contention that statement made by vendee as joint owner of land in dispute was binding on other vendees and therefore pre emptor entitled to a decree on those statements, held, not acceptable. (b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑ S. 4 and Civil Procedure Code f V of 1908), S. 115‑Oaths Act (X of 1873), S. 8 ‑Pre‑emption ‑Purchase price‑Mode of trial changed to taking a special oath by a joint owner/vendee as decisive one as to price‑Firstly statement can only be confined to ambit agreed upon and not beyond that and secondly if at all can be regarded as binding against vendee making statement and not against other vendees who were not party to unusual mode of proof‑Held, a statement of joint owner if it has an effect of extinguishing rights of co‑owners than that cannot be regarded as binding‑Statement of counsel made after discharge of I oath by joint owner not conducive to interest of his clients (vendees) and not binding as same deprives them of their rights in property in dispute‑Counsel has power to come to any position in conduct of proceedings but at same time it should be interest of his client Counsel making statement as regards comprise having no power of‑attorney from co‑vendees not competent to make such statement‑‑View taken by Courts below even if erroneous, held further, cannot be subjected to a challenge within scope of S. 115, C. P. C. as nothing is involved as to exercise of jurisdiction in any way as enumerated under S.

115. ORDER The petitioner filed a suit in the Civil Court at Bahawalpur against the respondents to pre‑empt a sale dated 8th February, 1970 in consideration of Rs. 17,000 maintaining that the sale was in fact effected on Rs. 7,000 and the price entered in the mutation was fictitious so as to ward off the prospective pre‑emptors. As to the right it was alleged by the petitioner that he was an owner within the estate while the vendees/respondents were not. The suit was resisted by the respondents who denied the superior right as claimed by the petitioner and as to the price they maintained that the actual price was mentioned in the mutation on which there took place the tran saction. The objection as to the jurisdiction of the Court was taken alongwith the objection as to the sufficiency of court‑fee and waiver was also asserted. The learned Civil Judge framed the issues according to the pleadings of the parties as to their variance. During the trial the petitioner suggested that if defendant/ respondent Gul Muhammad took an oath as to the price actually having been paid to the vendor, then any statement made there under, the petitioner would accept. It so happened that Gul Muhammad respondent took the oath and stated that the actual price was Rs. 17,

000. The respondent beyond the ambit of oath also conceded as to the superio rity of the right of pre‑emption of the plaintiff/petitioner. After that, it appears that the learned counsel for the respondents stated that a decree for possession on payment of Rs. 17.000 be passed against the respondents The suit of the petitioner was decreed by the trial Court acting upon the statement so made vide its order dated 10th October, 1970.

2. The respondent being aggrieved of the order of trial Court, filed an appeal which came to be decided by the learned District Judge, Bahawalpur. The learned District Judge came to the conclusion that the statement of either Gul Muhammad respondent or his counsel was not bind ing on Noor Muhammad, Sher Muhammad and Muhammad Ramzan res pondents, so he accepted the appeal and remanded the case after framing issue No. 6‑A pertaining to the price for re‑trial vide his order dated 12th January, 1973. The trial Court pursuant to this remand order re‑tried the suit and ultimately dismissed it vide its order dated 8th March, 1973. The plaintiff/petitioner went in appeal which again came to be decided by the learned District Judge, Bahawalpur who vide his order dated 1st July, 1974 accepted the appeal on the ground that proper opportunity had not been given to the plaintiff, petitioner to adduce additional evidence for which he had made an application to the trial Court. The case was remanded once again. The matter was taken up by the trial Court after remand and after recording the additional evidence the suit was again dismissed on 18th April, 1979 An appeal was taken therefrom by the plaintiff petitioner to the learned District judge At that time the learned District Judge affirm ed the finding of the lower Court and as a result of that he dismissed the appeal vide his order dated 13th May, 1981.

3. In this revision petition having been brought from the order passed in appeal by the learned District Judge, the learned counsel for the peti tioner has contended that Vie statements made by the counsel as well as Gul Muhammad respondent as joint owner of that land was binding on the vendees/respondents. They had conceded as to the superior right as well, therefore, the petitioner was entitled to have a decree on those statements and he actually had it but for the appellate Court. This particular submis sion in the first instance can be rejected on the ground that to the remand order in which it had been held that the statement made by Gul Muhammad as well as his counsel was not binding on the other vendees, no exception had been taken by the petitioners and in that regard the order became find to it cannot be re‑opened. Subsequently as to the fact of the case relating to the superior right the vendees' position had been accepted according to their assertion that they had by virtue of a gift become owners within the estate, so the pre‑emptor‑petitioner dial not enjoy a superior right.

4. The learned counsel despite the first position has maintained that so far as the statement of Gul Muhammad is concerned it is binding on the co‑vendees in view of their joint interest and therefore, if such a person makes any statement the law regards that as binding on all the others. Next he has submitted that the statement of the learned counsel on behalf of all the vendees was binding upon them since it was within his inherent power as an attorney of the respondents to make any such statement. I do not agree with the proposition raised and so answered by the learned counsel for the reason that it was not a statement as having been made in the usual course of the trial. The mode of trial was changed to that of taking of an oath as decisive one as to the price. In that case in the first instance the statement can only be confined to the ambit already agreed upon and not beyond it. Secondly, the statement if at all can be regarded as binding against Gul Muhammad respondent and not others because they were not party to the unusual mode of proof. A statement of a joint owner if it has an effect of extinguishing the rights of co‑owners then that cannot be regarded as binding. It is agreed to this extent that a counsel happens to have power to come to any position in the conduct of proceedings but at the same time it is to be conducive to the interest of his client. The statement made in the present case cannot be taken as conducive to the interest of his clients (co‑vendees) because the same deprives them of their rights in respect with the land in question. Since the statement was made after the oath was discharged, the statement otherwise cannot be regarded as having been made within the usual conduct of a trial. However, the learned District Judge, had taken the view that the statement of Gul Muhammad vendee was not binding upon the co‑vendees because he was not possessing a power‑of- attorney on their behalf. Similarly, Khan Muhammad Shafi Khan. Advocate was not competent to give a statement as regards a compromise since he had not been authorised by Noor Muhammad, Sher Muhammad and Muhammad Ramzan co‑vendees respondents in that behalf, therefore, the view taken if. erroneous cannot be subjected to a challenge within the scope of section 115, C. P. C. as nothing is levelled as to the exercise of jurisdiction in any way as enumerated under section 115, C. P. C. This; petition is therefore, dismissed in limine without any merit. M. Y. H. Petition dismissed.