P L D 1990 Lahore 186 (PLP)

This appeal arises out of a suit for possession through pre‑emption filed by the appellant on 20‑2‑1980 in the Court of Senior Civil Judge, Layyah. The right of pre‑emption was claimed on the ground of being an owner in the estate. The suit was resisted by the respondents, who filed their written statement in the Court. On the pleadings of the parties, the trial Court framed the following issues:‑‑ , 1) Whether the plaintiff has superior right of pre‑emption qua the vendees/defendants? OPP 2) Whether the ostensible sale price of Rs.2,34,000 was fixed in good faith or actually paid? OPD 3) If not, what was the market value? OP Parties 4) Whether the suit is for partial pre‑emption? OPD. 5) Whether the suit is time‑barred? OPD. 6) Whether the description of suit land is incorrect? If so' its effect? OPD. 7) Whether the suit is wrongly valued for jurisdiction and court‑fee? If so, its effect and further the court‑fee is not paid within the period of limitation? If so, its effect? OPD. 8) Whether the defendant validly improved the status of suit land? If so how much and when? OPD. 9) Whether the defendants are entitled to get expenses for the registration of the sale, etc.? OPD. 10) Whether the plaintiff has no cause of action? OPD. 11) Whether the zar‑e‑panjum is not paid within time? OPD. (12) Relief. After recording the evidence of the parties, the trial Court came to the conclusion that the appellant was an owner in Mauza Sumra Tehsil Jandi and had a preferential right of pre‑emption. He decreed the suit vide his judgment and decree dated 27th April ' 1985. The respondents riled an appeal in this Court on 30‑5‑1985 which was sent back to the learned District Judge for disposal on merits. The learned District Judge accepted the appeal vide his judgment and decree dated 16‑12‑1986 and set aside the decree of the trial Court. Hence, this appeal.

2. Arguments, in the appeal were heard on 12‑12‑1988 when I verbally announced the order dismissing the appeal. However, while dictating the order, I noticed that certain important facts were not brought to the notice of the Court. Hence, I recalled the earlier order of dismissal and fixed the appeal for rehearing. Arguments in the appeal were heard on 11‑1‑1989 and again on 30‑5‑1989. The disputed land measuring 143 kanals 16 marlas was sold through a registered sale‑deed dated 22‑7‑1979 for a sum of Rs.1,80,

000. In the plaint, the land was shown to be situated in Mauza Sumra Thhal Jandi, Tehsil Layyah. The right of pre‑emption was claimed on the ground that the appellant was Sharik Khata, Khaiwatdar and Sharik Mauza Chak. In the written statement, the alleged preferential right of the plaintiff/appellant was denied. When the case was first argued on 12‑12‑1988 it was not brought to the notice of the Court that the sale deed (Ex.P‑15) itself showed that the vendor Jeewan son of Noora and Jamal Din etc., respondents, were residents of Chak No.132/TDA and Chak No.154/TDA, respectively. The disputed land was shown to be situated in Mauza Sumra Thhal Jandi in the sale‑deed which was obviously incorrect because by that time, the new estates in the shape of TDA Chaks had come into being. The oral evidence produced by the parties also confirmed that the disputed land was situated in Chak Nos.130, 131, 132, 137 and 275 and that each Chak was a separate revenue estate. The learned counsel for the appellant strenuously urged that the entire land in dispute was situated in Chak No.132/TDA in which the appellant also owned land, but the respondents/vendees did not. Hence, he enjoyed the superior right of pre‑emption. In this connection, he particularly referred to the statement of Ghulam Muhammad, D.W.1, who admitted that the disputed land was situated in Chak No.132/TDA. On the other hand, the learned counsel for the respondents urged that the land in Mauza Sumra Thhal Jandi was acquired by the T.D.A. somewhere in 1956 and thereafter ownership rights were transferred to the vendees in five different Chaks bearing Nos. 130, 131, 132, 137 and

275. Each Chak is a separate estate and the appellant had to prove his ownership in each Chak in which the disputed land was situated. He had merely shown his ownership in Chaks Nos. 131 and 132 and not in the other Chaks. Hence, his suit was rightly ordered to be dismissed by the learned District Judge. He further submitted that the Jamabandi for the year 1943‑44 was not relevant because it did not pertain to the period when the sale was made. He placed reliance on Qutab Din v. Said Ahmad PLD 1967 Lah. 1171 to urge that when Pattis are created, the pre‑emptor must show his preferential right of pre‑emption in every Patti. He also submitted that the decree had to be in accordance with the plaint. In the present case, the plaint did not refer to the various Chaks but merely to Mauza Sumra Thhal Jandi. Hence, no workable decree could be passed in the present case.

3. There is considerable force in the arguments raised by the learned counsel for the respondents. Surprisingly, even after being aware of the fact that the disputed land was situated in five different Chaks, each being a separate estate, the plaintiff/appellant made no effort to amend the plaint and to claim preferential right in each estate separately. The sale of the disputed land, though situated in different estates was made through a single deed. in order to succeed in his claim for pre‑emption, the plaintiff/appellant ought to have proved his preferential right in each estate. At the time of sale, the disputed land was situated in different Chaks/estates but it was wrongly shown to be situated in Mauza Sumra Thhal Jandi, although in the same deed, the residences of the vendor and the vendees were shown in Chak No.132/TDA' and Chak No.154/TDA respectively. The plaintiff/appellant could succeed on the strength of his own case and not on the weakness of the case of the respondents. Allah Wasaya special Attorney of the appellant stated in his statement before the trial Court that the appellant was Sharik Khata and owner in the village and in all the Chaks. He also admitted that the disputed land was situated in Chak No.132/TDA and other Chaks. He further clarified that the land in dispute was situated in Chaks Nos.130, 131, 132 and the other Cbaks, numbers of which were not known to him. He did not know that Revenue Record of each Chak had been prepared separately. To the same strain is the statement of Muhammad Amin, Patwari, D.W.2. He stated that the land owned by Jamal Din etc. respondents, in Mauza Sumra Thhal Jandi was adjusted to the owners in Chak Nos. 130, 131, 132, 137 and 275 against Khata numbers 59, 91, 105, 444 and

445. Each Chak was a separate estate. In view of the statement of the appellant's special attorney supported by the statement of Muhammad Amin, Patwari, D.W.2, no reliance can be placed on the apparently erroneous admission of Ghulam Muhammad, D.W.1, that the disputed land was situated in Cbak No.132/TDA. This witness did not know the Mauza to which the land in dispute pertained ' He did not even know that it was situated in Mauza Sumra Thhal Jandi. Muhammad Amin, Patwari was produced by the respondents. He had made the statement in the light of the entries of the adjustment register. Thus, it is established that the disputed land was situated in rive different Chaks/estates and the plaintiff/appellant had merely shown his ownership in Chaks No.131 and

132. He failed to show that he was owner in Chak Nos.130, 137 and Z75, in which parts of the disputed land were situated. Mauza Sumra Thhal Jandi has since been split up into various estates. Hence, no workable decree can be passed on the basis of the plaint as it stands which was never amended by the plaintiff/appellant at any stage of the litigation. He must suffer for his own default. The plea is, therefore, repelled.

4. During the pendency of the present appeal, the appellant filed a miscellaneous application (C.M.l./C/1989) for production of a copy of the mutation sanctioned on 20‑5‑1989 by way of additional evidence to show that the disputed land was situated in Chak No.132/TDA. As noted above, the plaint was never amended so as to include a clear averment therein that the disputed land was situated in any particular Chak. The appellant cannot be allowed to lead evidence against his own pleadings. Moreover, the appellant's special attorney had admitted in clear terms that the disputed land was situated in Chak Nos. 130. 131, 132 and the other Chaks. Now, he cannot be heard to say that it ' is situated only in Chak No.132/TDA. 1, therefore, rind no justification to allow production of additional evidence at this stage. The C.M. is, therefore, dismissed.

5. The learned District Judge was justified in reversing the judgment an decree of the trial Court and ordering dismissal of the appellant's suit. I find no merit in this appeal, which is dismissed, leaving the parties to bear their 'own costs. M.BA./M‑1937/L APPEAL DISMISSED