P L D 1973 Lahore 637 (PLP)

During the pendency of the suits, however, consolidation proceedings were being taken in the village and a consolidation scheme was finally sanctioned on 23rd March 1965. The main feature of this consolidation was that the area in dispute in the two suits was mixed with the other area owned by the respondents. This was not, however, disclosed by the defendants in the two suits at the time of compromise or of passing of the decree, although if it had been disclosed at that time the Court in all probability would not have passed a decree without considering the effect of this consolidation and in any case without giving the petitioners an opportunity of amending their plaint so as to include the property obtained by respondent No. 1 in each of the two revision petitions. The petitioners deposited the pre‑emption money within time with the result that they were vested with the property in dispute which had been purchased by the two respondents in their two petitions from Akbar Ali, under clause (b) of Order XX, rule 14 (1), C. P. C. In execution of this decree, however, it was reported that some other land had been given to the judgment‑debtors in consolidation in lieu of the land in dispute. The petitioners, therefore, submitted applications in the two suits on 27‑7‑1966 for amendment of the plaint by incorporating the Khasra Numbers obtained by the two judgment‑debtors in consolidation in lieu of the land purchased by them from Akbar Ali and for preparation of ‑a decree In accordance with those particulars. This petition was contested by the judgment‑debtors on a number of grounds giving rise to the following issues t‑ (1) Is the application incompetent? O. P. R. (2) Is the application barred by time 7 O. P. R. (3) Whether the property in dispute is inseparable? O. P. R. (4) Whether the petitioners had knowledge of the consolidation proceedings during the pendency of their suits? If so, its effect. O. P. R. (5) Whether there are sufficient reasons for the amendment sought? O. P. A. (6) Relief. Issues Nos. 1 and 2 were decided against the respondents. The finding on issue No. 3 was that the property purchased from Akbar Ali was mixed with the land owned by the respondents and this land obtained its consolidation in lieu of those properties was inextricably mingled and it was impossible to identify the one from the other. 0n issue No. 4, the Court found that the petitioners had knowledge of the consolidation proceedings. In view of the finding on issues Nos. 3 and 4 it was held that there were no sufficient grounds for amendment. Consequently the petitions for amendment were dismissed by two separate orders dated 1‑5‑

67. These revision petitions are directed against the above‑mentioned two orders. The finding of the learned trial Court on issue No. 4 was that the petitioner Rashida Begum had knowledge about the consolida tion proceedings of the village. There is however, neither any allegation nor any finding that she had knowledge about the actual result of the consolidation of the land purchased by the judgment‑debtors from Akbar Ali. The finding given by the learned trial Court has, therefore, no bearing upon the decision of these cases. The only question is, whether a suit for pre‑emption is liable to fail if the property which is secured in consolidation proceedings in lieu of the property which is the subject‑matter of the suit is jumbled up or mixed up with the other property of the vendee in a manner that it will not be possible to locate the identity of the property purchased by the vendee. If the property which is the subject‑matter of a suit for pre-emption is put into the consolidation pool as a separate unit and one unit is allotted to the vendee in lieu of that property, there will be no difficulty in following the pre‑emptible property and a decree for pre‑emption in regard to the property obtained in lieu of the pre‑emptible property can be passed. This question came up for consideration in Qaim Din v. Said Ahmad (P L D 1967 Lah 1171) and it was held that there is nothing in the Consolidation Act to show that after it is put into operation in any village or estate, it will destroy or will cause such rights to lapse. Reliance was placed upon section 12 of the Punjab Consolidation of Holdings Act, 1936, which was equivalent to section 16 of the West Pakistan Consolidation of Holdings Ordinance, 1960 and which provided that the land‑owner shall have the same right in the holding or land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be, and it was held that the vendee was the owner for the time being but his ownership was a contingent sort of ownership which could be substituted by that of the pre-emptor and a claim of pre‑emption can be laid By the pre‑emptor to the new land. The following head‑note in Gurdev Singh and another v. Partapa (A I R 1948 E Pb. 70) was cited with approval:‑ "Under section 12, Punjab Consolidation of Holdings Act, 1936, the right of a party in the holding or land allotted to him in. pursuance of a scheme of consolidation is the same as he had in the original holding or land. Holders of decree against parties having rights against the original land can also enforce their rights against the allotted land after taking proper proceedings for the purpose." Even the learned counsel for the respondent could not argue that this expositions of law in any way requires any reconsideration. In the present case as well as in the case of Qaim Din v. Said Ahmad the consolidation scheme was sanctioned during the pendency of the suit for pre‑emption. If during the pendency of the suit any property is transferred by the defendant‑vends by sale or exchange there can be no doubt that on account of the principle of lis pendens it will be open to the pre‑emptor decree‑-holder to execute his decree against the subsequent alienee also although he might not have been impleaded as a party to the suit. The alienation does not destroy the right of pre‑emption of the pre‑emptor and is really subject to such right. As held in the case of Qaim Din even the Consolidation of Holdings Ordinance does not destroy the right of pre‑emption and the allotment of property made under that Act will be subject to that right at least to the extent that the property obtained in lieu of pre‑emptible property will be subject to the right of substitution of the pre‑emptor for the vendee who has become vested of ownership rights to that land by virtue of section 16 of the Consolidation Ordinance. The property in the hands of the vendee can in this manner be followed by the pre‑emptor. But under the Consolidation of Holdings Ordinance it is open to the consolidation staff to allot, if so requested, separate plots for the property which is the subject‑matter of the pre‑emption suit. It is also within the authority of the consoli dation staff to mix the pre‑emptible property with other property of the vendee and to make one or several consolidated plots from which it may not be possible to extricate or identify the land given in exchange for the pre‑emptible property. The principle that by such consolidation the right of pre‑emption is not destroyed will apply equally to this second method of consolida tion as the law of consolidation or pre‑emption does not make a distinction between the various methods of consolidating the property. I see no earthly reason why in the absence of any provision of law there should be a different principle for this method. If altogether different principle is laid down the fate of the pre‑emption suit will be not in the hands of the Court but in the hands of the consolidation staff who may either virtually dismiss the suit by following the second method virtually or make proper arrangement for the passing of such a decree. For identifying the pre‑emptible property it is not necessary that the exact equivalents in the Killa Nos. or Khasra Nos. of that property under the consolidation scheme should be discovered. The discovery can be made by resort to the method of reducing the pre‑emptible property to a proportion of joint property and such proportion may be sufficient iden tification of the property in a pre‑emption suit. This proportion can be worked out by taking into consideration the entire area of the vendee which was put in the pool, the ratio of the pre -emptible property to such entire area, the nature of the different categories of land in the pool and the area of the land obtained fin consolidation. I may illustrate my point by an example. Supposing the pre‑emptible area is 10 kanals while the entire area owned by the vendee including these 10 kanals which was in the consolidation pool was 100 kanals. The proportion of the pre‑emptible area will be 1/10 of the area. If the land put in the pool was second class and in lieu of that third class land is obtained and the area given to the vendee under the consoli dation is 150 kanals, the pre‑emptible property will be deemed to be 15 kanals. Reference may be made to (1946) 48 P L R 536 in which case 72 kanals 14 marlas of land consisting of 67 kanals 15 marlas of ancestral property and 4 kanals and 19 marlas non‑ancestral property was put in the consolidation pool and in lieu thereof an area of 77 kanals 10 marlas was allotted to the son. This land was sold by the owner to Piyarey Singh and a suit for usual declaration under custom was filed by the collaterals of the owner. It was contended that the ancestral and the non‑ancestral were so mixed up that it was not possible to find out which portion was ancestral and which was non‑ancestral. A Division Bench of the Lahore High Court repelled this contention and held that under the Punjab Consolidation of Holdings Act, 1936 the land‑owner had the same right in the land allotted to him in pursuance of a scheme of consolidation as he had in his original holding and, therefore, at least 67 kanals 15 marlas of land must be deemed ancestral. The principle of this authority is applicable at least to the extent of holding that where the pre‑emptible property ii mixed up inextricably with the other property of the vendee the pre‑emptible property can be Identified by resort to a method of identification different from the one employed when definite property is allotted in lieu of pre‑emptible property. The method of calculation of the property which was adopted by the Hon'ble Judges in the above case cannot be employed 9n a case of pre -emption because of the difference in principle. The principle regarding the ancestral property is that the question where the property is ancestral should be proved by positive evidence and conjectures cannot take place of positive proof. No such principle is applicable to the identification of the pre‑emptible property. The next important question is, whether in the circumstances of the present case the Court is competent to allow amendment of plaint and the decree. The applications for amendment have been submitted under sections 47, 151 and

153. The amendment in the present case can be allowed under sections 151, 152, C. P. C. The learned counsel for the respondent contended that section 151 can apply to a case where the suit is pending and the decree has not been passed while under section 152 clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any party. But according to the authorities the Court has power to amend the decree without amendment of the pleadings in a case where the error in the decree has occurred on account of error in the pleadings. In Noor v. Muhammad (1970 S C M R 133) the plaintiff had obtained a decree to the effect that he was the sole heir of one Mst. Allah Rakhi in respect of the property left by her. After the decree, he discovered that he had omitted reference to certain Khasra numbers in describing the property in the plaint. He applied for amendment of the decree but his application was dismissed. In revision, however, the High Court allowed the application for amendment of the decree. The Supreme Court dismissed the petition for special leave to appeal and observed that if by inadvertence in the description of the property left by Mst. Allah Rakhi, the plaintiff respondent failed to mention certain properties, it was eminently just and fair that he should have been allowed to apply for correction of the decree. This was a case in which the error in the decree originated from the error in the pleadings but the amendment of the pleading was not considered necessary and only the amendment of the decree was ordered. The authorities contrary to the proposition are not good law in view of the Supreme Court judgment. The Lahore High Court had also taken the same view in Asa Singh v. Jaghgit Singh (A I R 1923 Lah. 147(2)). In this case the plaintiff's suit for possession by pre‑emption of 671 bighas 18 biswas of land was decreed In favour of the pre‑emptor but in the heading of the plaint the details of the property was given according to the field numbers also and certain field numbers were omitted with the result that the total area of the field numbers specified in the heading of the plaint amounted to about 401 bighas only. The decree was ordered to be amended and it was held that the amendment could be justified both under sections 151 and

152. In the present case the suit was filed for the property actually sold to the vendee by Akbar Ali when the consolidation proceed ings culminated during the pendency of the suit. If an application had been made before the passing of the decree, there is no doubt that amendment would have been allowed and a decree would have been passed for possession of the property obtained in lieu of the pre‑emptible property because the decree in a way is a compromise decree passed on the agreed statement on oath of a witness, namely, Allah Ditta. This eminently is a case where a decree should have been allowed to be amended. To me it appears that the respondents have deliberately concealed the order of allotment passed in the consolidation proceedings so as to be able to resist delivery of possession of the property in execution. If they had brought this fact to the notice .of the Court I entertain no doubt that the Court would not have passed a decree for possession of the property which was originally purchased by the respondents from Akbar Ali and would have asked the petitioners to take steps to amend the plaint so that a proper and legal decree could be passed. It' decree or order has been secured by practising fraud on the Court the Court has inherent power to set aside the order passed on such fraud. I, therefore, allow the amendment application and remand the case for determination of the question as to what proportion of the property detailed to paragraph No. 4 of the application for amendment is allotted or will be deemed to have been allotted In lieu of the pre‑emptible property. The decree prepared after the determination of this question will show the field numbers shown in para. 4 of the amendment application and the proportionate share of those field numbers to which the petitioners are entitled. The respondents will pay the costs of these revision petitions as well as the applications for amendment. S. A. H. Revision allowed.