1995SCMR1833 (PLP)

ZIA MAHMOOD MIRZA, J.‑‑‑This appeal by leave of this Court is directed against the judgment of a learned Single Judge of Lahore High Court dated 6‑5‑1991 whereby allowing the appeal of respondents Nos.1 to 4, the decree granted by the lower Appellate Court was set aside and that of the trial Judge restored with the result that the petitioner's suit was dismissed.

2. Facts relevant for the disposal of this appeal, briefly stated, are that Safaida Khan alias Abdullah, the predecessor of the appellants sold land measuring 178 Kanals 3 Marlas together with other rights attached thereto "Bima hisa rasdi shamilat" i.e., proportionate share in Shamilat to respondents Nos.l to 4 through a registered sale‑deed dated 6‑5‑1972. Petitioners claiming to be the heirs of the vendor and thus having superior pre‑emptive right as against the vendees brought a suit for possession through pre‑emption which the vendees, respondents Nos.l to 4 herein contested on the ground, inter alia, that the whole of the land sold was not subjected to pre‑emption and, therefore, the suit was not maintainable in law. Pleadings of the parties gave rise to a number of issues out of which issue No.2 relating to partial pre emption which is the crucial issue for the purpose of the present appeal is reproduced hereunder:‑‑-- "Whether the suit is for partial pre‑emption? If so, with what effect."

3. Learned trial Court after recording the evidence adduced by the parties found on issue No.2 that out of the land sold, Khasra Nos.916/2‑min, 912‑min and 919‑min were not properly described in the plaint as the word `Min' was not mentioned therewith; Khasra No.474 was completely left out and that the plaintiffs have also not sued for the share of Shamilat and other rights appertaining thereto which rendered the suit one for partial pre‑emption. In view of this finding, the suit of the appellant was dismissed by the trial Court vide judgment dated 15‑6‑1980.

4. Appellants preferred an appeal against the dismissal of their suit and during the pendency of the appeal, they made an application for amendment of the plaint so as to correct the description of Khasra Nos.916, 912 and 919 by adding the word `Min' with them and to include the omitted Khasra No.474 as also the share of Shamilat‑Deh. Appellate Court allowed' the amendment regarding the misdescribed Khasra numbers with the observation that non- mention of the word 'Min' with these Khasra numbers ".can only be considered as a misdescription and that too of a very minor nature". The omission to incorporate Khasra No.474 in the plaint was held to be bona fide as this Khasra number was not mentioned in the certified copy of the registered sale‑deed appended with the plaint. Learned Appellate Court also noted (though it was not noticed by the trial Court) that the area of Khasra No.455 given in the plaint was 9 Kanals and 1 Marla as against its actual area of 13 Kanals 11 Marlas but observed that this error too was bona fide as the area of this Khasra number was mentioned in the sale‑deed as 9 Kanals 1 Marla. With respect to the omission of share of Shamilat Deh, the learned appellate Court held that this omission "does not amount to partial pre‑emption because it has not been brought out on record in evidence that there was any share of Shamilat in possession of the vendor at the time of sale. Otherwise it has been stated by counsel for the appellants before me that the appellants are prepared to pay whole of the remaining money for the land pre‑empted by the plaintiffs/appellants. I therefore find that right of the plaintiffs in this case was not effected and on this account plaintiffs' suit was not liable to be dismissed". Finding of the trial Court on issue No.2 was accordingly set aside and the appeal of the appellants was accepted by the learned Additional District Judge.

5. On second appeal filed by respondents Nos.1 to 4, learned Judge in the High Court differed with the reasoning of the lower Appellate Court and observed that "The sale‑deed (Exh.DC) clearly indicates that alongwith land fully described " Bima hisa rasdi shamilat " was also sold. It was for the plaintiffs to show that there was no shamilat land in the village. The question of possession of some shamilat land by the vendor was an irrelevant consideration. If there was shamilat land in the village, its share having been sold vide registered deed " hisa rasdi " by the vendor, it should have been claimed, otherwise the suit would be bad for partial pre‑emption. There is not an iota of evidence on behalf of plaintiffs that there was no such land in the village. Not even bare statement was made in this respect by omitting to sue for a portion of the land sold (Shamilat portion). The finding recorded by the learned Civil Judge was perfectly correct and by allowing the amendment the learned Additional District Judge deprived the appellants of a valuable right which had accrued to them. The application for amendment in this regard was not specifically granted and the observations recorded. These as reproduced above and recorded by the learned Additional District Judge are not sound. These are rather without any legal base. The application for amendment in this regard is, therefore, rejected and the finding recorded by the learned Additional District Judge reversed and that of the learned Civil Judge affirmed". Consequently, the appeal of the respondents was allowed by the High Court, judgment and decree of the learned Additional District Judge reversed and that of the learned trial Court restored. This was vide judgment dated 6‑5‑1991, leave against which was granted by this Court vide order dated 2nd March, 1992, operative part whereof is reproduced hereunder:‑‑-- "In support of this petition it is contended that the petitioners were claiming the entire land sold by Safaida Khan to respondents 1 to 4 and was prepared to pay the entire consideration which had been passed between the vendor and the vendees. In the circumstances, the suit could hardly be described as one of partial pre‑emption merely on account of the fact that certain Khasra numbers were not mentioned in the plaint. The contention raised in support of this petition needs examination. Leave is granted."

6. We have heard the learned counsel for the appellants and the respondents. It is an admitted position that alongwith the Khewat land measuring 178 Kanals and 3 Marlas, the vendor had also sold proportionate share of Shamilat Deh. It is not denied that the appellants did not sue for the share in Shamilat Deh. Learned counsel for the appellants, however, sought to contend that there is nothing on the record to show that there was any Shamilat area in the village or that the vendor had any share therein and, therefore, the failure of the appellants to sue for the proportionate share of Shamilat Deh would not render the suit one for partial pre‑emption. This contention does not merit any serious consideration for the simple reason that it does not appear to have been raised/pressed at the leave stage nor was the leave granted to examine it. We would, however, like to observe that this precisely was the reasoning of the first appellate Court but the learned Judge in the High Court did not agree with it and, in our view, rightly and held that since the sale‑deed Exh.D‑3 clearly showed that together with the land detailed therein, " hisa rasdi shamilat " was also sold, it was for the plaintiffs to show that there was no Shamilat land in the village but they failed to lead even an iota of evidence to that effect. Learned counsel for the appellants when asked was unable to refer to any material on the record to support his contention that there was no Shamilat area in the village or that the vendor had no share therein. Existence of Shamilat land was in fact admitted by the appellants when they moved an application for amendment of the plaint so', as to include therein the vendor's proportionate share of Shamilat Deh. In the circumstances, it was imperative for the appellants to have sued for the share in Shamilat Deh which the vendor had specifically sold alongwith the Khewat land to the vendees through a registered sale‑deed. Needless to observe that their omission to sue for the share in Shamilat Deh which indeed was a separate entity rendered their suit one for partial pre‑emption.

7. It was next contended by the learned counsel for the appellants that the learned Additional District Judge having accepted the application for amendment of the plaint allowed the appellants to include the share of Shamilat land in the plaint with the result that their suit could not be said to suffer from the defect of partial pre‑emption. In the submission of the learned counsel, the order of the learned Additional District Judge allowing the amendment in question was passed in proper exercise of discretion which could not be interfered with by the learned Judge in Chamber. Learned counsel relying upon (i) Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345), (ii) Naeem‑ur‑Rehman and others v. Muhammad Anwar and others (1986 SCMR 1488) and (iii) Muhammad Anwar and 3 others v. Allah Bukhsh and another (1986 SCMR 1575) sought to argue that the powers conferred on the Courts to permit amendments of pleadings should always be liberally exercised and mere delay in applying for amendment or expiry of limitation period is not a valid ground for refusing amendment in the plaint. Proceeding on these premises, the learned counsel contended that the learned Judge in the High Court acted illegally in rejecting the application for amendment and reversing the discretionary order passed by the lower Appellate Court. This contention, too, is beyond the scope of leave‑granting order and is even otherwise mis‑conceived. The learned Judge in the High Court has held and rightly so that the application for amendment for including the share of Shamilat was not specifically granted by the Additional District Judge. It may be noted in this behalf that the learned Additional District Judge took the view that the plaintiffs' omission to sue for share of Shamilat did not amount to partial pre‑emption because no evidence was brought on record to show that there was any share of Shamilat in possession of the vendor at the time of the sale. In the face of this reasoning of Additional District Judge, which though is faulty, there was hardly any need or justification to allow the amendment regarding the share of Shamilat. Be that as it may, in view of the stand taken by the appellants even before us that there was no Shamilat land in the village, we are satisfied that they deliberately omitted to sue for the share of Shamilat. We also agree with the learned Judge of the High Court that the conduct of the appellants was contumacious and negligent. The respondents had taken the plea of partial pre‑emption in their written statement but the appellants took no steps to rectify the omission during the pendency of the suit which remained pending in the trial Court for almost eight years and even after the dismissal of their suit on the ground of partial pre‑emption, they filed the application for amendment before the Appellate Court, after about one year of filing the appeal. For all these reasons, the learned Judge in the High Court was perfectly justified in rejecting the appellants' applications for amendment of the plaint.

8. Coming now to the question to examine which, the leave was granted by this Court namely whether the suit of the plaintiffs,/appellants notwithstanding the fact that it left out the share of Shamilat Deh which too formed the subject‑matter of the sale sought to be pre‑empted could not be said to suffer from the defect of partial pre‑emption because the appellants were prepared to pay the entire sale, price which the vendees had paid to the vendor for the whole of the property sold. Law on the subject is fairly well settled that since the right of pre‑emption is one of substitution, the pre emptor must take over the whole bargain, that is to say 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 and that he cannot be permitted to have a portion of the property even on payment of the whole of the price as it would defeat the basic policy on which the right of pre‑emption is based. Partial pre emption is permissible only if it is as of necessity and not because the pre emptor wants it. For instance, if the right of pre‑emption extends over only a portion of the property sold or if only a portion of the property sold is capable of pre‑emption and the rest is not. Reference may usefully be made to the following observations made by this Court in "Malik Hussain and others v. Lala Ram Chand and others" (PLD 1970 SC 299):‑‑

"The right of pre‑emption is one of substitution even in the case of pre‑emption under statute law, unless the statute itself has made 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, however, is subject to certain limitation which, at any rate, do not include the vendor's 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." The precise issue requiring consideration in this appeal also came up for examination before this Court in the case of "Ghulam Muhammad v. Khushi Muhammad" reported in PLD 1973 SC

444. In that case, the pre emptors had given up their claim in respect of a particular Khasra number which had earlier been sold by the vendor to some other persons and decided to claim pre‑emption regarding the rest of the property on payment of the full price paid by the vendees. Judging the case in the light of the principle laid down in the afore‑noted observations made in the case of Malik Hussain, it was held that the pre‑emptors gave up the claim in respect of one Khasra number out of the property sold in order to avoid further litigation "which cannot be considered as of necessity". Their suit had, therefore, become defective for partial pre‑emption and their plea that they were entitled to pre empt even a part of the property sold if they pay the entire consideration money paid by the vendees for the whole of the property sold was also repelled.

9. In the aforesaid view of the matter, we hold that the appellants having omitted deliberately and without any valid justification to sue for the share in Shamilat Deh, their suit suffered from the defect of partial pre‑emption and they cannot be permitted to pre‑empt the rest of the property sold even on payment of the entire sale consideration because if that is allowed, it would defeat and frustrate the very policy on which the right of pre‑emption is based.

10. Upshot of the above discussion is that we find no merit in this appeal which is accordingly dismissed but with no order as to costs. A.A/B-279/S Appeal dismissed.