1989 PLP 3759 (MLD)

(3) Whether the plaintiff/ pre‑emptor has waived his right of pre‑emption by his own conduct? OPD (4) Whether the rival pre‑emptor has also waived his right of pre‑emption by his own conduct? OPD (5) Whether the sum of Rs.10,000 was fixed in good faith or actually paid as the price of the suit land? OPD (6) On non‑proof of issue No.5 what was the market value of the suit land at the time of its sale? OPD. (7) Whether the vendee/defendant No.1 has affected any improvements over the suit land, if so up to what extent? OPD (8) Whether the suit of the rival pre‑emptor is collusive, if so what is its effect? (9) Relief. The parties produced their oral as well as documentary evidence. After perusing the same the trial Court decided issues Nos.l and 2 in favour of the petitioner and passed the first decree of pre‑emption in favour of the petitioner and the second in favour of Kala, the rival pre‑emptor. Issues Nos.3 and 4 pertaining to the waiver of right by the pre‑emptors were decided in the negative. On issue No.5 the Court held that the sale price was Rs.10,000 which was also admitted by both the parties. Issue No.7 regarding improvement was decided in the negative. 4 Kala, the rival pre‑emptor, filed an appeal in the Court of District Judge, Sahiwal against the judgment and decree dated 13‑2‑1984 passed by the trial Court. The appeal was entrusted to the Addl. District Judge, Sahiwal, who reversed the findings of the trial Court on issues Nos.l and 2, dismissed the petitioner's suit but maintained the decree in favour of Kala vide judgment and decree dated 12‑7‑1986. Hence this petition.

5. Sardar Altaf Hussain, Advocate learned counsel for the petitioner untended that Abdullah deceased the vendee had admitted the petitioner to be Yakjaddi of the vendor. Ahmad D.W. 1 had also admitted petitioner's relationship with the vendor. Hence the petitioner had a superior right of pre?emption and entitled to the first decree in his favour as held by the trial Court. He further contended that even if the petitioner was not a Yakladdi he was still related to the vendor and entitled to inherit in case of death of the vendor. Hence his right of pre‑emption was superior even from that angle. He placed reliance on Jalal Din v. Saeed Ahmad, etc. (PLD 1979 SC.879) and Malik Pasandu v. Zuhra (AIR 1934 Peshawar 72). On the other hand Ch.Noor Ilahi, Advocate, learned counsel for respondent No.1 contended that the petitioner being the sister's son of the. vendor was technically not a Yakjaddi. According to the learned counsel the relationship of the Yakjaddi has to be traced to a common ancestor without intervention of a female. He further contended that petitioner /plaintiff could not be allowed to set up a case different From the one stated in the plaint. He placed reliance on Ch. Allah Ditta v. Abdul Aziz vendor. Thus the petitioner's right of pre‑emption was superior to that of Kala, the rival pre‑emptor.

6. Coming to the other contentions of the respondent that a party cannot be permitted to prove a case different from the one pleaded by him, I Find that in the plaint essentially relationship with the vendor was asserted and during the trial the exact relationship of being the sister's son of the vendor was stated. The relationship was erroneously described as Yakjaddi of the vendor in the plaint ,end as paternal nephew in the judgment of the trial Court. However, it makes no difference because the petitioner had not set up an altogether new ground at the trial. Hence the judgments relied upon by the learned counsel for the respondent are of no help to him. Moreover the respondent was all along aware of the petitioner's claim of being related to the vendor and no prejudice was caused to him because of the description of the relationship of Yakjaddi. In Allah Ditta's case relied upon by the learned counsel for the respondent it was held that a party could not be allowed to prove the case different from the one pleaded by it but the Court also noted that this rule had to be applied with reference to the prejudice caused to a party. The Court was pleased to observe as under:‑‑ "Even if there is some variation in the written statement and the respondents' evidence, the learned counsel for the appellant failed to show that any prejudice was caused to him or he was taken by surprise by this evidence. Thus, the argument that the evidence is at variance with the written statement, has no merit." The view of the Court was based on the judgment of the Supreme Court in Budho and others v. Ghulam Shah (PLD 1963 SC 553). A passage from the said judgment relied upon by the learned Judge may be reproduced below with advantage:‑ "Questions relating to variation of a case are to be decided on grounds of notice and prejudice. If the other party has notice of the variation and is not in any way prejudiced by it the variation is permissible. Of course this does not mean that one cause of action can be substituted by another, but in respect of the cause of action on which a suit is based the Court is not debarred from permitting variation if there be no prejudice to the opposite party." As mentioned above Kala, the rival pre‑emptor was all along aware of the petitioner's claim of being related to the vendor. Hence he was not prejudiced and the error in the description of the relationship was not of much consequence in the circumstances of the present case.

7. The learned counsel for the respondent attempted to attack the maintainability of the revision petition on the ground that all the documents were not annexed to the revision petition. He has drawn my attention to the fact that the plaint and the written statement filed by Kala were not attached ~with the petition. This objection, again is of no consequence because the documents attached to the petition are sufficient for its disposal on merits. The petitioner's counsel has also confined his submissions to the material available on the file of the revision petition. The upshot of the above discussion is that this revision petition is allowed, the judgment and decree passed by the learned Addl. District Judge is set aside and that of the trial Court, dated 13‑2‑1984 is restored. If the petitioner has not already deposited the pre‑emption money he shall now deposit the same within a period of three months. There shall be no order as to costs. H.B.T./M‑1533/L Revision allowed.