P L D 1963 Azad J & K 44 (PLP)

This is the plaintiff's second appeal which arises out of his pre‑emption suit. The suit land comprising Survey No. 40 measuring 1 kanal 15 marlas situate in village Sewar Matwali was the property of Akbar Din son of Shera‑one share, Faqir and Wali Muhammad sons of Kala in equal shares‑2 shares, which they sold to Jumma the father of the respondent by a registered sale‑deed dated 19‑7‑1957 for an ostensible considera tion of Rs.

300. The plaintiff brought a suit to pre‑empt the sale alleging that the land was situate in village Sewar Kaloo and that the plaintiff was an owner in that `mahal' whereas the vendee was not, therefore he had a preferential right to the property sold. It may be mentioned here that Jumma the original vendee died in November 1957. The suit was instituted against the legal representatives of the deceased vendee on 10‑7‑1958. The defendants other than Muhammad Yusaf son of Jumma the deceased vendee filed a written statement on 17‑11‑1959, in which an objection was taken that one of the legal representatives of the deceased vendee Muhammad Yusaf his son had been left out and that the suit could not proceed without him since he was a necessary party. It was on 15‑4‑60 that the plaintiff applied for amendment of the plaint by impleading Muhammad Yusaf as a defendant. The Sub‑Judge Bagh framed the following issues :‑ (1) Has the plaintiff' got prior right of purchase with regard to the suit land as compared to the defendants‑vendees? (O. P. P.) (2) Was Rs. 300 the price of the suit land fixed in a good faith and actually paid to the vendee? (O. P. D.) (3) If case issue No. 2 is not proved what is the market value of the suit land ? (O. P. P.) (4) Is the suit time‑barred as against Muhammad Yusaf defendant ? (O. P. D.) (5) Has the plaintiff not entered cause of action in the plaint and his suit is consequently not maintainable ? (O. P. D.) (6) Is the suit not maintainable on the ground of part‑pre emption since Muhammad Yusaf had been left out? (O. P. D.) and (7) Relief. The Sub‑Judge by his judgment dated 30‑8‑61 found all the issues against the plaintiff and dismissed the suit. The plaintiff then went up in appeal before the District Judge Poonch, who by his judgment and decree dated 17‑8‑62 disagreed with the trial Court on issue No. 1 and held that the suit land was situate in Sewar Kaloo where the plaintiff was an owner in the `mahal' while the defendants were not, and consequently the plaintiff had a prior right of purchase. The learned District Judge, however, agreed with the trial Court on issues Nos. 4 and

6. He also held that Muhammad Yusaf was impleaded as a defendant at a time when limitation for institution of the pre‑emption suit had long expired and consequently the suit was time‑barred as against him. On issue No. 6 the learned District Judge held that since Muhammad Yusaf one of the legal representatives of Jumma deceased vendee had been left out, the principle of part‑pre‑emption would apply and the suit would be dismissed as against the other legal representatives also against whom the suit had originally been instituted. The plaintiff then filed the second appeal in the High Court and the defendants filed cross -objections against the finding of the learned District Judge on issue No.

1. Their contention was that the land was situate in Sewar Matwali where they had equal rights with the plaintiff, therefore, he was not entitled to the right of prior purchase. The learned District Judge during the course of the hearing of the appeal had taken additional evidence and held that the suit land was situate in village Sewar Kaloo. While hearing arguments on 7‑12‑62 I found that there was a copy of the jamabandi on the file of the trial Court in which the suit land had been shown to be situate in village Sewar Matwali, therefore in order to clear the confusion created in the lower appel late Court I summoned the Tehsildar Bagh along with the relevant revenue record and I have examined him as C. W. Ch. Muhammad Rafiq Bhalli Tehsildar Bagh has stated that Sewar Mutwali Khan and Sewar Kallo are two diffe rent `mahals' for which separate jambandies have been prepared and are being repeated ever-since the Settlement operations. He has stated that the suit land Survey No. 40 measuring 1 kanal 15 marlas was entered as `haq assami of the vendors' in the jamabandi for the Sambat year 2002. He had also brought the jamabandi for Sewar Kaloo which is for the Sambat year 2003. In this jamabandi land Survey No. 40 measuring 11 kanals 6 marlas is `Charand Ghair Mumkin' and is entered as `khalsa land' under the occupation of the `assarnian'. It is quite clear from the entry of the jamabandi of Sewar Kaloo Khan that land Survey No. 40 of this village was not the suit land but is quite a different land. The suit land was the `haq assami' of Akbar Din, Wali Muhammad and Faqir Muhammad whereas the land Survey No. 40 situate in Sewar Kaloo is `khalsa' land. In column No. 3 entitled of the jamabandi of village Sewar Matwali Khan for the year 2002‑B are entered words `Sewar Kaloo'. These words have misled the District Judge and created confusion. The C. W. has explained that the entry in column No. 3 means that Akbar Din and others the proprietors entered in column No. 4 shall pay land revenue to the Lambardar of Sewar Kaloo. The Lambardar of Sewar Kaloo also possessed `haqqiyat' in Sewar Matwali and by virtue of that `haqqiyat' which he possessed in Sewar Matwali he possessed right of receiving the land revenue for that `mahal'. The C. W. has also made it clear that if Lambardar resides in one `mahal' and possesses the right of collecting land revenue in an other `mahal', it does not make the two mahals one but the two mahals remain separate. It is crystal clear now that the suit land is situate in Mahal Sewar Matwali and not in mahal Sewar Kaloo. It is also clear that the plaintiff and the vendee defendants are both owners in Mahal Sewar Matwali where the suit land is Rtuate. A pre‑emptor in order to succeed has to show that he possessed a preferential right to acquire property.` The plaintiff claimed the right of prior purchase on the ground of his being the owner in the mahal with the vendors and he can succeed only on this ground if the vendee was not owner in that mahal. As it has been proved that the vendees are also owners in the same mahal, therefore, their rights are equal with the plaintiffs. Since the plaintiff does not possess a preferential right he does not possess a prior right of purchase of the suit land. Disagreeing with the learned District Judge, I decide issue No. 1 against the plaintiff. Now I take up issues Nos. 4 and

6. The sale took place on 19‑7‑

57. Limitation for the pre‑emption suit which is one year had expired on 19‑7‑58 but Muhammad Yusaf was impleaded as a defendant on 15‑4‑

60. Section 22 of the Limitation Act provides that where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall as regards him be deemed to have been instituted when he was made a party. So far as Muhammad Yusaf the son of the deceased vendee and one of his legal representatives is concerned the suit shall be. said to have been instituted against him on 15‑4‑60 when he was made a party to the suit as a defendant. It was about 2 years after the expiry of the limitation for the institution of the pre‑emption suit that the suit was instituted as against him, therefore the suit was clearly time‑barred so far as Muhammad Yusaf was concerned. The learned counsel for the appellant agrees with this proposition of law but his contention is that when the plaint was amended in order to add Muhammad Yusaf as defendant, the defendants had accepted costs and had thereby waived their right to object to the amendment of the plaint and were estopped from challenging this amendment. He has cited P L D 1960 Azad J & K 70 in which the learned Chief Justice has held that acceptance of costs estops the parties from challenging the orders allowing the amendment. With this broad proposition of law there can be no quarrel. The defendants, no doubt, had accepted costs of adjournment and they are estopped from challenging the orders allowing the amendment of the plaint but it could not be said that they are estopped from pleading limitation. After the amendment of the plaint the defendants filed their written statement in which they raised the plea that the suit was time‑barred as against Muhammad Yusaf and since the plaintiff had partly pre‑empted the sale the principle of part pre‑emption was a bar to the maintainability I of the entire suit. I hold that the defendants are not estopped from pleading limitation as against Muhammad Yusaf who was added as a defendant by amendment of the plaint and that they are also not estopped from pleading the bar of part pre emption. Now we have to see if the plaintiff's suit falls within the mischief of part‑pre‑emption. Partial pre‑emption is not at all allowed. The rule is so very stringent that its non‑observance isle always fatal for the suit. So much so that a pre‑emptor is not entitled to a decree even if he is prepared to pay the whole price given in the sale‑deed for a portion of the property sold. At the time of institution of the suit the original vendee had died and the suit was instituted against his legal representatives except one i.e. Muhammad Yusaf his son. All the legal representatives owned definite shares and when Muhammad Yusaf was left out it meant that the right of pre‑emption had been given up so far as the share of Muhammad Yusaf in the suit land was concerned. This is clear part‑pre‑emption. The learned counsel for the plaintiff has referred to a commentary on the Punjab Pre emption Act by Nazir Ahmed Advocate of West Pakistan High Court 1958 Edition in which in the commentary under section 4 certain exceptions to partial pre‑emption have been enumerated. At page 33, it is written that rule of partial pre‑emption does not apply :‑ (1) Where the transaction is divisible though effected in a single deed, it was held in A I R 1935 Lah. 635 that where there is a specification of shares of each individual vendee but no specification of the price or where there is a specifica tion of each vendee's interest qua purchase money but not qua his share the transaction will be one and indivisible. But where sale‑deed contains not only specification of the shares sold to each vendee but also of the price paid by the each vendee, the sale is divisible one. (2) Where in a single deed there are distinct transactions sold by different vendors to one vendee or by one vendor to different vendees or two different properties by one vendor to one vendee the pre‑emptor can choose to sue for any transaction without suing for the rest. (3) Where the vendee has himself broken up the property sold by parting with a portion of it. (4) Where a joint exercise of right of pre‑emption extending over the entire property. (5) Where a right of pre‑emption extends only to a portion of property sold, but of course the pre‑emptor cannot omit to claim any property to which his right extends, and in such a case‑ market value of portion pre, emptible will have to be paid by the pre‑emptor and not a proportionate share of the whole transaction. On facts the plaintiff's case does not fall within any of the explanations to the rule of part pre‑emption enumerated in the commentary referred to by the learned counsel for the appellants. In 86 P R 1919, a suit for pre‑emption in respect of a sale was filed against the two joint vendees, but it appeared that one of them had died previously to the suit. An application to bring his legal representatives on the record was not made till after the period fixed for the institution of the suit had expired. It was held that the suit being barred against the representatives of the deceased vendee was also barred against the surviving vendees. In A I R 1925 Lah. 343, there were 4 vendees viz. T, B, D and J but the plaintiff‑pre‑emptor had first shown in his plaint T, D and J, but did not show B (who was the father of T) but on objection being taken he joined B long after the period of limitation. It was held that the suit must be dismissed as a whole. Since Muhammad Yusaf one of the legal representatives had been joined as a defendant long after the expiry of the period of limitation prescribed for the institution of a pre emption suit, the suit shall be dismissed as against the other legal representatives also. I agree with .the findings of the lower appellate Court on issues Nos. 4 and

6. The result is that issue No. 1 also having been decided against the plaintiff, his appeal fails and is dismissed with costs. The plaintiff's suit shall stand dismissed with costs. K. B. A./A. H. Appeal dismissed.