1999 PLP 2878 (MLD)

(2) Whether the plaintiff has waived his right of pre-emption by his conduct? OPD (3) Whether the sale price was fixed in good faith at Rs.12,000 or was actually paid? OPD (3) If issue No.3 is not proved, what is the market value of the suit land ? OPP parties. (5) Whether the land described in para. No.5 of the plaint was allotted in lieu of the land described in para. No.2 of the plaint? OPP (6) Relief.

4. The learned Trial Court gave findings on issue No.1 in favour of the plaintiff, issue No.5 against him, whereas, issues Nos.2 and 3 were decided against the defendant and in view of the findings on issue No.3, no findings were deemed necessary on issue No.4 However on issued No.6 i.e. relief, the decree was passed in favour of the plaintiff to the extent of 46 Kanals and 10 Marlas. For the rest of the suit land unclaimed by the plaintiff measuring 5 Kanals and one Marla, the suit was dismissed.

5. That while considering issue No.5, the learned Civil Judge observed in paras. Nos. 8 and 9 of the judgment as below:-- "However, during the arguments on this issue one other factor was brought out that is, th total land sold in this suit, as shown by Exh.P.8, was 51 Kanals and 11 Marlas last as is clear from the opening sentence of para. 2 of the original plaint as well as that of the two subsequent amended plaints, the plaintiff has claimed only 46 Kanals and 10 Marlas of land. From this the learned counsel for the defendant contended that the suit should be dismissed as whole, but the learned counsel for the plaintiff contends that it is a mere slip of pen. In this respect, an application has also been made but for the correction of share only as mentioned in para. No.1(a) of the plaint. But so far as the correction of total area of suit land, no correction has been sought. It is, therefore, clear that the total area claimed in plaint stands as it is, and it is less than the total area sold. (9) The question now, therefore, before me is whether the suit should be dismissed as bad for partial pre-emption or the part claimed should be allowed on payment of full price. In this respect, it may be stated that the defendant neither objected verbally nor in writing, that the suit was bad for partial pre-emption nor any such arguments had come on this side. It was only when during the arguments on issue No.5, I discovered the mistake that the learned counsel for the defendant raised the above contention for the first time. The suit has remained under trial for the last five years, and no objection as to partial pre-emption having come on the side of defendants. I guided by the case of Allah Rakha Khan v. Kala Ram (67 IWC 872) hold that the arguments as to the dismissal of suit on the ground of partial pre-emption should not be accepted. However, as the plaintiff's right extends to the whole of land and as he has claimed only 46 Kanals and 10 Marlas out of total area of 51 Kanals and 11 Marlas, therefore, I allow him this area of 46 Kanals and 10 Marlas on payment of full sale price of Rs.12,

000. This legal objection thus stands disposed of accordingly. The application of plaintiff, thus, stands disposed of and rejected."

6. That as stated earlier, the suit of the plaintiff was only decreed to the extent of 46 Kanals and 10 Marlas whereas to the extent of five Kanals and one Marla of land, it was dismissed. The respondent filed an appeal against the said judgment and decree of the learned Civil Judge which was accepted by the learned Additional District Judge, Sialkot vide a judgment and decree, dated 17-12-1975 which is impugned in this appeal.

7. Learned counsel for the, appellant has contended that no objection was raised by the defendant either verbal or in writing that suit was bad for partial pre-emption and it was only during the course of argument that Court itself discovered the mistake. The learned trial Judge in paragraph No.9 of his judgment has considered two options whether to dismiss the suit as bad for partial pre-emption or the part claimed should be allowed on payment of full price. Learned trial Judge exercised that latter option and decreed the suit for 46 Kanals and 10 Marlas only. It is argued on behalf of the petitioner that the exercise of jurisdiction by the learned Civil Judge was in accordance with law as laid down in Allah Rakha Khan v. Kala Ram (67 IC 872) as the vendee have raised no objection to the error. It is stated that failure on the part of the petitioner to sue for the entire land was due to clerical mistake.

8. I have perused the judgment of the learned Civil Judge and it is very much clear. that the plaint was amended twice and application for the correction of some share was also sought but at the new point of time even this mistake was corrected, the appellant sought no indulgence of the Court to move an application to correct the so-called error and to include the area of five Kanals and one Marla which has left out. Even such application was not made at the Appellate stage.

9. Learned counsel for the respondent has contended that it was not an error at all, rather it was a deliberate omission on the part of the appellant as is manifest from his subsequent conduct and even if no objection was raised by the respondent initially but it was vehemently argued at the final hearing of the case that the suit is bad and incompetent for partial pre-emption which is liable to be dismissed. He also argued that as the question of partial pre-emption on the basis of admitted position on the record was only a question of law and, thus, could be raised by the respondent at any time before the final conclusion by the learned trial Court.

10. From the findings of the learned trial Court on issue No.6, it is clear beyond any doubt that the Court had dismissed the suit "for the rest of unclaimed five Kanals and one Marla" which goes to show that the appellant has abandoned his claim to the extent of above. Even the appellant failed to file any cross-appeal or cross-objection to the extent of suit which was dismissed by the learned Trial Court. Thus goes meaning that he had accepted the partial pre-emption of 46 Kanals and 10 Marlas and deliberately had waived his right to the extent of remaining land. The learned Additional District Judge has relied upon A PLD 1973 SC 444 which is squarely applicable to the facts and circumstances of the present case because the appellant was not right in giving up the claim in respect of five Kanals and one Marla and accepting the partial pre-emption as decreed by the learned trial Corm. By doing so, the suit of the appellant has become defective and the learned Additional District Judge was well within its jurisdiction to accept the appeal of the respondent.

11. In view of above, I do not find any exception to the judgment and decree of the Court below, and dismiss this appeal by upholding the judgment decree, dated 17-12-1997 passed by the learned Additional District Judge. There is order as to costs. H.B.T./B-49/L Appeal dismissed