2000 PLP 1008 (YLR)

(5) On non‑proof of issue No.4 what is the market value of the land ? (5‑A) Whether the plaintiffs can claim right of pre‑emption against Khasra number mentioned in preliminary objection No.2? (5‑B) Whether the plaintiffs have waived their right of pre‑emption by not making the entire sale i.e. mutation No. 1248, dated 7‑5‑1964 and mutation No. 1294 dated 25‑4‑1966 subject matter of the suit ? (5‑C) Whether the decree of pre‑emption can be passed against Khasra numbers which are mentioned in paras. 5(a)(b) of the attached written statement dated 12‑4‑1969? (5‑D) Whether the suit cannot proceed in view of the allegation that an appeal is pending with the consolidation authorities regarding Khasra numbers which are mentioned in para. 5(c) of the amended written statement? (5‑E) What is the exact measurement and subject‑matter of the sale in dispute ? (6) Relief. The evidence of the parties was recorded and the learned trial Court decreed the suit on 26‑1‑1971 in terms that the pre‑emptors are entitled to get the land, which was given to the petitioner in lieu of land acquired by it vide mutation No. 1248, dated 7‑5‑1964 in consolidation proceedings on payment of Rs. 5,

000. The learned trial Court found that the area in fact sold to the petitioner was 17 Kanals and 1‑1/2 Marlas. The petitioner filed an appeal, which was heard by learned District Judge, Gujranwala. The appeal was dismissed after holding that the pre‑emptors will get 159/890 share in the land mentioned, as referred to above, in para. 5 of the plaint. The appeal was so dismissed vide judgment and decree dated 30‑4‑1999. Pre‑admission notices were issued to the respondents, who are represented. The certified copies of the records are available on the file of the civil revision. This case is being heard as a notice case.

2. Learned counsel for the petitioner contends that the learned District Judge has erred while calculating‑ the area involved in mutation No. 1248 (Exh.D.2) in para. 5 of the impugned judgment. According to the learned counsel, the said area does not exceed 7 Kanals 14‑1/2 Marlas. The learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees.

3. I have gone through the certified copies of the records with the assistance of the learned counsel for the parties. It is an admitted position on all hands that at some time subsequent to the attestation of the mutation, subject‑matter of the suit, the consolidation proceedings took place. It is also an admitted fact that as a result of the said consolidation the petitioner was given some land and the land acquired vide the said mutation (Exh.D.2) was considered to be part of the previous holdings while consolidating the holdings of the petitioner. In my opinion, there was no occasion at all for the learned Courts below to carry out the exercise of determining as to what land or how much land has been given to the petitioner in lieu of the land acquired by them through the said mutation. Section 16 of the Consolidation of Holdings Ordinance, 1960 is absolutely clear on the subject, which is reproduced here: ‑‑ "

16. A landowner or a tenant shall have the same rights in the holding or land allotted to him in pursuance of a scheme of consolidation as he had to his original holding or tenancy, as the case may be. " In this view of the matter there was no need even to amend the plaint. There is no denial of the fact that the pre‑emptors had a superior right and having paid the price determined by the Court have become entitled to whatever land was acquired by the petitioner vide the mutation Exh.D.2. Rest was .to follow the event and the pre‑emptors were to substitute the petitioner in the land given to them as a result of consolidation process to the said extent. Reference may be made to the case of Muhammad Akmal v. Muhammad Bashir 1981 CLC 279, where Mr. Justice Muhammad Ilyas (as his lordship then was) observed as under:‑‑‑ "I, with respect, share the view that consolidation proceedings do not destroy right of pre‑emption and that if as a result of such proceedings the judgment‑debtor in a pre‑emption decree is allotted any property in lieu of the property to which the decree relates, the former can be claimed by pre‑emptor‑decree‑holder as a matter of right. The exercise of that right by the decree holder, to my mind, is not dependant on his observing any formality, such as securing amendment of the decree, or of the plaint filed in the suit giving rise to the decree, so as to substitute the land mentioned therein by the land obtained by the judgment‑debtor in consequence of consolidation operation." Respectfully following the said view, which in its turn is based on the aforementioned legislative provision, I find that the impugned judgments and decrees are in perfect accord with law. Even otherwise, I find that in coming to the conclusion that the pre‑emptors would be entitled to get 159/890 ‑shares in 89 Kanals of land mentioned in para. 5 of the amended plaint, the learned District Judge has relied on the document Exhs. P.2 and

3. These documents were produced by Muhammad Hussain Patwari P.W.3 and he stated that they are correct in accordance with records that were produced by Ghulam Muhammad Patwari P.W.2. According to these documents, the petitioner obtained possession of the suit land which is described in para. 5 of the amended plaint accepting the same to be a correct calculation and without raising any objection to the same. According to Exh.P.3 the pre‑emptors are entitled to 159/890 share of the suit land. P.W.3 was not cross‑examined despite opportunity given to the petitioner. The only inference is that petitioner accepted the statement of the said P.W. asserting the correctness of Exh.P.2 and report Exh.P.3, to be correct. In this view of the matter, the impugned judgment of the learned District Judge holding that the pre-emptors/respondents would be entitled to 159/890 share in 89 Kanals of land mentioned in para. 5 of, the plaint and document Exh.P.2 is fully supported by the evidence on record. No misreading or non -reading of evidence has been pointed out. The impugned judgments and decrees do not suffer from any defect of jurisdiction or any irregularity. The civil revision is accordingly dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./C‑27/L Revision dismissed.