1989 PLP 837 (CLC)

The land in dispute measuring 40 Kanals and 3 Marfas belonged to Muhammad Iqbal, Muhammad Hayat, Fateh Muhammad, Muhammad Kaleem and Muhammad Younas which is situate in Village Chak Choopa, Tehsil Chishtian, District Bahawalnagar. They sold it in favoi.r of Shahid Naveed defendant in consideration for a sum of RS.24,OOa. Muhammad Younas son of Muhammad Shafi sought to pre‑empt the sale of the land in dispute on the basis of being an owner in the village on payment of Rs.24,

000. Shahid Naveed, the vendee, contested the suit on the plea that the plaintiff had waived his right of pre. emption by his conduct. He denied the preferential right of pre‑emption of the plaintiff and added that he had made certain improvements in the land in dispute and claimed its value. The learned trial Court formulated the following issues:‑ (1) Whether the plaintiff has waived his right of pre‑emption ? OPD (2) Whether the defendant has effected any improvement over the suit land? If so, to what extent ? OPD (3) Whether the plaintiff has got superior right of pre‑emption qua the defendant ? OPP (4) Relief.

2. Issues Nos.l and 2 were decided against the defendant and a decree was passed by the learned Civil Judge Chishtian on 24‑7‑1985 on the basis of the findings on issue No.3. Shahid Naveed lodged an appeal and, after the acceptance of the appeal the judgment and decree of the learned trial Court were set aside and the case was remanded to the learned trial Court vide judgment dated 10‑7‑1988 pronounced by he learned District Judge, Bahawalnagar. The same judgment has been assailed in this revision petition.

3. Admittedly, the plaintiff‑petitioner is an owner in the Village and has got a right to pre‑empt the sale of the land in dispute. The defendant did not make a specific plea in his written statement that he was a tenant of the land in dispute but had simply denied his right of pre‑emption in para. No.2 of the written statement. The word " ‑1 " has been written above the regular one and the main plea of the respondent was that the plaintiff had waived his right of pre‑emption and he had assured the vendee that he would not bring a suit for possession by pre‑emption of the land in dispute. 11 has nowhere been mentioned in the written statement that he contested the plaintiff's right of pre‑emption on the ground that he was a tenant of the property in dispute. When a specific plea is not taken in defence then the evidence recorded in support of this plea cannot be looked into. It was so held in Siddik Mahomed Shah v. Mt. Sarani and others AIR 1930 Privy Council 57(1) and Liaqat Baig v. Boardl of Intermediate and Secondary Education, Multan 1987 CLC Lah. 2425.

4. Secondly, when the case can be decided on the basis of the record which is sufficient for the learned Appellate Court to decide, B then the remand should not lightly be ordered. This principle was enunciated in Pramatha Nath Chowdhury and 17 others v. Kamir Mondal and others PLD 1965 SC

434. Two copies of Khasra Girdawari have been placed on the file. Exh.P.5 is the copy of Khasra Girdawari produced by the plaintiff whereas EXh.D.l is the copy of Khasra Girdawari filed on behalf of the vendee‑respondent. In Exh. D.1, the vendee has been entered as a tenant of this land which has been classed as Ghair Mumkin Nehar, Ghair Mumkin Sarak and Kallar. This entry was got rectified by the plaintiff and the entry of being a tenant in favour of vendee does not exist in Exh. D.1. Finally, no presumption of truth is attached to a copy of Khasra Girdawari and this presumption is reputable. The very sale‑deed has rebutted this presumption, which states that the vendors were in possession of the land in dispute and the possession was delivered to the vendee on the spot.

5. In the light of the above observations, the learned Appellate Court has committed illegality and material irregularity in the exercise of its discretion. The impugned judgment is quashed. The learned) District Judge, Bahawalnagar, is directed to hear the parties afresh and decide this case on the basis of the material on the record.

6. The parties to appear before the learned First Appellate Court on 20‑2‑1989. The record of the learned trial Court may also be sent to the said Court immediately. As the legal complexities were involved in this revision petition, so I make no order as to costs. . A . /11‑1136‑L Caseremanded.