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No. 2050‑D of 1980, decided on 13th May 1986.

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), 5 .115‑‑Right of pre‑emption based on ownership in estate‑‑Belated attempt to amend plaint for inclusion therein plea of being co‑owner in Khata not permitted by Courts‑‑View of Appellate Court that where pre‑emptor claimed to be owner in estate and in so proving he also proved his co‑ownership in disputed Khata and thus could assert his right on both versions, held, would not be sustainable‑‑Plea of being co‑ownership in Khata was different from plea of being owner in estate‑‑Plaintiff had not claimed at and for that reason his subsequent assertion was never put to trial‑‑Defendant would have no opportunity to rebut such assertion.

Baqa Muhammad v. Muhammad Nawaz P L D 1985 Lah. 476 ref.

‑‑‑S. 15‑‑Qanun‑e‑Shahadat Order (10 of 1984), Art.118‑‑Co‑sharer in Khata, proof of‑‑Fact of plaintiff being co‑sharer, mentioned in deed‑ of exchange, whereas extract of Jamabandi showed vendor to be exclusive owner of such Khata‑‑On basis of deed of exchange alone pre‑emptor, held, could not be deemed to be co‑sharer in Khata in view of contradiction of such fact in Jamabandi.

‑‑‑S. 115‑‑Punjab Pre‑emption Act (I of 1913), S:15 Revisiona jurisdiction, exercise of‑‑Where pre‑emptor failed to take plea of being a co‑sharer in Khata and even otherwise evidence on record did not support such plea, High Court in revisional jurisdiction set aside findings of Appellate Court wherein pre‑emption suit was decreed on such basis.

Allah Wasaya Malik for Petitioner.

Malik Noor Muhammad Awan for Respondent No.1.

Malik Abdus Sattar Chughtai for Respondent No.3.

Date of hearing: 13th May, 1986.

This Civil Revision calls in question the judgment and decree, dated 8‑6‑1980 of the learned District Judge, Mianwali, whereby he, after setting aside the judgment and decree, dated 16‑12‑1979 of the trial Court, decreed the pre‑emption suit filed by respondent No.1.

2. On 11‑10‑1975 one Sadda son of Kaura sold 23 Kanals and 15 Marlas of agricultural land situate in village Dhingana of Tehsil Mianwali in favour of the petitioner. The sale was an oral one and was evidenced by a mutation. It gave rise to three suits for pre‑emption; one .by respondent No.1 and the other two by two women. The three suits were consolidated and tried together. In this civil revision, I am not concerned with the suits filed by the two women; suffice it to say, their suits were dismissed by the trial Court.

3. In his plaint respondent No.1 founded his superior right on two grounds alone. These were:

(a) he was a collateral of the vendee, and

(b) he was an owner in the estate.

When most of the evidence had been recorded, respondent No.1 moved an application for the amendment of his pleadings so as to include an additional ground in support of his superior right. The additional ground was to the effect that he was a co‑sharer in the Khatas of which the land in dispute formed e, part. The application for amendment was rejected by the learned trial Court on the ground that it had been made at a belated stage. Respondent No.1 challenged the order of the trial Court in revision before the learned District Judge. The learned District Judge dismissed the revision petition on merits. After the conclusion of the evidence the learned trial Court found that respondent No.1 was not collateral of the vendee and that the petitioner too was an owner in the estate. Since both grounds upon which respondent No.1 had based his superior claim failed, the learned trial Court dismissed his suit too.

4. Respondent No.1 preferred an appeal before the learned District Judge. During the course of hearing of the appeal counsel for respondent No.1 conceded that if he was not allowed to amend his pleadings so as to raise the plea of being a co‑sharer in the Khatas in question, he could not find any fault with the decision of the trial Court. It is doubtful if the learned District Judge was competent to re‑examine the order of the trial Court with regard to the prayer for amendment of the plaint when a Court of equal jurisdiction had already upheld that order in exercise of its revisional jurisdiction. See Baqa Muhammad v. Muhammad Nawaz P L D 1985 Lah. 476. However, that may be, the learned District Judge thought that it was not necessary for respondent No.1 to seek amendment of his plaint for when a pre‑emptor claimed to be an owner in the estate and in so proving he also proved that he was an owner in the Khata of the suit land then he could assert his right on both the versions. He then went on to hold that on the evidence led before the trial Court, it was established that respondent No.1 was co‑sharer in the Khatas in question. Accordingly, he decreed the suit of respondent No.1.

5. It is difficult to subscribe to the view expressed by the learne District Judge. The plea of a pre‑emptor that he is a co‑owner in th Khata which included, the land in dispute is entirely different from the plea that he is an owner in the estate. To meet the last‑mentioned plc all that the vendee has to show is that he too is an owner in the estate whereas to rebut the first‑mentioned plea, he may have to lea evidence of a more specific nature. As already mentioned, in the plain respondent No.1 had not claimed that he was a co‑‑sharer in the Khata and for that reason his subsequent assertion in this regard was never put to trial. The petitioner had thus no opportunity to rebut this assertion. The learned District Judge, was, therefore, not justified in decreeing his suit on the basis of this belated plea.

6. Apart from that, the finding of the leaned‑ District Judge that respondent No.1 was a co‑sharer in the Khatas is based on no evidence. The land in dispute was included in Khatas Nos. 121 and 122. In support of his assertion that he was a co‑sharer in these Knatas, respondent No.1 relied entirely upon a deed of exchange (Exh. D.7). According to this deed one Amir Muhammad claiming to be co‑owner in the said Khatas had transferred his land therein to respondent No.1. Now, there is no evidence apart from the bald assertion of Amir.Muhammad in the said deed that he owned any land in these Khatas. On the other hand, it appears from an extract of the Jamabandi (Exh. D.6) that both these Khatas were exclusively owned by Sadri,. Thus on the basis of the deed (Exh. D.7) alone respondent No.1 could not be said to have become a co‑sharer in the Khatas in question.

7. For the reasons stated above, I accept this civil revision, set aside the judgment and decree of the learned District Judge and restore chose of the trial Court with costs throughout.

A.A. Revision accepted .

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