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Civil Revision No. 1557-D of 1985, decided on 23rd October 1985.

---S. 115--Punjab Pre-emption Act (I of 1913), S. 15--Pre-emption suit--Delivery of possession--Claim of--Effect--Suit filed to pre-empt land in dispute--Decree in assertion of superior right of pre-emption sought--Objection that possession of land was not claimed in suit, not taken in written statement--Plea taken at argument stage, held, could not succeed--Petition was, therefore, dismissed in limine.

Shah Ahmad Khan Baloch for Petitioner.

Date of hearing: 23rd October, 1985.

This revision petition under section 115, C.P.C. has arisen out of the suit filed by the respondents to pre-empt the land in question sold by one Mst. .Sahid Bibi in favour of the petitioners. The learned trial Court framed necessary issues on the pleadings of the parties and after recording the evidence dismissed the suit vide judgment and decree, dated 30-7-1984 observing that in the suit the plaintiffs/ respondents have failed to ask for delivery of possession. It was further observed that this defect was fatal especially when the plaintiffs have not sought permission to amend the plaint. On appeal the learned Additional District Judge vide judgment and decree, dated 14--4-1985 set aside the decree of the trial Court and decreed the suit in favour of the respondents on payment of Rs.12,500 as pre-emption money.

2. In support of the petition learned counsel for the petitioners argued in support of the ground on which the learned trial Court had dismissed the suit. The second argument advanced is that the plaintiffs having failed to produce any evidence to establish that they had asked the vendees petitioners to surrender the land in acknowledgement of their superior right of pre-emption, were not entitled to institute the suit and as such the suit could not be decreed. Both these pleas are misconceived. The suit was filed to pre-empt the land in dispute. It cannot be successfully argued that in the plaint a simple declaration, that the plaintiffs were possessed of the superior right of pre-emption was claimed. On the contrary decree in respect of the land sold in assertion of the claimed superior right of pre-emption was sought. Moreover, the objection that the possession of the land sought to be pre-empted was not claimed was not taken in the written statement. As such the plea taken at the argument stage should not have been allowed to succeed. The other plea that without making a demand to surrender the land in acknowledgement of the superior right of pre-emption the suit filed was incompetent had not been supported by the learned counsel by citing any judgment or principle of law. The issue framed with respect to the question of cause of action was decided by the learned trial Court in favour of the respondents/ plaintiffs. This finding was not challenged either before the learned appellate Court or before me.

3. For the reasons given above there is no merit in this revision petition and same is dismissed in limine.

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