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Civil Revision No. 1402-D of 1985, decided on 5th November, 1985.

---0. XLI, R. 27--Punjab Pre-emption Act (I of 1913), Ss. 4 & 15- Pre-emption suit--Additional evidence--Respondent's suit for pre-emption decreed by Court --Petitioners/vendees claiming to be collaterals of vendors submitted an application during pendency of appeal for placing a copy of pedigree-table by way of additional evidence--Perusal of pedigree-table showing that petitioners' claim that they were collaterals of vendor not established--Oral evidence produced by petitioners in Court below to prove their relationship with vendor but oral evidence was not supported by pedigree-table sought to be tendered as additional evidence--No useful purpose likely to be served by additional evidence as pedigree-table was not connecting petitioner with vendor Appellate Court, held, justified in rejecting petitioners' application for additional evidence.

---0. XLI, R. 27--Punjab Pre-emption Act (I of 1913), Ss. 4 & 15- Pre-emption suit--Claim of petitioner/ vendor for compensation for improvements effected by them by constructing houses in suit land- Petitioner admitting, while appearing as witness, that houses in question were constructed by them prior to purchase of land by them but explaining afterwards that he had inadvertently stated so Explanation of petitioner, held, could not be considered at revision stage Petitioner should have moved Trial Court for rectifying alleged error Petitioner failing to show why his said claim was not included in their written statement--Petitioners' prayer for amendment of their written statement to enable them to claim amounts incurred by them, therefore Was rightly disallowed by Appellate Court as it was 'not appropriate to re-open case at appeal stage for determination of additional claim.

---S. 115--Punjab Pre-emption Act (I of 1913). Ss. 4 & 15--Pre-emption suit--Court-fee--Trial Court finding that on basis of statement of annual net profits of suit land, respondent-pre-emptor was not liable to pay court-fee as fifteen times of annual net profits was less than rupees twenty-five thousand--Findings of Court below on question of court-fee correct and arrived at on basis of material available on record--Appellate Court observing that statement of annual net profits filed by respondent in Court, was not correct as statement was not prepared in respect of crops of Rabi and Kharif--In absence of said statement it was, held, difficult to say that fifteen times of annual net profits would have been more than rupees twenty-five thousand necessitating payment of court-fee by plaintiff pre-emptor--Interference declined at revision stage

Sh. Abdul Aziz for Petitioners.

The petitioners have called in question judgment and decree dated 3-2-1985 passed by the Civil Judge. Ist Class, Toba Tek Singh as affirmed by the learned Additional District Judge, Toba Tek Singh on 30-6-1985 whereby respondent's suit for possession through pre-emption of land measuring 5 Kanals situated in Chak No. 561/G.B., Tehsil and District Toba Tek Singh was decreed on payment of Rs.25,000 as purchase money.

2. Muhammad Ramzan respondent instituted the aforementioned suit against the petitioners on 4-2-1982 to pre-empt the sale of land in suit effected through sale-deed, dated 5-2-1981 for rupees twenty-five thousand on the ground that he was an owner in. the estate in which the land in question was situated. The suit was contested by the petitioners inter alia on the ground that they being the collaterals of the vendor, possessed preferential right to purchase the land as against the respondent and he had no cause of action to file the suit; that they had spent rupees twenty thousand on the construction of houses in the suit land after the sale and in the event of decree in favour of the respondent, were entitled to receive the aforementioned amount in addition to the price of the land paid to the vendor; and that the suit was not properly valued for the purposes of court-fee. The pleadings of the parties gave rise to the following issues:-

(1) Whether the plaintiff has no cause of action O.P.D.

(2) Whether the defendants have made any improvements If so when and to what extent and what effect 0. P.D.;

(3) Whether the plaintiff has a superior right of pre-emption, if any

(3-A) Whether the suit is correctly valued for the purpose of court-fee and jurisdiction O. P. P. ;

(3-B) If not what is the correct valuation and with what effect O.P.P. and

(4) Relief.

3. The parties led evidence in support of their respective contentions and the learned trial Court, after considering the evidence and hearing their counsel, decided issues Nos. 1, 2 and 3-A against the petitioners and issue No. 3 in favour of the respondent. As a result of the above findings, the respondent's suit was decreed on 3-2-1985. The petitioners preferred appeal against the judgment and decree of the learned trial Court, but the same was dismissed by the learned Additional District Judge on 30-6-1985. During the pendency of the appeal, the petitioners submitted an application under Order XLI, Rule 27, C.P.C. for placing a copy of pedigree-table by way of additional evidence, but the application was dismissed by the learned Additional District Judge. Another application submitted by the petitioners seeking permission to amend the written statement so as to incorporate the claim for payment of amounts incurred by them at the time of registration of the sale-deed, was also rejected by the learned Additional District Judge.

4. Learned counsel for the petitioners has submitted that documentary evidence in the form of pedigree-table (Exh.D.l) and the oral evidence comprising the statements of Abdul Aziz (D.W.1) and Muhammad Yusuf (D.W.2) has not been properly appreciated by the Courts below. The omission of the name of Abdul Aziz (D.W.) as one of the sons of Umer Bakhsh in the pedigree-table has been considered as the main reason by the learned trial Court for rejecting the testimony of Abdul Aziz. The petitioners had obtained the copy of the pedigree-table which had been received alongwith the last Jamabandi from India showing the ownership of petitioners' land in the East Punjab. It was at a late stage that the petitioners were able to get a copy of the earlier pedigree-table also in which the name of Abdul Aziz was mentioned as son of Umar Bakhsh. The petitioners wanted to place the above copy on record as additional evidence, but they were not permitted by the learned Additional District Judge.

5. On going through the copy of pedigree-table (Exh.D.l), photo copy of which has been filed alongwith the revision petition, and photostat copy of the pedigree-table sought to be placed on record as additional evidence, it has been found that the petitioners' claim that they were collaterals of Muhammad Yusuf, who sold the land in question, was not established.

According to the table of relationship given by the petitioners in their written statement, their great-grandfather Jhandu, was brother of Umar Bakhsh father of Muhammad Yousaf vendor.

But in the copies of pedigree-table, the name of the petitioners' father Muhammad Shafi has not been shown.

Similarly there is no indication that Jhandu and Umar Bakhsh were brothers and the sons of Saidu as indicated in the table of relationship. The Courts below have rightly discarded oral evidence produced by the petitioners to prove their relationship with the vendor, as that evidence is not supported by .the pedigree-table, placed on record or sought to be tendered as additional evidence. The learned Additional District Judge was justified in rejecting the petitioners' application for additional evidence, because apart from the consideration that the copy of pedigree-table was sought to be brought on record to fill up lacuna in the petitioners' evidence, no useful purpose could have been served by the admission of the above document, as it could not connect the petitioners with the vendor.

6. The petitioners' claim for compensation for the improvements effected by them by constructing houses in the suit land has been disallowed by the learned trial Court on the ground that Islam Bari petitioner admitted, while appearing as P.W.3, that the houses in question were constructed by them in 1979 i.e. prior to the purchase of the land by the petitioners. Learned counsel for the petitioners has tried to explain that Islam Bari petitioner had inadvertently mentioned the year of construction of the houses as 1979, because in fact the construction had taken place in 1981 after the purchase of the suit land by the petitioners. The above explanation, however, cannot be considered at this stage when the matter has come up before this Court in revision. The petitioners could have moved the learned trial Court for rectifying the alleged error committed by Islam Bari while appearing as D.W.3. On the basis of the admission made by him, the Courts below rightly concluded that the cost of construction of the house situated in the suit land could not be claimed as compensation for improvements by the petitioners. The petitioners' prayer for amendment of their written statement to enable them to claim the amounts incurred by them for purchasing stamp paper, payment of District Council's fee and registration fees was rightly disallowed by the learned Additional District Judge, as the petitioners failed to show why the above claim was not included in the claim made by them in their earlier written statement. Even otherwise, it was not appropriate to re-open the case at the appeal stage for the determination of the petitioners additional claim.

7. On the question of court-fee, the learned trial Court has found that on the basis of the statement of annual net profits of the suit land, the respondent is not liable to pay court-fee as fifteen times of the annual net profits is less than rupees twenty-five thousand. The learned Additional District Judge's observation that the statement of annual net profits filed by the respondent in Court, was not correct, as the statement should have been prepared in respect of the crops of Rabi and Kharif 1981 is not of much significance because in the absence of the statement of annual net profits prepared on the basis of the aforementioned crops, it is difficult to say that fifteen times of, the annual net profits would have been more than twenty-five thousand rupees necessitating payment of court-fee by the respondent. The petitioners could have placed the correct statement of annual net profit on the file, as the onus of proof of issue No.3-R was on both the parties. At this stage, it would not be appropriate to enter upon a fresh inquiry for determining the correct annual net profits of the suit land for the purposes of payment of court-fee. On the basis of the material available on the record, the findings of the Courts below on the - question of the court-fee are correct and do not call for any interference by this Court.

For the foregoing reasons, there is no force in this revision petition which is hereby dismissed in limine.

M . Y . H . Revision declined.

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