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Civil Petition No. 106‑R of 1986, decided on 1st July, 1986.
(From the judgment of the Lahore High Court, Rawalpindi Bench, dated 23‑4‑1986, passed in Writ Petition No. 429 of 1981).
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), O.VI, R.17‑ Amendment of plaint‑‑Suit for pre‑emption‑‑ Sale of land through registered sale deed‑‑Evidence revealed that incorrect Khasra number was described in sale‑deed‑‑Pre‑emptor's application for amendment of plaints allowed‑‑Order impugned‑‑Leave granted to consider contention that land described in sale‑deed was sold whether rightly or wrongly and pre‑emptor could pre‑empt only that land if he had a superior right of pre‑emption‑‑If piece of land sold was incorrectly described in sale‑deed, it could not be rectified by allowing amendment of plaint because that would tantamount to correction of Khasra number in the very sale deed which was not function of Civil Court.
Sh. Zia‑ud‑Din, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for petitioners.
Nemo for Respondents.
Date of hearing: 1st July, 1986.
Iftikhar Ahmad and others seek leve to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 23‑4‑1986, whereby the writ petition of Ghulam Farooq was accepted and the order of the learned Additional District Judge, Attock, dated 14‑9‑1981, was set aside.
2. The brief facts are that Iftikhar Ahmad and others purchased land measuring 2 Kanals equal to 2/3rd share of property comprised in Khasra No. 4509/4491/706 situate at Mauza Fatehjang, for a consideration of Rs.20,000 on the basis of a registered sale‑deed. Mutation No.6069 was then attested on 3‑6‑1980 in favour of the vendees. the sale was pre‑empted by Ghulam Farooq respondent and a suit was brought in the Court of Senior Civil Judge, Attock. During the recording of the statement of the Patwari, it transpired that the correct Khasra number of the suit property was 4905/4491/706 and not 4509/4491/706 as given in the sale‑deed. This prompted the pre‑emptor to submit an application under Order VI, rule 17, C.P.C. for amendment of his plaint. This application was resisted by the vendees but the learned trial Court vide its order dated 17‑6‑1981 allowed permission to the pre‑emptor to amend his plaint. This order was made a subject‑matter of revision before the Additional District Judge who set aside the order of the trial Court and dismissed the application for amendment on 14‑9‑19'81. This order was challenged through a constitutional petition in the High Court which resulted in the impugned order.
3. The learned counsel for the petitioners contended that in the sale‑deed Khasra No.4509/4491/706 was sold whether rightly or wrongly and the pre‑emptor can pre‑empt only that land if he has a superior right of pre‑emption. If the piece of land sold is incorrectly described in the sale‑deed, it could not be rectified by allowing amendment of the plaint because that would tantamount to the correction of the Khasra number in the very sale‑deed which is not the function of the Civil Court. The point raised needs consideration. Leave to appeal is accordingly granted. Security Rs.2,500.
M. I. Leave granted.
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