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(a) Civil Procedure Code (V of 1908)‑‑

‑‑‑0. VI, R. 17‑‑Amendment of plaint‑‑Object behind 0. VI, R. 17, C.P.C. stated‑‑Court may, in special circumstances, allow amendment of plaint even if it had the effect of depriving the defendant of his right to plead limitation. ‑‑‑[Limitation].

It is difficult to accept as a general proposition that the power available to the Court under Order VI, Rule 17, C.P.C. to allow amendment of plaint should not be exercised in a case where the amendment would take away from the defendant the right of defence under the law of limitation.

The object behind Rule 17 of Order VI, C.P.C. is to empower the Court to allow amendment of the plaint where it finds that such amendment would be necessary for determination of the real question in controversy between the parties. It is true that while exercising the above power, the Court has to see that the amendment allowed by it should not work injustice to the other side and in a case where the amendment would take away a right which had accrued to the other party by lapse of time the Court generally would not accede to the request for amendment. As for instance the plaintiff would not be permitted to introduce a cause of action through amendment of the plaint when on the date when the amendment is sought his claim under the new cause of action has become barred by limitation. But in exceptional circumstances the Court may allow amendment of the plaint even if it has the effect of depriving the defendant of his right to plead limitation. As for instance where amendment of plaint has been sought to rectify a clerical error or omission in the plaint, the fact that the amendment has been sought after the expiry of the period of limitation, should not preclude the Court from exercising its power under Order VI, Rule 17,j C.P.C.

Tirath Ram v. Dina Nath A I R 1933 Lah. 774 (2), Benwari Ram and another v. Muhammad Yar Khan etc. A I R 1941 All. 49; Ramkaran Thakur and others v. Baldeo Thakur and others A I R 1938 Pat. 44 and Lakshmanacharyulu v. Madduri Venkataramanjua Charyulu A I R 1926 Mad. 827 not approved.

Charan Das v. Amir Khan A I R 1921 PC 50; Abdul Hamid v. Khushi Muhammad P L D 1981 Lah. 29; Abdul Karim v. Mashal Khan P L D 1980 Pesh. 34; Manzoor Hussain v. Sajawal 1983 S C M R 465 and Ghulam Nabi v. Sardar Nazir Ahmad 1985 S C M R 824 ref.

(b) Civil Procedure Code (V of 1908)‑

‑‑‑0. VI, R. 17‑‑Punjab Pre‑emption Act (I of 1913), Ss. 15 & 21‑‑Suit for pre‑emption‑‑ Amendment of plaint‑‑Plaintiffs‑respondents misled by copy of registered sale‑deed through which suit land was purchased by vendees inasmuch as particular Killa number of relevant square of land was not mentioned in said copy and it was on the basis of description of land given therein that the suit was instituted by them‑‑Omission of said Kills. number in the plaint being not intentional, could be considered only accidental and through inadvertence‑‑Trial Court, held, had rightly exercised its discretion in allowing amendment of the plaint and its findings that suit instituted by plaintiffs‑respondents was not for partial pre‑emption was, therefore, correct and not open to question.

(c) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑Pre‑emption, right of‑‑Suit for pre‑emption‑‑Pre‑emptors minors and possessing independent right to pre‑empt sale of suit land‑‑Right of such pre‑emptors, held, could not be lost on account of participation of their father in the negotiation of sale in dispute or even on account of undertaking given by him to vendees at time of sale that no suit to pre‑empt the sale would be instituted.

Sanwal Das v. Jaigo Mal and others A I R 1924 Lah. 66 ref.

(d) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑Suit for pre‑emption‑‑ Collusion‑‑Proof‑‑Strict proof required to prove that pre‑emptor's suit was collusive‑‑Mere fact that some person other than the pre‑emptor had financed the suit, held, would not establish that the suit was Benami and was not for the benefit of pre‑emptor himself.

Lal Din v. Allah Ditta P L D 1967 Lah. 703 and Imam v. Saif‑ur‑Rahman P L D 1984 SC 415 ref.

(e) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑Suit for pre‑emption ‑‑Pre‑emption, right of‑‑Possession of vendee‑appellants as tenants at time of sale of land in dispute, held, could not defeat the plaintiff's right of pre‑emption because vendees' right to purchase the land in preference to plaintiffs had been lost by joining in the sale with other persons who did not possess similar qualifications as claimed by them.

(f) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑Suit for pre‑emption‑ ‑Pre‑emption, right of Plaintiffs respondents admittedly descendants of maternal‑uncle of the vendors, falling in category of class IV distant kindred and entitled to inherit the property of the vendors‑‑Claim of plaintiffs‑respondents of superior right of pre‑emption on account of their relationship with vendors, held, was fully proved.

Mulla on Principles of Mahomedan Law, 1977 Edn., p. 90 ref.

(g) Punjab Pre‑emption Act (I of 1913)‑‑

‑‑‑S. 15‑‑Suit for pre‑emption‑‑ Claim of vendees for compensation for improvements made in suit land‑‑No reliable evidence produced by vendees to substantiate their contention that they had constructed eight or nine rooms in the Haveli‑‑Contention that they had planted eight hundred trees in the suit land also not proved‑‑Claim that a part of land which was Thur was reclaimed after sale and claim for amount spent on levelling the land not established‑‑Trial Court, held, had rightly rejected claim of vendees for compensation for improvements.

Ch. Khurshid Ahmad for Appellants. Date of hearing: 31st March, 1985.

C.A. RAHMAN, J.‑‑ This regular first appeal has arisen out of a pre‑emption suit, instituted by Jahangir Ali, Mst. Zarina, and Mst. Samina minor respondent Nos.l to 3 through their father Mian Abdul Raoof on 10‑5‑1975, to pre‑empt the sale of land measuring 371 kanals 5 marlas situated in village Rachand, Tehsil and District Sheikhupura, effected by Abdul Jabbar, Abdul Ghaffar, Mst. Raisa, Mst. Suraya, Mst. Bilqees and Mst. Nafeesa sons and daughters of Sardar Abdul Majid and Muhammad Fazal Alim son of Sardar Fazal Hakim through the registered sale deed dated 11‑5‑1974 for an ostensible price of Rs.2,90,000.00 in favour of Nawab Din, Nur Muhammad, Din Muhammad sons of Chiragh Din, Haji Muhammad Ismail son of Nabi Bakhsh, Nur Muhammad son of Ali Bakhsh and Samiullah son of Rehmatullah and Bashir Ahmad son of Jamal Din on the ground of their relationship with the vendors. Respondent Nos. 1 to 3 contended that the land in question had been sold for Rs.2,40,000.00, which was also its market value but in order to defeat their right of pre‑emption fictitious price of Rs.2,90,000.00 was mentioned in the sale deed. However, in the replication filed by them they admitted the price of the suit land as Rs.2,90,000.00 and showed their willingness to pay the same in the event of their suit being decreed.

2. After the institution of the suit Din Muhammad, one of the vendees, died and his ‑legal representatives, namely, Bashir Ahmad, Mst. Hamidan Bibi, Mst. Rashidan Bibi and Mst. Bashiran Bibi son and daughters were allowed to defend the suit. In the joint written statement filed by Nawab Din, Nur Muhammad, Bashir son of Din Muhammad, and Nur Muhammad son of Ali Bakhsh, Samiullah and Bashir Ahmad son of Jamal Din, the superior right of pre‑emption claimed by respondents No.1 to 3 was denied and it was pleaded that they were entitled to purchase the land in question in preference to any other person as they were in possession of the suit land as tenants at the time of the said sale. In addition to the price of the land amounting to Rs.2,90,000.00 paid by them they claimed to have spent 85.30,000.00 on the improvements made in the land as well as the Haveli purchased by them. A number of legal objections were also raised in the written statement inasmuch as the suit was bad for non‑joinder of necessary and proper parties; the suit was not properly valued for the purpose of court‑fee and jurisdiction; it was barred by time as proper court‑fee had not been paid at the time of its institution; it was liable to be dismissed as the entire property purchased by them was not described in the plaint; the court‑fee paid on the plaint was deficient as no court‑fee had been paid on the amount incurred by them on the improvements effected by them after the purchase of the land; suit was benami as it had been instituted for the benefit of Mian Abdul Latif; the right of pre‑emption had been waived on account of active participation of the pre‑emptiors' father Mian Abdul Raoof and their grand‑father Mian Abdul Latif in the bargain of sale; and the plaint was liable to be rejected as it was not duly certified as required under Order VI rule 15 of Civil Procedure Code. Mst. Rashida Bibi, Mst. Mamidan Bibi, Mst. Bashiran Bibi daughters of Din Muhammad deceased‑vendee filed a separate joint written statement reiterating the averments made by the aformentioned vendees. Muhammad Ismail, one of the vendees, did not join the other vendees when they submitted the written statement referred to above as his name was omitted in the last amended plaint filed by the pre‑emptors in the Court. He, however, had joined the vendees in the written statement earlier filed by them on 2‑10‑1976 wherein the suit was contested on the same grounds as were stated in the aforementioned written statement, which was filed on 27‑7‑1979. It may not be out of place to mention here that the name of Muhammad Ismail vendee was allowed to be inserted in the list of the defendants by the trial Court at the request of the pre‑emptors as his name had been omitted in the amended plaint inadvertently and despite that omission he had been participating in the proceedings and defending the suit along with other vendees. From the pleadings of the parties, the trial Court framed the following issues:‑

(1) Whether the suit is bad for non‑joinder of the necessary and proper parties O.P.D.;

(2) Whether the suit is not properly valued for the purposes of court‑fee and jurisdiction 0. P. D. ;

(3) If issue No.2 is proved, then what is the correct valuation 0. P. Parties;

(4) Whether the suit is barred by time O.P.D.;

(5) Whather the suit is for partial pre‑emption O.P.D.;

(6) Whether the suit is not maintainable O.P.D.;

(7) Whether the plaintiffs are estopped from bringing this suit (In view of the objection raised in preliminary objection No.7) O.P.D.;

(8) Whether the suit is mala fide, false, collusive and vaxatious O.P.D.;

(9) Whether the suit is Bainami and not proceedable O.P.D.;

(10) Whether the suit is incompetent (based on preliminary objection No.ll) O.P.D.;

(11) What is the effect of non‑description of the suit land in the prayer clause of the plaintiff O.P.D.; (12) Whther the defendants had tenancy right in the suit land before the sale in dispute 0 . P . D . ;

(13) Whether the suit has not been properly verified If so to what effect O.P.D.;

(14) Whether the plaintiffs have a superior right of pre‑emption as against the vendee/ defendants O.P.D.

(15) Whether the defendants have effected any improvements If so to what extent 0 . P . D . and

(16) Relief.

3. The parties led evidence in support of their respective contentions. The trial Court after analysing the oral as well as documentary evidence adduced by the parties and considering their submissions decided all the issues against the vendees and decreed the suit of respondent Nos.l to 3 on payment of Rs.2,90,000.00 vide judgment dated 4‑9‑1979. Feeling aggrieved by the judgment and decree of the trial Court, the present appeal was filed by all vendees and the legal representatives of Din Muhammad deceased.

4.. Before the hearing of the appeal, Nawab Din and Nur Muhammad sons of Chiragh Din and the legal heirs of Din Muhammad deceased, who had purchased 1/2 share of the suit land withdrew from the appeal and were allowed to be impleaded as respondents Nos. 4 to 9 by the remaining appellants Nur Muhammad, Samiullah, Bashir Ahmad and Haji Muhammad Ismail, who had purchased 1/2 share in the suit land.

5. In the memorandum of appeal, the findings of the trial Cour under all the issues were assailed by the appellants but at the time of hearing of the appeal, learned counsel for the appellants addressed arguments only with regard to the . findings of the trial Court under issue Nos. 5, 8, 9, 14 and 15.

6. Learned counsel for the appellants submitted that the suit instituted by respondent Nos.l to 3 was liable to be dismissed on the ground of being a suit for partial pre‑emption inasmuch as the entire property,, which was the subject matter of the sale effected through regisered sale deed dated 11‑5‑1974 was not mentioned in the plaint initially filed by them. It was only after an objection was raised by the appellants that respondent No.l to 3 moved the learned trial Court for amendment of their plaint on 15‑11‑1975 so as to include Killa No.11 of Square No.84 in the plaint which had been omitted in the plaint filed on 10‑5‑1975. The above application was allowed by the trial Court and thereafter amended plaint was filed on 26‑2‑1976 when the period of limitation for filing the suit had already expired. According to the learned counsel for the appellants, the trial Court should not have allowed amendment of the plaint after the expiry of the period of limitation and in support of his submissions, he relied on Tirath Ram v. Dina Nath A I R 1933 Lah. 774 (2). Benwari Ram and another v. Muhammad Yar Khan etc. A I R 1941 All. 49, Ramkaran Thakur and others v. Baldeo Thakur and others A I R 1938 Pat. 44.

7. In the first case cited by learned counsel for the appellants (Tirath Ram v. Diria Nath), the pre‑emptor's request or amendment of the plaint so as to plead a new ground in support of his claim of pre‑emption was disallowed by the Court, as it was held that the proposed amendment would deprive the vendee from a legal right accrued to him by lapse of time. In Banwari Ram and another v. Muhammad Yar Khan, the plaintiff was not allowed to amend the plaint after the expiry of limitation, because he knew at an early stage of the proceedings that his plaint was defective and opportunity was given to him to amend the plaint and yet he had failed to remove the defect. In Ramkaran Thakur and others v. Baldeo Thakur and others A I R 1938 Patna 44), the Court disallowed amendment of the plaint because the plaintiffs‑ mortagees had failed to ask for money decree by way of alternative relief in the plaint and had sought its amendment at a time when his claim had become barred by limitation. In the case of Addanki Lakshmanacharyulu v. Madduri Venkataramanjua Charyulu A I R 1926 Mad. 827 amendment of the plaint so as to correct the date on which one of the amounts in suit was borrowed by the defendant, was refused on the ground that the amendment would have the effect of depriving the defendants of the defence of limitation.

8. It is difficult to accept as a general proposition that the power available to the Court under Order VI rule 17 C.P.C. to allow amendment of plaint should not be exercised in a case where the E amendment would take away from the defendant the right of defence under the law of limitation. In this connection references may be made to the following observations made by the Privy Council in Charan Das v. Amir Khan A I R 1921 PC 50:‑

"That there was full power to make the amendment cannot be disputed, and although such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right, which has accrued to him by lapse of time yet there are cases where such considerations are outweighed by the special circumstances of the case."

9. The object behind Rule 17 of Order VI, C.P.C. is to empower the Court to allow amendment of the plaint where it finds that such amendment would be necessary for determination of the real question in controversy between the parties. It is true that while exercising the above power, the Court has to see that the amendment allowed by it should not work injustice to the other side and in a case where the amendment would take away a right which had accrued to the there party by lapse of time the Court generally would not accede to the request for amendment. As for instance the plaintiff would not be permitted to introduce a cause of action through amendment of the plaint when on the date when the amendment is sought his claim under the new cause of action has become barred by limitation. But in exceptional circumstances as observed in Charan Das's case, noticed above the Court may allow amendment of the plaint even if it has the effect of depriving the defendant of his right to plead limitation. As for instance where amendment of plaint has been sought to rectify a clerical error or omission in ‑'he plaint, the fact that the amendment has been sought after the expiry of the period of limitation, should not preclude the Court from exercising its power under Order VI Rule 17 C.P.C. In this connection, reference may be made to Mst. Miran v. Mir Hussain and another 1980 C L C 549, where correction of wrong survey number of the suit land entered in the plaint in a pre‑emption suit was allowed to be corrected by amendment even after the expiry of the period of limitation prescribed for the filing of the suit. In Abdul Hamid v. Khushi Muhammad P L J 1981 Lah. 29, which was also a pre‑emption suit, amendment of the plaint was allowed to rectify the error occurring in the plaint regarding description of the land on account of mistakes in the copies of sale deed and Jamabandi supplied to the pre‑emptor, although the period of limitation for filing the suit had expired. Abdul Karim v. Mashal Khan P L D 1980 Pesh. 35 and Manzoor Husain v. Sajawal 1983 S C M R 465 may also be referred to in this connection. In Ghulam Nabi v. Sardar Nazir Ahmad, a case recently decided by the Supreme Court which is reported as 1985 SCMR 824, it was held that clerical errors and omissions and mis‑description in respect of the suit property having inadvertently crept into the plaint at the time of its presentation could be allowed to be rectified and removed by amendment of the plaint. Under the circumstances, it could not be said that any right had accrued to the other party on account of the expiry of the period of limitation. Amendment under such circumstances could be allowed even at the stage of appeal in the highest Court.

10. In the present case respondent Nos.l to 3 were misled by the certified copy of the registered sale deed (Exh.P.6) through which the suit land was purchased by the vendees inasmuch as Kills. No.11 of Square No.84 was not mentioned in the said copy and it was on the basis of the description of the land given in the aforementioned copy of the sale deed that the suit was instituted by them. The omission of Killa No.ll of Square No.84 in the plaint was, therefore, not intentional and as such could be considered only accidental and through inadvertence. In the circumstances of the case, the trial Court had rightly exercised its discretion in allowing amendment of the plaint. The finding of the trial Court under issue No. 5 that the suit instituted by respondent Nos. l to 3 was not for partial pre‑emption was, therefore, correct and not open to question.

11. The appellant's contention that the suit instituted by respondent Nos. l to 3 was collusive and Benami giving rise to issue Nos. 8 and 9, was rejected by the trial Court, as the oral evidence produced by the appellants in that behalf was not reliable. Learned counsel for the appellants submitted that the learned trial Court had failed to appreciate the evidence produced by the appellants. According to the appellants Mian Abdul Latif, had persuaded them to purchase the suit land and had taken active part in the bargain of sale but after the sale he got the pre‑emption suit, instituted by his minor grand children. He provided them with necessary funds to meet the litigation expenses. Learned counsel for the appellants referred to the depositions of Abdul Rashid D.W.1, Ghulam Nabi D.W. 5, Muhammad Ismail appellant D.W.7 and Nawab Din appellant D.W.9. Abdul Rashid D.W.1 deposed that the bargain of sale was struck at the bungalow of Mian Abdul Latif. He was present when the bargain of sale was struck and had given assurance that the sale would not be pre‑empted. Ghulam Babi D.W. 5 stated that the sale deed was written by Iqrar Shah petition‑writer at the instance of Mian Abdul Latif who even received the sale price paid at the time of registration of the sale deed. He further deposed that about a year before his making statement in Court he alongwith Nawab and Ismail appellants had approached Mian Abdul Latif and had requested him to withdraw the pre‑emption suit if he needed their votes in the election. Mian Abdul Latif, told them that they should first cast their votes in his favour and after the election he would consider the matter of withdrawal of suit. Muhammad Ismail appellant, while appearing as D.W.7, stated that the land in dispute was purchased by him alongwith the co‑appellants on the persuasion of Mian Abdul Latif and Mian Abdul Raoof, who gave them assurance that no pre‑emption suit would be instituted in respect of the above sale. According to him the bargain of sale was struck at the bungalow of Mian Abdul Latif. Subsequently the sale deed was drawn up by the deed‑writer at his instance. He also stated that after the sale Mian Abdul Latif got the pre‑emption suit instituted through his son Abdul Raoof for his own benefit. He also provided necessary funds for the purpose. Nawab appellant appeared as D . W .9 to state that the land in question was purchased at the instance of Mian Abdul Raoof and that the bargain of sale was struck at his residence, Even the sale deed was written by the petition‑writer at the instance of Mian Abdul Latif. He further stated that Mian Abdul Latif had demanded Rs.10,000.00 from them for withdrawing the pre‑emption suit.

12. The oral evidence, referred to above, consisted of two parts. One part dealt with the plea taken up by the appellants that respondent Nos.l to 3 had waived their right of pre‑emption and were estopped to file the pre‑emption suit, because their father Mian Abdul Rauf and grand‑father Mian Abdul Latif had taken active part in the negotiations of sale of the suit land and had given assurance to them that the sale of the suit land would not be pre‑empted. Although no specific issue was framed by the learned trial Court to deal with the abovementioned plea, yet the evidence produced by the appellants in support of their plea was received. Respondent Nos.l to 3, however, did not produce any evidence in rebuttal probably for the reason that the appellants' evidence even if accepted by the Court, would not preclude them from exercising their right of pre‑emption, as the participation of their father and grand‑father in the negotiations of sale and the undertaking given by them at the time of sale that no suit to pre‑empt the sale would be instituted, could not affect their right of pre‑emption.

13. The respondents‑ pre‑emptors were minors and they possessed independent right to pre‑empt the sale of the suit land. Their right could not be lost on account of participation of their father in the negotiation of the sale in question or even on account of the undertaking given by him to the vendees at the time of sale that no suit to pre‑empt the sale would be instituted. Reference in this connection may be made to Sanwal Das v. Jaigo Mal and others A I R 1924 Lah. 66.

14. The other part of the oral evidence produced by the appellants was in respect of their contention that the suit filed by respondent Nos.l to 3 was collusive and Benami inasmuch as it was instituted at the instance of Mian Abdul Latif for his benefit. There was no direct evidence that the aforesaid respondents had filed the pre‑emption suit at the instance of their grand‑father Mian Abdul Latif. The appellants' contention that Mian Abdul Latif bore the entire expenses incurred in the filing of the suit was also not proved. The appellants tried to show that the suit was instituted by respondents Nos. 1 to 3 at the instance of Mian Abdul Latif because the latter had promised to consider the appellants' request for withdrawal of the suit when he was approached by the appellants and Ghulam Nabi (D.W. 5) with an offer that he would be supported at the election if the suit instituted by the respondents was withdrawn. According to Nawab appellant, Mian Abdul Latif demanded Rs.10,090.00 for the withdrawal of the suit when he was contacted by the appellants and Ghulam Nabi (D.W.). There was apparent inconsistency in the two versions, one given by Ghulam Nabi (D.W.) and the other given by Nawab appellant. Muhammad Ismail appellant, who too had accompanied the aforesaid persons when they met Mian Abdul Latif, did not refer to any such meeting with Mian Abdul Latif in the statement made by him while appearing as D.W.7. It now well settled that strict proof is required to prove that the pre‑emptor's suit is collusive. The mere fact that some person other than the pre‑emptor, has financed the E suit instituted by the pre‑emptor, would not establish that the suit is Benami and is not for the benefit of the pre‑emptor himself. Reference in this connection was made to Lal Din v. Allah Ditta PLD 1967 Lah. 703 and Iman v. Saif‑ur‑Rahman P L D 1984 SC 415.

15. The next submission made by learned counsel for the appellants was with regard to the superior right of pre‑emption of respondent Nos.l to 3. During the trial, the appellants contested the respondents' claim of superior right of pre‑emption on the ground that they were in possession of the suit land as tenants at the time of sale. But at the time of hearing of the appeal, learned counsel for the appellants did not press their above plea before us presumably for the reason that the evidence produced by the appellants did not establish that they all were in possession of the land in dispute as tenants when. they purchased the land in dispute. The possession of Nawab and Muhammad Ismail appellants as tenants at the time of sale of the land F in question could not defeat the respondents' right of pre‑emption, because the aformentioned appellants' right to purchase the land in preference to respondents Nos. 1 to 3 was lost by joining in the sale with other appellants, who did not possess similar qualifications as claimed by them.

16. Learned counsel for the appellants contended that the superior right of pre‑emption of respondents Nos.l to 3 was not proved as they had failed to establish that they would have been entitled to inherit the share of land owned by Abdul Jabbar, Abdul Ghaffar, Mst. Raisa, Mst. Surayya, Mst. Bilqees and Mst. Nafeesa vendors in the event of their death, if they had not sold the land within the meaning of section 15(b) thirdly of the Punjab Pre‑emption Act, 1913. Learned counsel for respondent Nos.l to 3, on the other hand, submitted that the said respondents fell in the category of 'distant kindred' being the descendants of Fazal Hakim the maternal uncle of the aforementioned vendors and as such were entitled to inherit their land as their heirs.

17. Respondents Nos. 1 to 3, in order to prove their relationship with the vendors, produced copy of Mutation No.336 (Exh.P.l), copy of pedigreetable (Exh. P.2) and copy of Mutation No. 165 (Exh. P.3) besides examining Mian Abdul Qayyum and their next friend and father Mian Abdul Rauf as P.W. 1 and P.W. 2 respectively. According to the aforementioned witnesses, respondent Nos.l to 3 were son and daughters of Mst. Khudeeja Begum the sister of Fazal Alim vendor. The other vendors were sons and daughters of Mst. Maryam Begum sister of Fazal Hakim father of Mst. Khudeeja and Fazal Alim. The above oral evidence was supported by the entries in the revenue record refereed to above. As the appellants did not produce any evidence in rebuttal, the relationship of the above respondents with the vendors stood proved. The only question for consideration was whether the said respondents were entitled to inherit the property of Abdul Jabbar, Abdul Ghaffar, Mst. Raisa, Mst Surayya, Mst. Nafeesa and Mst. Bilqees. Respondents Nos. 1 to 3 being admittedly the descendants of Fazal Hakim, the maternal uncle of the aforementioned vendors, fell in the category of class IV distant kindred as described in paragraph 76(b) in "Mulls on the Principles G of Mahomedan Law," 1977 Edition (page 90). They were entitled to inherit the property of Abdul Jabbar, Abdul Ghaffar, Mst. Raisa, Mst. Surayya, Mst. Nafeesa and Mst. Bilqees. The claim of respondents Nos. 1 to 3 of superior right of pre‑emption on account of their relationship with the vendors, was, therefore, fully proved. The learned trial Court accordingly rightly decided issue No. 14 in favour of respondents Nos. 1 to 3.

18. The last submission made by the learned counsel for the appellants was with regard to the appellants' claim for compensation for improvements effected by them in the suit land after the sale. Learned counsel contended that the evidence produced by the appellants was not duly considered by the learned trial Court and was brushed aside for no cogent reasons. He stated that it was evident from the copy of the sale deed that there was no Haveli in the suit land at the time of sale, as the sale deed did not contain any reference to the said haveli. The appellants had constructed the Haveli after purchasing the land for which they were entitled to claim compensation. The evidence produced by the appellants also showed that they planted trees in the suit land and had incurred expenses on levelling the land and bringing a part of Banjar land cultivation.

19. In the written statement filed by the appellants, it was contended that they had renovated the existing Haveli and had made it more spacious by constructing seven rooms at the cost of Rs.15,000.00. It was further stated that they had planted 8000 trees in the land and had brought 8 acres of their land under cultivation. According to the appellants they had in all spent Rs.30,000 upon improvements made by them in the land after they purchased it. In order to prove their above contentions, they produced oral evidence. The learned trial Court did not accept the oral evidence for the reasons given in the judgment.

20. The appellants' contention that there was no Haveli in the suit land when it was purchased by them stood belied by their own averment in the written statement and the admission of Muhammad Ismail appellant made by him while appearing as DW 7 that there was Haveli in the suit land before they acquired possession of the land. No reliable I evidence was produced by the appellants to substantiate their contention that they had constructed eight or nine rooms in the Haveli and had spent Rs.15,000 on it. Muhammad Ismail appellant made a general statement that approximately a sum of Rs. 30,000 or Rs. 32,000 was spent on improvements, but he did not give any detail of the expenditure. Similarly Nawab Din appellant did not give the detail of the total expenditure amounting to Rs.30,000 allegedly incurred by them on the improvements. The appellants' contention that they had planted eight hundred trees in the suit land was also not proved. Zahoor Ahmad (DW 3), Bashir Ahmad (DW 4) and Ghulam Nabi (DW 5), who deposed that the appellants had planted trees in the land in question, were unable to give the number of trees planted by the appellants when cross‑examined by the respondents' counsel. Similarly, the appellants' claim that a part of the suit land which was Thur and unfit for cultivation was reclaimed by them after the sale, was not proved, because they failed to show how much land out of the total area purchased by them was not fit for cultivation at the time of sale and out of that land how much land was brought under cultivation by them. Dashir Ahmad (DW 6), whose tractor was allegedly hired by the appellants five or six times for levelling the suit land did not state as to what amount was paid to him by the appellants for using his tractor. Thus, on the basis of the evidence produced by the appellants, the learned trial court rightly rejected their claim for compensation for improvements.

21. In view of the above discussion, we find no merit in this appeal which is accordingly dismissed with costs.

S.Q./N‑50/L Appeal dismissed.

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