' RUSTAM ALI MALIK, J.---By filing this revision petition, the petitioners have challenged the judgment and decree dated 14-3-1996 passed by the learned District Judge, Sargodha (who has been wrongly described in the petition as Additional District Judge) and by which he had accepted an appeal against the judgment and decree dated 12-2-1995 passed by the learned Civil Judge, Sargodha and had decreed the suit for possession through preemption in favour of the respondent/ plaintiff on payment of sale price of Rs,1,50,000.
2. The brief facts are that the respondent/plaintiff filed a suit for possession through pre-emption against Allah Yar, etc. Petitioners concerning 40-3/4 Kanals of land. The respondent asserted his superior right of pre-emption on the ground of being a co-sharer and also on the ground of contiguity of the land in dispute to his land and for having a common passage and a common source of irrigation. The suit was resisted by the petitioners on various grounds and on the basis of pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether the plaintiff had got no cause of action and locus standi to file the suit? OPD
(2) Whether the plaintiff had not raised any demands nor the sale in favour of the defendant was injurious to the plaintiff? OPD
(3) Whether the suit is false, frivolous and mala fide, and the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(4) Whether the ostensible sale price of Rs,1,50,000 was fixed in good faith and actually paid? OPD
(5) Whether the defendant had incurred incidental expenses of Rs,25,000, if so, its effect? OPD
(6) Whether the plaintiff had participated in the sale/purchase transaction and had refused to purchase the suit property, thus waived his right, if any, for seeking possession through preemption? OPD
(7) Whether the plaintiff has got a superior right of possession through pre-emption as against the vendee defendant and is entitled to the decree prayed for? OPP
(8) (8) Relief.
(9)
3. During the trial the complainant himself appeared in the witness-box and also examined two other witnesses namely
(10) Shah Muhammad and Muhammad Khan. He also placed on record some documentary evidence and which is in the form of copies of notices as Exh.P.1 to Exh.P.5, copies of postal receipts as Exh.P.6 to Exh.P.10, copy of record of rights for the year 1990-91 pertaining to Khata No,160 as Exh.P.11 and also as Exh.P.12, Aks Shajra as Exh.P.13, copy of Khasra Girdawri as Exh.P.4, copy of Mutation No,1098 as Exh.P.15. From the other side, Zulfiqar, who is one of the defendants appeared in the witness-box as D. W.1. The defendants also examined the vendor namely Sarfraz as D.W.2 and also placed on record documentary evidence i.e, copy of mutation as Exh.D.1, copies of record of rights for the year 1990-91 pertaining to Khatas No,104, 162 and 163 as Exh.D.2 to Exh. D.5.
4. After recording evidence, the learned trial Court decided Issues Nos.2, 4, 6 and 7 against the plaintiff while Issues Nos.1,3 and 5 were decided against the defendant and vide his judgment and decree dated 12-2-1995 the suit was dismissed.
5. Aggrieved of the impugned judgment and decree, the respondent/ plaintiff filed an appeal which was accepted by the learned District, Judge, Sargodha, vide his judgment and decree dated 14-3-1996. The learned Court of appeal disagreed with the finding of the learned Civil Judge that it was a suit for partial preemption. He also set aside the findings of the learned trial Court on Issues Nos.6 and 7. Issue No,2 which related to the making of legal demands/Talbs was also decided by the learned Court of appeal in favour of the plaintiff and against the defendant. In consequence the judgment and decree of the learned Civil Judge was set aside by the learned District Judge and the suit for possession through pre-emption filed by the plaintiff was decreed in his favour on 14-3-1996.
6. Aggrieved of the said impugned judgment of the learned Court of appeal, the petitioners have filed this revision petition. The main points agitated during the appeal were the following:--
(1) whether the petitioner has a superior right of pre-emption?
(2) whether the suit is for partial preemption?
(3) whether the plaintiff made the requisite Talbs?
(4) whether the plaintiff participated in the sale transaction and had refused to purchase the suit- land and had thus waived his right of preemption?
7. First of all we take up the question of partial pre-emption. The learned counsel for the petitioner has argued that the learned Court of appeal has wrongly held that the suit was not for partial preemption. He has argued that the learned trial Court in its judgment had held that the respondent had omitted to claim the land covered under Khatuni Nos.370 and 371 and that the respondent /plaintiff while appearing as P.W.3 had claimed that he had filed the suit for possession of Killas Nos.1, 2 (half), 3, 8 and 24 of Square No,279 in Khata No,160. He has submitted that the said land was in separate possession of the vendor on account of private partition for the last 8/10 years and he had not claimed any other land. Similarly P.W.2 Shah Muhammad stated that he had seen the land sold by the vendor and that it was from Square No,279, comprising of Killas Nos.1, 2 (halt), 3, 8 and 24 and this land was purchased by the vendor about 15/16, years back and this was the land which had been sold by the vendor. He has argued that the claim of the plaintiff as set out in the plaint and supported by evidence is for the pre-emption of land which had been sold by the vendor vide Mutation No,1098 dated 21-1-1993 (Exh.P/15) and thus the suit was not for substitution of sale effected by the vendor vide Exh.P.15. He has thus vehemently argued that the suit was for partial pre-emption and hence was liable to be dismissed and was rightly dismissed by the learned trial Court. He has argued that the judgment and decree passed by the learned District Judge, Sargodha, is the result of misreading and non-reading of evidence and being erroneous is liable to be set aside.
8. On the other hand, the learned counsel for the respondent has argued that the petitioners/defendants did not raise any objection in the written statement that the suit was for partial pre-emption. He has pointed out that from the head-note of the plaint and from the contents of para.No,1 of the plaint, it is quite clear that the respondent/plaintiff had sought to pre- empt the entire 40-3/4 Kanals of land which had been sold by Muhammad Sarfraz, the vendor, to the defendants/petitioners vide Mutation No,1098 attested on 21-1-1993 and therefore there was no ambiguity in this regard. He has argued that a layman is not presumed to remember the Khatuni numbers/Khasra numbers and even if in his statement the plaintiff or any of his witnesses had failed to mention the exact Khatuni numbers, it will not make any difference. He has also argued that in this respect, during the pendency of this appeal, the respondent had filed an application under Order VI, rule 17 read with section 151 C.P.C. (Crl. Misc. No,641/C/02) and wherein it had been prayed that the respondent/plaintiff be allowed to incorporate in the plaint Khatuni numbers 370 to 374 instead of only Khatuni numbers 372 to 374 in the plaint. It may be mentioned here that at the time of arguments on this appeal the learned counsel for the petitioners accepted notice of the C.M and stated that he is prepared to address arguments on the C.M although he had no prior notice of the same. He has argued that during the pendency of the suit before the learned Civil Judge and thereafter during the pendency of appeal before the learned Court of appeal, the respondent/plaintiff had not bothered to file any such application for amendment and hence the same is clearly belated and that the omission of the respondent/plaintiff to mention correct Khatuni numbers and his omission to claim the entire land situated in Khatuni numbers 370 to 374 clearly amounts to partial pre-emption and hence the suit had been rightly dismissed by the learned Civil Judge as being a suit for partial pre-emption and that there is no lawful justification for allowing the amendment at the revisional stage.
9. It is a clear position of law that amendment in pleadings can be allowed at any stage. We can infer the intention of pre-emptor from the contents of the plaint and from which it clearly appears that he intended to pre-empt the entire 40-3/4 Kanals of land which had been sold to Allah Yar, etc. Defendants by the vendor through Mutation No,1098 attested on 21-1-1993. The Khatuni numbers were mentioned in the head note of the plaint as 372 to 374. In his statement as P.W.1 as well the plaintiff had mentioned the number of Khatuni numbers as 372 to 374 instead of 370 to
374. The same was clearly an omission. I do agree with the learned counsel for the respondents that a layman is not expected to remember the exact Khasra numbers or Khatuni numbers. A perusal of the plaint clearly indicates that the plaintiff clearly intended to pre-empt the whole of land which had been sold by the vendor to the vendee. Omission of some Khatuni numbers from the title of plaint was clearly a clerical mistake. Hence in the light of the authorities reported as (1)
Wazir Muhammad and others v. Abdul Aziz and others (1982 SCMR 189) and Sardar Ali v. Mukhtar Begum (PLD 1989 Lahore 142), the suit can not be considered as one for partial pre-emption. It may also be mentioned here that in the written statement C the petitioners did not raise any objection to that effect nor there had been framed any issue to that effect but the learned Civil Judge discussed that aspect of the matter under Issue No,7 and for which there was no lawful justification.
Since the finding of the learned trial Court on that basis was erroneous, the same had been rightly set aside by the learned Court of appeal and hence the finding of the learned Court of appeal on this point is affirmed.
10. Since the request of the respondent made through C.M. No,461-C-02 for the grant of permission to incorporate correct Khatuni numbers is genuine, the C.M is accepted, the requisite permission is granted and it, is directed that in the head note of the plaint, Khatuni numbers 370 to 374 shall be deemed to have been incorporated instead of 372 to 374.
11. The next question to be taken is as to whether the plaintiff had made the requisite Talbs. A already mentioned above, the plaintiff appeared in the witness-box as P.W.1 and stated that he had come to know about the sale in question on 31-1-1993 when he was sitting at his Dera and when he came to know about the same, he announced his intention to file a suit for pre-emption.
Then he took along Muhammad Bakhsh and Shah Muhammad and went to the defendants and asked' them to transfer the suit-land in his favour or otherwise he will file a suit for preemption. On 3-2-1993 he along with Muhammad Bakhsh, Shah Muhammad and Muhammad Khan went to Sargodha where he got prepared the notices which were thumb marked by him and were signed by the witnesses and he sent those five notices to the defendants. He produced copies thereof in this evidence as Exh.P.1 to P.5 and also the postal receipts as Exh.P.7 to Exh.P.10. From the other side Muhammad Zulfiqar who was one of the defendants appeared as D. W.1 and stated that they had not received any notice signed by the plaintiff. Anyhow from the evidence produced by the plaintiff it stands clearly proved that he had made the requisite Talbs and hence the finding of the learned Court of appeal on this issue is clearly in order.
12. Now we come to the point as to whether the plaintiff had waived his right of pre-emption, having participated in the sale/purchase transaction and having refused to purchase the suit- land. In order to prove 'waiver' and which clearly means intentional relinquishment of one's :right, the defendants were to prove that he had actually done so. In this case, the vendor i.e, Muhammad Sarfraz who appeared in the witness-box as D.W.2 stated that he had suggested to the plaintiff to purchase E the suit-land, otherwise he would sell it to someone else. There is no corroboration of his statement on the said point. There is no claim that the vendor had sent any notice to the plaintiff in that respect. The respondent/ plaintiff has denied having participated in the transaction of sale or having met the vendor. It is not understandable as to why the respondent/plaintiff could have refused to purchase the land at that stage and would have thereafter filed a suit for pre- emption. Under the circumstances, there is hardly any convincing evidence on record to establish that the plaintiff had actually waived his right of pre-emption. The issue was not proved, and hence the learned Court of appeal had rightly reversed the finding of the learned trial Court on the said issue.
13. Lastly, we come to the question of superior of pre-emption of the respondent/ plaintiff. It may be mentioned here that Muhammad Zulfiqar as D. W.1 stated in the course of cross-examination that when they had purchased this land it was being cultivated by Yasin son of Chiragh, who is Hamzulf of the plaintiff but was a tenant under them. He also stated that they had purchased a share in the suit-land and not specific numbers. He admitted that the plaintiff was a Khatadar but claimed that the defendants owned more land than him (in the same Khata). In the course of cross- criminal cases is not a ground for cancellation of bail before arrest as the prosecution story for their involvement in the present case has become doubtful. Moreover, nothing is to be recovered from the respondents, who have been alleged accused of abetment at belated stage. The motive is always considered to be double edged weapon and if the accused had motive for commission of the occurrence due to political rivalry, the same can also be a reason for their false implication in the case. Even otherwise, the liberty of the citizens cannot be curtailed merely on bald allegations.
Moreover, the criteria for cancellation of bail is entirely different than that of grant of bail and it is not case of the petitioner that the respondents have misused the concession of bail.
14. For the foregoing reasons, this application being devoid of any merits is dismissed in limine.