' RAUF AHMAD SHEIKH, J.---The petitioner, who died during the pendency of this civil revision and is now represented through his legal representatives, has assailed the judgment and decree dated 13-5-2003 passed by learned Additional District Judge, Mandi Baha-udDin, whereby the appeal preferred by him against judgment and decree dated 13-12-2000 of the learned Civil Judge dismissing his suit for possession through pre-emption was dismissed.
2. The plaintiff/petitioner had filed a suit for possession through pre-emption on 8-7-1985 in respect of land measuring 47 kanals 8 marlas, fully described in the head-note of the plaint, on payment of Rs,51,900 or the price fixed by the court. It was stated that the disputed land was owned by Khadim Hussain, who is real brother of the plaintiff. He alienated this land for a sum of Rs,51,900 to the defendants/ respondents and a fictitious price of Rs,2,25,000 was entered in the sale-deed dated 28-5-1984 in order to thwart the right of pre-emption. He asserted that he is real brother of the vendor, co-sharer in the Khata', co-sharer in 'Patti' and owner of land in the village whereas the defendants/ respondents do not possess any such qualification so he has superior right of pre- emption.
3. The defendants/respondents contended that they purchased the land for a sum of Rs,2,25,000 in good faith and actually paid this amount. It was stated that the plaintiff/petitioner had the superior right of pre-emption but he had waived off the same as he was present at the time of the sale. The learned trial court framed the following issues:--
(1) Whether the plaint is affixed with proper court fee? OPD
(2) Whether the plaintiff is estopped by his conduct to file the present suit? OPD
(3) Whether the sale consideration amount embodied in the registered sale-deed was paid in fact? OPD
(4) If issue No,3 is proved otherwise then what was the actual amount paid and what was the market value at the time of disputed sale? OPP
(5) Whether the suit is bad for partial pre-emption? OPD
(6) In case the suit is decreed whether the defendant is entitled for payment of registration fee of sale-deed if so to what amount? OPD ' The suit was dismissed in view of the judgment of the august Supreme Court of Pakistan passed in Said Kamal-Shah's case (PLD 1986 SC 3'60). It was restored in view of the provisions of section 35 of the Punjab Pre-emption Act, 1991 and thereafter following additional issues were framed:-- (6-A) Whether the pre-emptor made Talb-e-Ishhad in presence of two truthful witnesses? OPD (6-B)Whether the plaintiff had got superior right of pre-emption being a co-sharer in the suit Khewat? OPP
4. After recording the evidence and hearing the arguments, the learned trial court dismissed the suit vide judgment and decree dated 13-12-2000. The petitioner challenged this judgment and decree before the learned District Judge but his appeal met the same fate as per impugned judgment and decree dated 13-5-2003.
5. The learned counsel for the petitioner has vehemently contended that in view of the admission made in the written statement, issue No,6-B did not arise and the respondents could not have resiled from the admission made in the written statement. It is urged that both the courts below have failed to appreciate this question in its true perspective and erred in holding that the petitioner does not possess superior right of preemption. In support of the contention raised, reliance is placed, on Muhammad Yagoob through Legal Heirs v. Feroze Khan and others (2003 SCMR 41), Secretary to Government (West Pakistan) Now N.-W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 SC 242) and Muhammad Rang and others v. Muhammad An and others (2004 SCMR 704).
6. Converting this contention, the learned counsel for the respondents has contended that the admission erroneously made against the facts does not have binding effect and cannot be made basis to non-suit a party. In support of the contention, raised reliance is placed on Qabil Shah and others v. Shaday (PLD 1972 Peshawar 144), Mst. Hameeda Begum and others v. Khadim Hussain and others (2001 MLD 427) and Ahmad Khan v. Rasul Shah and others (PLD 1975 SC 311
7. The written statement was filed on 29-9-1985. At the relevant time the Punjab Pre-emption Act, 1913, was in force and the legal heirs of the vendor had superior right of pre-emption. The petitioner had also contended that he was co-sharer in the `Khata' by annexing copy of `Jamabandi' for the year 1983-84 with the plaint. Subsequently the learned trial court summoned the Patwari of the Halqa and recorded his statement, who categorically stated that the copy of lamabandi' produced by the petitioner/plaintiff was not issued by him and was result of forgery. If the admission is procured through forgery, the party making the same is not bound by it. It is not clear that what action was taken against the petitioner/plaintiff on producing a forged document in the court but one thing is obvious that the admission was not made in good faith rather it was result of a forged document annexed with the plaint. The relationship with the vendor does not constitute the superior right of pre-emption under the Punjab Pre-emption Act, 1991 and the other ground mentioned in the plaint, in fact, did not exist and as such the so called admission could have not been used against the defendants/ respondents and they cannot be non-suited on the basis of the same.
8. The learned counsel for the petitioner has contended that though the petitioner is not a co- sharer in the `Khata' but possesses the superior right of pre-emption being `Shafi Khalit' as the source of irrigation of his land and the disputed land is the same and is also `Shafi Jar' as he is owner of the adjacent land. It is urged that though this contention was not raised in the pleadings but it was proved through reliable evidence i.e, copy of `Warabandi' (Exh.P.3) and copy of `Aks Shijra' (Exh.P.4). It is urged that it was not necessary to plead that he was 'Shaft Khalit' or `Shafi Jar' and the contention that he has superior right of pre-emption was sufficient and he could have proved all the grounds on the basis of which he has the superior right of pre-emption. In support of his contention, reliance is placed on Mst. Hayat Begum v. Faiz Ahmad and another (PLD 1986 (W.P.)
Lahore 581). No contention was raised in the plaint that the petitioner has superior right of pre- emption being `Shafi Khalit' or 'Shaft Jar'. No evidence can be led regarding the contention not specifically raised in the pleadings. Even otherwise the `Aks Shijra (Exh.P.4) or `Fard Warabandi'
(Exh.P.3) do not prove that the petitioner is a 'Shaft Khalit' or `Shafi Jar' because these documents do not prove the ownership or participation in the special rights to irrigation. In this respect reliance is placed on Muhammad Yousuf v. Manzoor Ahmad (2005 CLC 835).
9. It is contended that both the courts have committed material irregularity in dismissing the suit for non-mentioning of filing of the suit for `Zaroorat' and to avoid `Zarar' as section 6(2) of the Punjab Preemption Act, 1991, was declared to be repugnant to the Injunctions of Islam by the Hon'ble Supreme Court of Pakistan in Haji Rana Muhammad Shabbir Ahmad Khan's case (PLD 1994 SC 1). Under the above cited judgment the provisions of section 6(2) of the Act ibid ceased to have effect w.e.f, 31-12-1993. This suit was filed on 8-7-1985 so the non-mentioning of filing of the suit for 'Zaroorar' or for `Zarar' was sufficient to non-suit the petitioner/plaintiff on this ground also. In this respect, reliance is placed on the case-law reported as Ghulam Hussain and others v. Mushtaq Ahmad and others (PLD 1994 SC 870), Falak Sher v. Muhammad Mumtaz and 2 others (1992 MLD 1879), Muhammad Aslam v. Jamil Ahmed (2005 YLR 2347) and Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200).
10. For the reasons supra, there is no illegality or infirmity in the impugned judgments and decrees.
The revision petition is without merits and the same is hereby dismissed.