This appeal has been directed against the judgment and decree of District Judge Mirpur dated 31.01.2008, through which an appeal filed by the present appellant was dismissed.
2. Brief facts of the case are that the present appellant/plaintiff filed a suit for recovery of possession on the basis of right of prior purchase regarding the land measuring 2 Kanals and 3 Marlas bearing Survey Nos, 1793 & 1794 Khata Nos, 404/376 & 405/377 Khewat No, 7979 situated at village Bhaliala Tehsil and District Mirpur against the present respondents in the Court of Civil Judge Mirpur. It was stated in the suit that Defendant No, 2 Abdul Rasheed transferred the suit land in favour of Defendant No, 1 Qurban Hussain against a price of Rs, 30,000/- vide sale-deed dated 29.03.2002. The sale money mentioned in the deed was alleged to be received at home. The plaintiff stated that he was co-sharer and also sharer in the Khewat and Khata of the disputed land and the land owned by the plaintiff is contiguous to the suit land. The vender has transferred the suit land without intimating the plaintiff. It was further stated that the appellant/plaintiff has prior right of purchase as compared to the vendee Qurban Hussain. It was prayed to issue a decree in favour of the appellant/plaintiff.
3. Written statement was submitted by the Respondent/ Defendant No, 1 Qurban Hussain, while ex- parte proceedings were ordered against the Respondent/Defendant No, 2 Abdul Rasheed. It was stated in the written statement that the present appellant/plaintiff has got no cause of action. The suit is hit by the doctrine of partial preemption. The sale-deed was executed on 29.03.2002 but the appellant/plaintiff purchased the suit land in the year 1981 and constructed a house over the said land, so the suit has not been filed within prescribed period of limitation. It was prayed to dismiss the suit.
4. Issues were framed in accordance with the version taken by the parties and both the parties were allowed to produce evidence on their behalf. After hearing the parties, the learned Civil Judge Mirpur dismissed the suit with the reason that the suit was hit by the doctring of partial pre- emption.
5. Arguments were advanced by the learned counsel for the parties. Sardar Muhammad Azam Khan Advocate, the learned counsel for the appellant argued that both the subordinate Courts have no decided the case in accordance with the evidence, facts and provisions o law. The suit is not hit by the doctrine of partial pre-emption. The learned Civil Judge Mirpur has recorded his findings issue-wise but the learned District Judge Mirpur has not recorded his findings issue-wise The learned counsel requested to accept the appeal and to remand the matter to the learned District Judge Mirpur for recording his findings of all the issues. The learned counsel referred the following precedents it support of his arguments.
PLD 1969 SC 617 PLD 1974 AJ&K 26 PLD 1976 Lah. 1233 PLD 1981 SC (AJ&K) 43 PLD 1992 SC (AJ&K) 7 PLD 1993 SC (AJ&K) 168 PLD 2007 SC (AJ&K) 20
6. While controverting the learned counsel for the appellant Ch. Muhammad Akhtar Advocate, the learned counsel for respondent Qurban Hussain contended that both the subordina Courts have recorded their findings concurrently. The suit is hit by the doctrine of partial pre-emption, It is an admitted principle of law that a pre-emptor cannot pick and choose while exercising his right of preemption. The learned counsel requested to dismiss the appeal and referred the following precedents in support of his arguments.
PLD 1972 Pesh. 115 PLD 1973 SC 443
7. After hearing the arguments, I have gone through the record available and perused the precedents referred by the learned counsel for the parties minutely. The present appellant/plaintiff has taken this version that the suit is not hit by the doctrine of partial pre-emption and the Courts below have not recorded their findings in accordance with the facts and provisions of law The appellant/plaintiff took this version as well that he is a co-sharer and the land owned by him is adjacent to the suit land, so he has got a right of prior purchase as compared to the vendee Qurban Hussain. It was argued that the subordinate Courts have not properly appreciated the evidence of the appellant/plaintiff. The learned counsel for the appellant also contended that if any description of the property is left inadvertently due to mistake or any omission has been made, the suit cannot be dismissed on the ground of partial preemption.
8. The record reveals that it has been mentioned in the sale-deed expressly by the vender that he is owner in possession of the disputed land, which was sold by his grand-father in the year 1981 and the possession of the said land was handed over to the vendee who constructed a house on Survey No, 1794. It was also mentioned that only completion and execution of the sale-deed was left to be made. The existence of trees over the disputed land was also mentioned in the sale-deed.
The vendee/respondent Qurban Hussain took this version through his written statement that recovery of house and trees has not been claimed through the suit, A report of Sub-Divisional Officer of PWD Department Exh,DAA has been placed on record which shows the existence of a house and trees over the disputed land. The said officer estimated the cost of house as Rs, 11,58,954/-. So, the version of the appellant/plaintiff that due to inadvertence, the same could not be mentioned has no substance at all. The record reveals that the said omission was made deliberately and purposely. Survey No, 1794 on which the house has been constructed pertains to the disputed land along with another Survey No, 1793. It was enjoined upon the appellant/plaintiff to mention all the rights endorsed in the sale-deed, in his suit. It is an admitted principle of law that a vendee must take over the whole bargain or forego his claim altogether and he cannot be permitted to pick and choose. This principle has been laid down in the precedent PLD 1972 Pesh.
115. It was further held. through the said precedent that if in a suit for pre-emption, the plaintiff intentionally sues for less land than is covered by the sale, he loses the right of preemption. The rule of partial pre-emption is so stringent that its nonobservance is always fatal for the suit. Such partial pre-emption cannot be allowed at all.
9. Moreover, it is an admitted fact that the suit land was purchased by the respondent/vendee in the year 1981 and a house was constructed over the said land after purchase of the land. This fact was also proved by the report of the commission and statement of author of the report. All the witnesses produced by the parties have admitted the existence of a house and trees over the disputed land. It is also an admitted fact that the sale-deed was executed on 29.03.2002 and the suit was filed on 06.05.2002, within prescribed period of limitation.
In the light of what has been stated above, the suit filed by the present appellant/plaintiff was not maintainable because the same was hit by the doctrine of partial pre-emption. No need is required to make any opinion on the remaining issues. Both the subordinate Courts have recorded their findings, which are based on sound and cogent reasons. Although, the learned District Judge Mirpur has not recorded his findings issue-wise, but the learned Judge has made his opinion on the important issue in detail. The learned District Judge Mirpur, having in view the circumstances of the present case was not bound to record his opinion on all the issues. So, no indulgence is required into the findings recorded by both the subordinate Courts. The facts of the precedents referred by the learned counsel for the appellant have no conformity with the facts of the present case, while the precedents referred by the learned counsel for the respondent are in support of the version taken by the respondent. The instant appeal stands dismissed with no order as to the costs.