Ch. Muhammad Ibrahim Zia, C.J.- The captioned appeal by leave of the Court has arisen out of the judgment of the High Court dated 09.12.2015, whereby the appeal filed by the appellants, herein, has been dismissed.
2. The relevant and necessary facts of the case as alleged are that the land comprising survey No.921, Khewat No.11, Khata No.57/51 measuring 20 kanal, situated at village Dhoranwala, Tehsil Barnala, District Bhimber was allotted to the father of proforma respondent, herein, who sold the same to the father of appellants, herein, in lieu of Rs.5,00,000/- through sale-deed dated 11.05.2006. An amount of Rs.40,300/- was also deposited in the Government treasury as costs of NOC. Respondent No.1, herein, brought a suit for possession on the basis of right of prior purchase against Bashir Ahmed and Hakam Ali (predecessor-in-interest of appellants, herein) in the Court of Civil Judge, Bhimber on 09.09.2006. It was stated that the plaintiff is co-sharer in the property and his land is also adjacent to the land sold, whereas, no such rights are available to the vendee, hence, he has a preferential right to purchase the suit land vis--vis to the vendee. Before execution of sale-deed no notice, as required under law, was served on the plaintiff. The suit was contested by the vendee by filing written statement wherein it was claimed that the plaintiff has got no cause of action. The suit is time barred. After necessary proceedings, the learned trial Court vide judgment dated 29.01.2008 granted the decree of pre-emption in favour of the plaintiff subject to condition of payment of Rs.5,00,000/- as sale consideration, Rs.40,300/- as cost of NOC and Rs.34,395 as expenses incurred on sale-deed. Feeling aggrieved, Hakam Ali, predecessor in interest of the appellants, herein, preferred an appeal before the learned District Judge, Bhimber on 15.02.2008.
A cross appeal was also filed by Fateh Muhammad in which it was claimed that the amount of Rs.40,300/- which was paid for obtaining NOC, was illegally included in the price of the land. After hearing the learned counsel for the parties, the learned District Judge, vide judgment and decree dated 21.03.2009 accepted the appeal filed by Fateh Muhammad and excluded Rs.40,300/- from the decree and dismissed the appeal filed by Hakam Ali. The appellants filed second appeal before the High Court, which has been dismissed through the impugned judgment, hence, this appeal by leave of the Court.
3. Along with the memo of appeal before this Court the appellants have also filed an application for amendment of written statement filed on behalf of defendant-appellants.
4. Mr. Zafar Hussain Mirza, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the respondent has wrongly claimed that he is a co-sharer in the sold property. According to the facts, the land on the basis of which he claims that he is a co-sharer is not in his ownership rather it is an evacuee property which has already been transferred to evacuee. This fact was not in the knowledge of the appellants, thus, same could not be pleaded in the written statement. He submitted that the application for seeking permission for amendment in the written statement has been filed. The same may kindly be accepted and prayed amendment be allowed. On merits, he submitted that the plaintiff-respondent is not co-sharer in the property. According to the principle of law enunciated by the superior Courts, a person may be a co-sharer in the undivided property but once the property is divided no one can be treated as co-sharer. Although, the plaintiff- respondent can claim right of pre-emption being Shafi-Khalit but no such claim has been made by him, thus, the Courts below have fell in error of law while granting the decree. He further submitted that according to section 18-A of the Pakistan Administration of Evacuee Property Act, 1957 in case of sale of evacuee property the purchaser has to pay the compensation to the Custodian. In this case, this statutory provision has also been violated as the pre-emptor has failed to deposit the cost as required under law. The judgments of Courts below are against law, hence, by accepting this appeal the same be set-aside. He referred to the cases reported as Shah Hussain vs. Abdullah Khan & others [PLD 1967 Pesh. 284], Mardan Shah vs. Shah Nazar Khan [PLD 1970 SC 245], Ghulam Begum & others vs. Khan Muhammad Khan and others [PLD 1984 SC(AJ&K) 38], Government of NWFP vs. Malik Said Kamal Shah [PLD 1986 SC 386].
5. Conversely, Sheikh Masood Iqbal, Advocate, the learned counsel for the respondent forcefully defended the impugned judgment and submitted that the arguments advanced on behalf of the appellants are totally against the pleadings and principle of administration of justice. So far as the application for amendment is concerned the parties were provided ample opportunity and after completion of the required proceedings the trial Court finally decided the suit. All the Courts below have recorded the findings of facts on the basis of proper appreciation of the evidence. Moreover, the right of prior purchase of the plaintiff-respondent has been admitted not only in the pleadings but also in the Court statement of defendant-vendee. So far as the question of evacuee property is concerned, it is also admitted fact and in this regard necessary averments are part of the pleadings and the evidence has already been produced. Even otherwise, this fact is proved from the oral as well as documentary evidence, thus, the matter which has been finalized now cannot be reopened in the garb of amendment application. He further argued that the prayed amendment is totally contradictory to the previous pleadings and already produced evidence. Such like amendment cannot be allowed according to the settled principle of law. This appeal has no substance and is liable to be dismissed. He placed reliance on the cases reported as Hassan Muhammad vs. Muhammad Din [1997 SCR 292] and Munshi Khan and others vs. Muhammad Sadiq [2014 SCR 1012].
6. We have considered the arguments of the learned counsel for the parties and examined the record made available. First of all we would like to attend the application filed by the appellants for amendment of the written statement. According to the stated facts, the suit was filed by the plaintiff-respondent on 09.09.2006. The defendant-vendee, Hakam Ali (predecessor-in-interest of the appellants) filed written statement, the perusal of which shows that he has not expressly denied the right of pre-emption rather only an evasive denial has been made which according to facts of this case amounts to admission. Leaving aside these aspects, defendant- vendee himself appeared as a witness and got his statement recorded on 08.12.2007 in which he clearly admitted that:- {{URDU TEXT}} According to the celebrated principle of law, admitted facts need not to be proved. The amendment in the pleadings which is contradictory and changes the complexion cannot be allowed. In this case, according to the pleadings, produced evidence and statement of defendant-vendee the fact that the plaintiff is co-sharer in the property is admitted. Now, after adverse decision recorded by the three Courts below, the contradictory prayer of amendment cannot be allowed otherwise it will frustrate the very purpose of administration of justice and there will be no end to litigation. Therefore, the application for amendment according to its nature is not maintainable, the same stands rejected.
7. So far as the merits of the case are concerned, as it has already been observed that the right of pre-emption as claimed by the plaintiff-respondent is admitted fact and he being co-sharer in the corpus of the sold land has got preferential right to purchase the land. All the Courts below after appreciation of the evidence brought on the record have recorded unanimous findings. The appellants have failed to point out any legal ground for interference in such findings.
8. The argument of the learned counsel for the appellants on the strength of the statutory provisions of section 18-A of the Pakistan Administration of Evacuee Property Act, 1957 appears to have relevance in the light of findings recorded by the trial Court. The claimed amount of Rs.40,300/- as cost of NOC is included in the decree in addition to sale consideration and expenses incurred on sale-deed, however, the same has been excluded by the first appellate Court. This point has also been raised in second appeal by the appellants and forcefully argued but remained unattended by the learned High Court in the impugned judgment. The first appellate Court while resolving this proposition has held that according to the receipt (Exh.DA) the cost has been deposited by the vendor on 09.05.2006, whereas, the sale-deed has been registered on 11.05.2006, hence, the vendee cannot claim the same. In our opinion the conclusion drawn by the first appellate Court is incorrect. According to the receipt (Exh. DA) an amount of Rs.40,300/- was deposited. In the receipt it has been only mentioned that the amount has been deposited in relation to NOC of sale of the land between Bashir Ahmed, vendor, and Hakim Ali, vendee. It does not speak that the amount has been deposited by the vendor. According to the statutory provisions of sub-section (2) of section 18-A of the Pakistan Administration of Evacuee Property Act, 1957 in case of sale of evacuee property the proprietary rights of which have been granted to the allottee without cost, the transferee (vendee) has to pay the Custodian the prescribed cost of the property. Thus, according to the statutory provisions it is held that the cost of NOC has been paid by the vendee (purchaser) and he is entitled to claim such amount. In this state of affairs, while reversing the findings of first appellate Court the findings of the trial Court to this extent are restored. Consequently, the amount of Rs.40,300/- paid by the appellants for NOC regarding sale of the evacuee property is included in the decree.
9. The other arguments of the learned counsel for the appellants are not consistent with the record and law. As it has already been observed that the defendant-vendee in the pleadings and Court statement has clearly admitted the plaintiff's right of pre-emption being co-sharer, thus, the arguments of counsel for the appellants are against the pleadings of the parties and evidence brought on record which cannot be accepted. Therefore, all other arguments being devoid of force stand repelled.
10. As it has been concluded that the pre-emption right of the plaintiff being co-sharer is an admitted fact, hence, the stance taken in argument of the counsel for the appellants and in this context the case law referred to, has no nexus, hence, need not to be discussed in detail being irrelevant.
11. The perusal of the record reveals that the plaintiff-pre-emptor deposited Rs.1,00,000/- as 1/5th of the amount of consideration on 06.02.2007, whereas, the remaining decretal amount has also been deposited in the trial Court on 27.02.2008 including Rs.40,300/-, cost paid to the Custodian. Thus, the decree has attained finality and the vendee-appellants have to deliver the possession of the property to pre-emptor-decree holder.
This appeal stands partly accepted in the above terms and stands disposed of with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.