The respondent had purchased 195 kanals of land from one Fateh Muhammad through a registered deed dated 25th June, 1977, for ostensible price of Rs. 1,25,000 of which Rs. 40,000 was paid in cash and Rs. 85,000 was paid through a Bank-cheque.
2. The petitioner instituted a suit for possession of the suit-land through pre-emption, against the respondent vendee inter alia on the ground that he possessed a superior right of preemption. He further alleged that payment of Rs. 8j,000 through cheque was fictitious, which was shown only to defeat the right of pre-emption and that the genuinely paid price of the suit-land was only Rs., 40,000.
3. On the basis of the evidence adduced, the learned trial Judge decreed the suit on 9th December, 1979, in favour of the petitioner, on the ground of superior right, for pre-emption money of Rs, 1,30,625 including sundry charges Rs. 5,625. The petitioner preferred appeal against the aforesaid judgment in the Court of District Judge on the question of price of the suit-land contending that only Rs. 90,000 were actually paid and the same was the market value of the land in suit. The learned District Judge dismissed the appeal and confirmed the order of the trial Court on the ground that petitioner's stand was not consistent. In the plaint he had alleged that the suit-land was sold for Rs. 40,000 only and, therefore, the suit should be decreed for Rs. 40,000 but in appeal he asked for reduction of the price to Rs. 90,000 as the suit-land according to market rate was worth it.
4, Being aggrieved of the findings of the Courts below, the petitioner filed regular second appeal in this Court.
5. At the very outset, learned counsel appearing on behalf of the respondent-defendant raised a preliminary objection that the regular second appeal was not competent. According to him, regular second appeal was filed on 1st July, 1980, wherein an amount of Rs. 38,200 was fixed as its jurisdictional value. Section 102 of the Code of Civil Procedure was amended through section 12 of Ordinance (X of 1980), published in Gazette notification on 26th March, 1980, which provide that no second appeal would lie where the value of the subject-matter of the suit was less than Rs. 50,000 as is, in the instant case. Learned counsel for the appellants conceded the objection and requested that the regular second appeal may be treated as revision petition. Granting the prayer, I proceed to dispose it of as revision petition.
6. The only prayer of the petitioners is that pre-emption money may be reduced from Rs. 1,30,625 to Rs. 90,000 as the suit-land could not in the open market fetch more price than Rs. 90,000. While exercising revisional jurisdiction, I am afraid, this Court cannot under-- take a factual inquiry on the point in issue. I find that the learned District Judge was right in saying that the petitioners cannot ask for the reduction of pre-emption money to Rs. 90,000 as it was not so pleaded by them.
Contrarily, they averred in the plaint that the suit-1 land was sold for Rs. 40,000 and the same amount was actually paid. It is a well established proposition of law that a party cannot prove case different from what has been pleaded. In this respect reference may be made to Messrs Chaudhary and Brothers Ltd., etc. v. The Jam Central Co-operative Bank Ltd., Jaranwala (1968 SCMR 804) and Yousaf v. Hashim Bho and Company (PLD 1966 (W. P.) Kar. 456)
7. There is no evidence on the record from which it could be inferred that the price as mentioned in the sale-deed Exh. D. 1 was not paid by the respondent-defendant, instead, the endorsement by the Registrar, on Exh. D. 1 supports the respondent-defendant. Again, refund of Rs. 85,000 the amount of bank cheque, to the respondent defendant, as alleged by the petitioners has not been legally proved,
8. Learned counsel for the petitioners simply referred to Muhammad Jafar Ali v. Muhammad Abdul Majid (PLD 1968 Dacca 201), Khadim Hussain v. Gulab (PLD 1954 Lah. 471), Mst. Fatima v. Khuda Bux (PLD 1959 Lah. 826), Imam All" v. Ahmad Shah (PLD 1977 Kar. 688) but did not show as to how these authorities were applicable to the matter in hand.
9.I am of the view that the judgments of the two Courts below do not suffer from misreading or non-reading of evidence. Learned counsel for the petitioners has, not pointed out any illegality or material irregularity in the proceedings taken before the Courts below.
10. For what has been stated above, the revision petition has no merit and is hereby dismissed with costs throughout.