SHAFI-UR-REHMANJ.-The petitioners are the defendant-vendees who seek leave to appeal against the judgment of the Lahore High Court dated 11-1-1981 whereby the appeal of the petitioners against the judgment of the first appellate Authority was dismissed with costs throughout.
2. By Mutation No. 1153 attested on 21-12-1967 Suleman sold land measuring 174 kanals 12 marlas ostensibly for a sum of Rs. 50,000 in favour of the petitioners. The petitioners claimed a superior right of pre-emption and claimed possession on payment of Rs. 24,200. The suit was contested on the ground that the plaintiffs had no superior right of pre-emption ; that the land being evacuee property it was not subject to preemption ; that the plaintiffs bad knowledge of the transaction and that the plaint had not been properly stamped and Rs. 50,000 was fixed and paid for the property.
Issues were framed to reflect these objections.
3. The trial Court after examining evidence found the claim of the plaintiffs superior. The plaintiffs undertook to pay the price of Rs. 50,000 and all the issues framed were decided in their favour.
Nevertheless, while considering the question of relief to be granted to the plaintiffs the trial Court held that in the title of the plaint five Khasra Number were not mentioned and though the area of the property to be pre-empted and the particulars of the sale were correct the omission was taken to be a case of partial pre-emption and the plaintiffs were found not entitled to the relief.
Additionally, outside the objections taken by the petitioners and the issues framed, the trial Court held that it was a case of violation of Martial Law Regulation No. 64 Paragraph 25 (3) as the vendor was shown to be owner of 180 kanals 11 marlas of which he purported to sell only 174 kanals 12 marlas. The suit was dismissed.
4. An appeal was preferred and upholding the superior right of the plaintiffs and overruling the two objections made the basis for denying the relief to the plaintiffs the District Judge allowed the appeal and decreed the suit directing them to deposit Rs. 50,000.
5. A second appeal was taken to the High Court by the petitioners which also failed. The reason which prevailed with the High Court was also that the objections which had been made the basis for denying the relief to the plaintiffs were factual, had not been raised in the written statement and a snap decision could not be given on them.
6. The learned counsel for the petitioners contends that where the sale itself was void there was no question of its pre-emption. It is also said that as there was omission to mention part of the property which was sought to be pre-empted even without an objection to that effect the suit could be dismissed. The superior right of pre-emption has also been denied.
7. The learned counsel for the petitioners has filed a copy of the mutation which was the subject- matter of sale. It mentions at two placesand one such occasion happened to be before the revenue officer in a public gathering, that by that mutation he was transferring his entire interest This pointed recital by the revenue officer had a meaning and a context., Every authority sanctioning alienations has to satisfy itself that what it is sanctifying is not violative of law or is void.
In order to ensure the Martial Law Regulation No. 64 is not violated and having access to the revenue record from which such a violation could be checked, these entries unmistakably showed that there was no violation. The petitioners did not plead otherwise. They did not prove it either. The trial Court was manifestly in error in giving a decision on such a vital question from a document which had incidentally come on the record. Be that as it may, with the recital that the vendor was selling his entire holding the very question whether he in spite of such a recital retained something for some time required an inquiry and a determination. Even up to the stage of second appeal the petitioners never sought amendment with a view to make this factual ground a basis for their claim in order to challenge it frontally. In the absence of such a ground in the pleadings in the absence of their formally making it the plank of the attack they cannot be permitted to get a decision on such a question.
8. The sale mutation which was sought to be pre-empted identified the extent of .The property to be pre-empted, correctly mentioned the Mutation Number and price. The omission of certain Khasra Numbers from the title) of the plaint has rightly been treated as clerical and inconsequential.
9. The superiority of the plaintiffs' claim is disputed on the assumptions that the sale was divisible, distinct and could be protected in the case of one of vendees. This is said on the ground that out of 29 shares of Suleman sold 13 were to be shared equally by Wazir Muhammad and Nazir while, I were of Ghularn Rasool, the sale consideration being 50,000. Such a sale was not divisible. The finding of fact concurrently recorded by all the Court. Does not require interference.
10. We find no merit in the petition and the leave to appeal is refused.