1. ' This is a second appeal by the plaintiff-pre-emptor and another plaintiff against the decrees of the Courts below whereby the suit was dismissed for its being hit by the doctrine of partial pre- emption.
2. ' This is the only point mooted before this Court and so we need not reproduce other unnecessary matter which is in a way meaningless. Mst. Karim Jan appellant is not a pre-emptor and her case is not pleaded by the counsel for the appellants and so to her extent appeal shall stand dismissed.
3. ' The land in suit was sold for a consideration of Rs, 10,000 which amount the plaintiff-pre-emptor is prepared to pay to the vendee in case he succeeds in obtaining a decree for pre-emption as prayed.
4. ' The plea of the plaintiff-pre-emptor was rejected by both the Courts below that the land in suit was sold without a consideration. It was with the consideration that the land in suit was sold by the vendors and this is also the defence of the vendee. The right of prior purchase stands not challenged which was found in favour of the pre-emptor- appellant. The land in suit was sold by the sisters of the plaintiff-pre-emptor from the joint property owned by all of them and so the right of prior purchase vests in the plaintiff-pre-emptor as compared to Muhammad Hussain vendee.
5. The waiver of the right of prior purchase on the part of the pre-emptor could not be established by the vendee defendant.
6. After going through the record 1 find that no portion of land was omitted by the pre-emptor from being claimed. The entire land sold including the `Shamlat Deh' measuring 8 kanals and 1 marla was claimed by the plaintiff-pre-emptor. The survey number of the `Shamlat Deh' sold was included in the entire land sold but `Khewat' No, 62 could not be taken down in the plaint though area comprising the same was claimed. It was just a clerical mistake or omission by slip. For rectification of this mistake an application for amendment was moved in the Court below which was rejected and it was held that the suit was hit by the doctrine of partial pre-emption.
7. ' The contention of the learned counsel is that though a portion of land out of `Khewat' comprising No, 100/98 was sold yet other rights of `Shamlat Deh' which were sold by the vendors were not claimed and so the doctrine of partial pre-emption was rightly applied by the Courts below. There is no substance in this contention. The body of the sale-deed shows that after giving or mentioning the land sold therein, it was further written by its scribe to elaborate the matter sold to the effect that entire rights of ownership and rights of `Shamlat Deh' in the village were sold. Actually, any of the rights in `Shamlat Deh' sold as also ownership rights, come out of either kind of land sold. No other kind of `Shamlat Deh' could be located or identified by the learned counsel for the respondents which could have borne a separate survey number. The style of writing and giving description of the property sold in the sale-deed thereof clearly indicates that rights of ownership and ancillary rights of `Shamlat Deh' mentioned in the sale-deed ensue the lands sold and nothing beyond them. There is no kind of other `Shamlat Deh' bearing a separate entity so that it could be held that a portion of any `Shamlat Deh' sold was left out of pre-emption.
8. 'The omission of mentioning the Khawat number in the plaint does not mean that portion of land sold from this `Khewat' was also omitted whereas it was never omitted. The entire land sold including the `Shamlat Deh' measured 8 kanals and 1 marla and it was all claimed. Mere non- mentionin of a `Khewat' number though the land comprising it, stands claimed, do not spell out that this portion of land sold was omitted from being claimed. It was very well physically claimed.
9. The non-mentioning of 'Khe war No, 6 was just a clerical mistake or omission which ought to have been rectified by the Court below as was prayed by the plaintiff-pre-emptor. An application for rectification of the mistake was also moved before this Court which was allowed and the supply of omission was made in the open Court.
10. ' That being so, this appeal is accepted with costs and a decree based on right of prior purchase is passed in favour of Muhammad Siddique appellant on payment of Rs, 10,000 plus the cost of sale deed to be calculated by the Office of this Court which amount, the pre-emptor shall be depositing in the Court on or before 31-10-1982 ; in default of which the suit shall stand dismissed with costs.