' This civil revision under section 115 of the Civil Procedure Code is directed against the judgment and decree of the first appellate Court, dated 3rd June, 1980 whereby on appeal by the respondents-pre-emptors, the judgment and decree of the trial Court, dated 10th April, 1976 was reversed and plaintiffs' suit decreed.
2. The brief faots of the case are that the respondents brought a suit for possession through pre- emption in respect of land which was witnessed by registered sale-deed, dated 29th April, 1975 for an ostensible consideration of Rs, 39,000. The particulars of the suit land were mentioned in para. 1 of the plaint. It was mentioned therein that the suit was in respect of 26 kanals as per Khewat Khatoni No, 164/440-441 comprising Khasra numbers mentioned in the plaint, which formed 1/6th share of the total area of 155 kanals 12 kanals as per register Haqdaran Zamin for the year 1970-71, situated in Mauza Chak Katal, Tehsil and District Gujrat. It was averred that this land had been sold together with share in tubewell and all other rights by Qurban Ali vendor through the afore- mentioned sale-deed. It was also mentioned that copy of the said registered sale-deed was attached whereas copy of the Jamabandi would be filed.
3. The trial Court framed as many as seven issues. Out of these, the material issue relevant for the disposal of this revision petition is issue No, 4 which was to the effect-"Whether the suit is for partial pre-emption". While dealing with this issue, the learned trial Court referred to the objection of the petitioner-defendant that the suit was for partial pre-emption because the plaintiff had not included in the plaint a share of shamilat and share in mahal chah which had been purchased by the defendant vide sale-deed, dated .29th April 1975 Exh. D-5. The trial Court also dealt with the two decisions which were cited before it at the bar, namely, Samar Qand and another v. Muhammad Yunis (1) and
(I) PLD 1972 Pesh, 115 ' Bahadur Shah and 2 others v. Sharaf and 9 others (1). The trial Court ultimately reached the conclusion that since the plaintiffs-respondents had not filed any application for amendment of the plaint so as to include the particulars of shamilat, etc., therefore, the suit was for partial preemption. He accordingly dismissed the suit.
4. The pre-emptors then went up in appeal which was disposed of by a learned Additional District Judge vide judgment, dated 3rd June, 1980 who reversed the judgment and decree of the trial Court and accepted the appeal. He dismissed the cross-objections filed by Allah Ditta vendee. The contention of the pre-emptors before the appellate Court was that as a matter of fact, no shamilat deh or mahal chah was sold by the vendor and the scribe of the sale-deed had mentioned in the conventional way regarding the same together with the lad and there was no proof on the record that any shamilat existed in the village and the vendor was possessed of its share or there existed any well the share of which was sold alongwith the suit land. In the alternative, it was contended that even if it was held that any share of shamilat, well or trees was also sold alongwith the suit land, then no damage was done as the plaintiffs had pre-empted the same as well, as was evident from the note given in the plaint under para.
7. The appellate Court on examining the plaint came to the conclusion that there indeed existed a note as claimed which was to-the effect that the plaintiffs' suit was for the entire property sold by means of the registered deed referred to in the plaint and that they had no intention of leaving any portion of the property sold. On the other hand, the contention of the petitioner who was respondent in appeal was that the plaintiffs had only sued for 26 kanals of land and had left out the share of shamilat, well and trees and thus it had been rightly held to be a case of partial pre- emption.
' The learned Additional District Judge ultimately reached the conclusion and recorded the finding that no doubt was left in his mind, after a perusal of the note appended under para. 7 of the plaint, that the plaintiffs had pre-empted all the property which was sold by means of the registered sale- deed, dated 29th April, 1975. The appellate Court was further of the view that notwithstanding the fact that the plaintiffs had not applied for amendment of the plaint specifically so as to include the share of shamilat deh and the share of well and trees but such a prayer had been made in the memorandum of appeal and that too appeared to be superfluous in view of the fact that no property sold was meant to be left out. It was also held that there was a bare recital in the sale- deed regarding share in shamilat, etc., but there was no proof that the vendor was a sharer in the shamilat or mahal chah. The judgment and decree of the trial Court were thus reversed and the suit decreed.
5. The present revision petition has been filed by the vendee in the course of which the judgment of the trial Court is being supported and that of the learned Additional District Judge criticised.
6. The record in this case had been sent for to examine the allegation of the petitioner that some interpolation had been made in the plaint after the disposal of the suit by the learned trial Court.
The allegation related to the interpolation of the note under para. 7 of the plaint.
(1) PLD 1973 Lab. 513
7. The learned counsel for the petitioner Mr. Muhammad Anwar Sipra sought to support his objection at the hearing today in rather a different form. It was pointed out to the learned counsel that the allegation as levelled and the objection raised that there was interpolation in the plaint after the decision of the suit by the trial Court had little merit. This was for the reason that the judgment was rendered by the trial Court on 10th April, 1976 whereas the petitioner with his revision petition had filed a certified copy of the plaint obtained by him on 4th February, 1976. This certified copy duly carried the note in the plaint which is being objected to as an interpolation. Therefore, the allegation that there was interpolation after the decision of the suit stands belied by the factual position obtaining on the record. This by itself would have concluded the matter but then as a matter of abundant caution I have gone through the original plaint on the lower Court record with the assistance of the learned counsel. I find that the note appended to para. 7 is in the same band, ink and pen as the rest of the plaint. The margin of writing the various paras. As well as the lines is uniform and the note has not been squeezed into the plaint at the end to disturb these noted features. Therefore, in either view of the matter, the objection has been raised for the sake of raising it and has no factual basis. The same is accordingly repelled.
8. This brings me to the next question as to the findings of the trial Court as well as the appellate Court on material issue No, 4 as regards the suit being or not being for partial pre-emption. I may at this stage advantageously refer to the decision of B. Z. Kaikaus, J. In the case of Mst. Fatima v.
Sardara (I). The judgment was rendered in this case on an application in revision against the order of a learned Civil Judge, Mandi Bahauddin, allowing a suit to be withdrawn with liberty to bring a fresh suit on the same cause of action. The suit was for partition of the joint Khatas which afforded the cause of action. The relief sought was a declaration that the property gifted belonged to the plaintiff and an injunction that the defendant be restrained from getting the land partitioned. The suit was allowed to be withdrawn by the trial Court on the plaintiff's application with permission to bring a fresh suit in the absence of the opposite side.. Apart from the aforementioned objection, a plea was raised before the High Court that there was defect in the suit inasmuch as there was incorrect reproduction in the plaint of the Khasra numbers which were the subject-matter of the suit. The learned Judge in the High Court held that this defect was of very formal nature which did not have any effect on the suit. The khata numbers had been correctly stated in the plaint and a Jamabandi of the land in suit bad been filed alongwith the plaint. The gift deed itself had also been tiled. There could, therefore, be absolutely no doubt as to the identity of the land in suit. Even if an application was made to the Court at the end of the proceedings for allowing a correction of .The clerical mistake, there would be no objection to the Court allowing an amendment there and then without giving any further opportunity to the other party to adduce any fresh evidence.
' The view taken by the learned Additional District Judge appears to be in accord with the principle laid down in the case of Bahadur Shah and 2 others v. Sharaf and 9 others. This was also a
(1) PLD 1956 (W. P.) Lab. 474 ' decision rendered by this Court in revision in a pre-emption matter. It was laid down that on going through the plaint as well as the sale-deed on the record, the description of land was not only given according to number of khatas and khasras but the area of the land was also given. The number of the khatas and the area in the two documents coincided with one another and there was only a slight error or omission in respect of khasra numbers. However, there was a note at the end of the plaint that if any number of khata or khasra is omitted, due to forgetfulness from the plaint, the same should also be deemed to be included in it, This note in the plaint was considered sufficient manifestation of the intention of the pre-emptor to avoid plea of partial pre-emption. For the purpose of showing that these were formal defects, not fatal to the suit, reliance was placed on the case of Muhammad Irshad Khan v. Murad Khan (1) and Charan Das and others v. Amir and others (2).
9. In the present case as already observed by me above, the note given in the plaint is sufficient to dispel all doubts and make the plaintiff's intention manifest that he was asking for complete substitution for entire rights transferred and was not asking for anything short of that.
10. In support of, the above view, I may advantageously refer to the decision of the Supreme Court of Pakistan in the case of Wazir Muhammad etc. v. Abdul Aziz and another (3). In this case arising out of a pre-emption suit, a plea was raised that the suit was liable to dismissal as there was an omission to mention in the plaint a part of the property which was sought to be pre-empted. The omission pointed out was of certain khasra numbers from the title of the plaint relating to the land being pre-empted. The transaction of sale was witnessed by a mutation which recited that through a mutation, the vendee was transferring his entire interest. The Supreme Court repelled the contention with the following observation :- "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."
In the present case, as well, the khata numbers and Khasra numbers and the area sold are correctly mentioned in the plaint but the only omission complained against is non-mention of the details of the share of shamilat which are not even mentioned in the sale-deed itself. A copy of the sale-deed having been appended with the plaint which furnishes full particulars of the property sold and a note having been appended in the plaint for removal of all doubts in that behalf, the omission was merely clerical and inconsequential. The plea of partial pre-emption, therefore, is devoid of merit in such a situation.
11. Learned counsel for the petitioner has relied on a decision from the Peshawar High Court in the case of Samar Qand and another v. Muhammad Yunis. This case is clearly distinguishable because in that
(1) PLD 1965 Pesh. 225 (2) AIR 1921 P C 50
(3) 1982 SCM R 189 ' case the learned Judge had observed that the plaintiff-respondent according to the revenue record was owner of mulkiat land as well as shamilat land. This very question in the present case was begging for proof. In the precedent case, it was further found that the plaintiff had not specifically averred in the plaint, the reasons for not including the shamilat land in the suit. In the present case, the note under 'para. 7 of the plaint clinches the matter. Therefore, the cited precedent is of no assistance to the learned counsel for the petitioner. I would, therefore, hold that the trial Court was in error in failing to construe the plaint correctly and misapplied the law. The view taken by the appellate Court in holding that this was not a case of partial pre-emption appears to be based on correct appreciation of the material before him and is consonance with the enunciations made by the superior Courts governing such like cases.
' The result is that the petitioner has failed to make out a case for interference in revision under section 115 of the C. P. C. The revision petition is dismissed with costs.