' This regular second appeal has arisen out of a suit for possession of land through pre-emption instituted by the appellants on 2-2-1965 to pre-empt the sale of land measuring 93 Kanals 14 Marlas situated in Mauza Sahike, Tehsil Daska, District Sialkot, effected by one Faiz Ahmad for an ostensible price of Rs.18,000 in favour of the respondents by means of registered sale deed, dated 27-3-1964. The appellants based their right of pre-emption on the ground that they were owners in the Khata out of which the land in question was sold.
2. The suit was contested by the respondents inter alia on the grounds that the suit was barred by time as against Shaukat Ali respondent, who was initially described as major in the plaint but later on was shown as minor in the amended plaint, filed after the expiry of the prescribed period of limitation, that the land in question being evacuee property, its sale was not pre-emptible, that the Court had no jurisdiction to try the suit that the value of the suit for purposes of court-fee and jurisdiction was not correct, that the appellants had no preferential right to pre-empt the sale as the vendees respondents were also owners in the Khata, and that the suit land was purchased by them for Rs.18,000 which amount was fixed as the price of the land in good faith and was actually paid to the vendor. The trial Court framed the following preliminary issues for the disposal of legal objections raised by the respondents in their written statement:--
(1) Whether the suit against Shaukat Ali defendant is barred by time?
(2) Whether the suit has not been properly instituted against Shaukat Ali defendant?
(3) Whether the transaction is not pre-emptible?
(4) Whether the Civil Court has no jurisdiction to entertain this suit?
(5) Whether the suit has been properly valued for the purpose of court-fee and jurisdiction?
' Issues Nos. 1 and 2 were considered together by the learned trial Court and it was found that since the suit against the minor defendant would be deemed to have been instituted against him when he was impleaded as defendant through guardian, the appellants' suit against Shaukat All defendant was barred by time as he was sued through a guardian on 20-7-1965 by which date the prescribed period of limitation for filing the suit had expired. As regards the objection that the land in dispute was evacuee property the learned trial Court held that since the land had been permanently allotted to the vendor it was no longer an avacuee property and its sale was, therefore, pre-emptible. The learned trial Court also came to the conclusion that the suit instituted by the appellants was triable by the Civil Court. The valuation of the suit for purposes of court-fee and jurisdiction was also found to be in order. As a result of its findings on issues No. 1 and 2 the learned trial Court dismissed the appellants' suit holding that the transaction of sale being indivisible the suit could not proceed against the respondents, who were sued by the appellants within time, vide its judgment, dated 22-6-1967.
3. On appeal the learned appellate Court not only maintained the Finding of the learned trial court on issue Nos 1 and 2 but also reversed its findings on issues No. 4 and 5 and consequently dismissed the appeal on 10-9-1968. Aggrieved by the judgments and decrees of the Courts below the appellants have filed the present appeal in this Court.
4. Notices were issued to the respondents but they failed to appear in Court after service.
Muhammad Husain respondent No. 1 through whom Shaukat Ali minor respondent No. 4 was sued also failed to appear in Court to represent the minor with the result that the Reader of the Court was appointed as his guardian ad litem.
5. Learned counsel for the appellants has rightly pointed out that the Courts below have misconstrued the provisions of Order I, rule 10 (5), C.P.C. inasmuch as the name of Shaukat Ali minor respondent was mentioned in the plaint as defendant No. 4 when the suit was instituted by the appellants and that it was not a case, where the appellants could be said to have added a person as defendant after the institution of the suit. It was merely a case misdescription of a party to which the provisions of sub-rule (5) of rule 10 of Order I of the Code of Civil Procedure were not applicable. The mere correction of the descrip tion of Shaukat Ali respondent No. 4 did not affect the question of limitation. Reference in this connection may be made to Yunus Bhuiyan (minor) and another v. Jiban Chandra Datta and others PLD 1963 Dacca 323. As the view taken by the Courts below while deciding issues Nos. 1 and 2 against the appellant is not legally sustainable it is held that the suit against Shaukat Ali respondent was not barred by time when amended plaint showing him minor and his father as his guardian ad litem was filed.
6. From the record it appears that Faiz Ahmad, who sold the disputed land, had acquired it as a result of consolidation proceedings carried out by the concerned authorities. Evidently the land in question could not have been transferred to Faiz Ahmad unless he was holding the land surrendered by him in lieu thereof on permanent basis. The disputed land was, therefore, no longer evacuee land and its sale could be legally the subject-matter of a pre-emption suit. There can be hardly any controversy as to the maintainability of pre-emption suits in respect of lands permanently transferred to displaced persons under the Displaced Persons (Land Settlement) Act 1958 in view of the decision of the Supreme Court in Sultan Muhammad v. Muhammad Siddique PLD 1973 SC 347. The view taken by the learned District Judge while deciding issues Nos. 3 and 4 against the appellants is not based on proper appreciation of the legal position. Findings of the learned District Judge on the aforementioned issues are, therefore, reversed and it is held that the sale of the suit land is pre-emptible and the Civil Court has jurisdiction to try the suit instituted by the appellants.
' For the reasons stated above this appeal is allowed, the decrees and judgments passed by the Courts below are set aside and the case is remanded to the trial Court for its disposal according to