This second appeal is addressed against the order of District Judge, Mirpur, passed on November 27, 1985, whereby value of the improvements in the suit land, was reduced from Rs.43,404 to Rs.34,798.
2. The appeal has arisen out of the suit for possession in exercise of prior right of purchase, instituted by Barkat Ali, in respect of land measuring 1 Kanal 12 Marlas, out of 3 Kanals, comprising survey No.10-Min, Khata No.139/13-Min, including built-up property consisting of two rooms, situate.
In village Qasimabad, Tehsil Bhimber. Muhammad Sadiq, alienated the suit property in favour of Pola Khan who further transferred part of the land by a gift, to Muhammad Abdullah and others.
The price of the land was fixed and paid as Rs.60,000. The sale was pre-empted by virtue of relationship and as co-sharer with the vendor in the suit property. Defendant-vendees repudiated the claim of the pre-emptor and further averred in the alternative that in case of decree, vendees were entitled to payment for improvements in the shape of built-up property. The trial Court decreed the suit on October 13, 1984, in favour of Barkat Ali, subject to payment of Rs.60,000 the price of the built-up property, expenses subject.-to the sale-deed and a sum of Rs.43,404, the assessed value of the construction raised by the vendees after the sale and before the institution of the suit. Barkat Ali, decree-holder, feeling dissatisfaction with the assessed value of the improvements comprising additional construction, preferred an appeal before the learned District Judge who partly accepted the claim of the pre-emptor and thereby reduced the value of improvements to Rs.34,798. Barkat Ali still feeling dissatisfied, preferred the present appeal.
3. Mr. M.S. Tariq, the learned counsel for the respondent, moved an application for amendment of written statement, to non-suit the pre-emptor by introduction of exemption of property from the operation of the pre-emption law as, according to appellant, Bhimber City, including Qasimabad, where the suit property was situate, was declared town Committees in 1979 and the property situate therein was exempted from the operation of law. The application is opposed by Raja Muhammad Siddique Khan.
4. Notification No. 4232-39/79, dated August 16, 1979 declared that the Government in exercise of power under Rule 5 of the Local Government Election Rules, 1979, has created District Councils, Markaz Councils, Municipal Committee, Town Area Committees, given in the Schedule. According to the schedule, Bhimber city was declared as Town Committee. Bhimber Khas, Qasimabad and Khamb were placed within the limits of Town Committee. As noticed earlier, the vendees in their written statement, though repudiated the claim of the plaintiff-pre--emptor, failed to raise an objection relation to exemption of the property from the operation of law.
5. The law applicable to amendment of pleadings envisaged under Order VI, Rule 17, C.P. C. Lays down that an amendment to pleadings may be allowed to be made by the Court at any stage, in such manner and on such terms as may be just and necessary for the purpose of determining the real question in controversy between the parties. It is an accepted rule of law that the principles applicable to amendment of plaints are equally applicable to the amendment of written statements. An amendment in the pleadings setting up a case totally inconsistent with the original case, is not allowed as it is deemed unjust to the opposite party. Similarly, when the proposed amendment is considered to have the effect of non-suiting the plaintiff for displacing the plaintiff's suit to affect a right already accrued to the opposite party, it is seldom allowed. The principle is enunciated to ensure that the proposed amendment does not change the nature of the case of the parties seeking amendment so as to cause surprise, resulting in irreparable loss to the opponent. The aforesaid view finds support from the authority recorded in Shaik Masthan Sahib's case AIR 1953 Mad. 958. The relevant observation is:-- ",Proposed amendment in direct negative of admission contained in written statement, cannot be allowed."
In Chandrasakhar's case AIR 1953 Orissa 318, Justice Panigrahi, J. Who spoke for the Court, observed as under:-- "Respondent seeking to amend written statement on last date of argument in appeal-- Respondent having full legal advice when written statement was filed--Amendment changing the whole case of defendant as put in and supported by her throughout---Plaintiffs taken by surprise by defendant's going back upon her pleading--Amendment involving taking of fresh evidence on both sides and ignoring evidence already recorded--Amendment not allowed."
In Subashini's case AIR 1956 Assam 79, Mr. Justice Ram Labhaya, J., who wrote the judgment, observed:-- "Even though the power of Court under Order VI, Rule 17 is very wide, it has got to be exercised in conformity with sound judicial principles. An amendment setting up a case which is totally inconsistent with the original case, is not allowed normally, particularly when it is unjust to the other side."
The principle listed above is laid down in the cases where the amendment was sought to be made in the written statement at various levels, including the stage of second appeal. The learned Judges were of the view that the amendment in written statement cannot be allowed when it is in negation to the earlier stand taken by the defendant or is totally inconsistent to the previous case or it is considered unjust to the opposite party. The facts of present case to refuse amendment are on better footing to the aforesaid cases its in the present case, not only that the proposed amendment was not introduced in the written statement at the earlier stage, the admitted position is that a decree has already been passed in favour of the appellant and has achieved finality. The decree was not challenged by vendees in first appellate Court or this Court. The only point sought to be settled in second appeal confines to assessment of value of the improvements made by the vendees by making construction of a room in the suit land. At this stage when the pre-emptor has already acquired a decree and is vested with a valuable right, the point finally closed cannot be reopened all this stage by allowing the proposed amendment. To allow proposed amendment at this stage, would not only embarrass and cause inconvenience to plaintiff, it was equally unfair and unjust. Thel application is, therefore, disallowed.
6. Respondent-vendee has pleaded ignorance of law for seeking amendment at late stage.
Ignorance of law is no excuse. Moreover he has not substantiated the explanation fox moving for amendment at they stage of second appeal. Creation of Town Committee is not confined to paper work, as Town Committee exists physically in Bhimber city with all its members and Chairman. The factum of Town Committee is, therefore, well-known in the vicinity. No Notification of the Court is shown to satisfy the alleged exemption of suit property from pre-emption. The request is rejected.
7. In support of the claim of improvements, vendees produced Hakim Ali, S.D.O. (Buildings), Tehsil Bhimber who prepared site-plan and made measurement of structure, DA/1 and assessed the value of the superstructure, DB/1 to the tune of Rs.43,404. This includes 15 per cent compulsory acquisition allowance. In rebuttal, pre-emptor produced Muhammad Latif, S.D.O. P.W.D. PA/1 and assessed its value, Fxh. PA/2, to the tune of Rs.25,194. This witness assessed the age of rooms and according to him, the age of Room No. 1 was 5 years and Room No. 2 as 3 years, an the date of estimation. As against this, the estimate prepared by Hakim Ali, S.D.O. Does not show the age of the rooms. It is relevant to state that according to claim of the plaintiff, Room No. 1 was already built up in the suit land at the time of its alienation, whereas the stand of the vendees is that both the rooms were constructed by them, after the sale. The oral evidence led by the parties is divergent as, according to the evidence of the plaintiff, one room was already constructed there and the counter-evidence is that both rooms were constructed by the vendees. The oral evidence being balanced, the subordinate Courts accepted the documentary evidence Exh. D.A., by allowing the claim of the vendees. Both the expert witnesses were not properly cross-examined as the measurement taken by them and the value assessed was not questioned in any manner. The expert opinion is to be accepted in the light of its probative value
8. It is noticed that Hakim Ali failed to give the exact age of the building, whereas abdul Latif, P.W., described the age of Room No. 1 as 5 years and Room No. 2, 3 years, at the time of its assessment.
In this view of the position, the evidence of Abdul Latif, relating to age of the rooms is credible. The age of the rooms, therefore, is to be considered as the one given in the estimate prepared by Abdul Latif, P.W. The claim of plaintiff is that Room No. Was present in the land at the time of transaction of sale. The stand of plaintiff finds supportfrom the sale-deed and the evidence of Abdul Latif, S. D.O.
The subordinate Courts turned down the claim of the plaintiff on this score as, according to them, alienation of a room along with the land, was subsequently added in the sale-deed. It was held that addition of room in the sale-deed was not free from doubt, particularly keeping in view the position of a son of the pre-emptor who was an employee of the subordinate Court. As the subordinate Courts, particularly the learned District Judge, dealt this point at length by coming to the conclusion adverse to the pre-emptor, I have perused the original sale-deed and evidence led in its support. The sale-deed was executed on July 22, 1979. Fazal Hussain, petition-writer, is the scribe. It is true that in line No. 6, addition of residential house is made but there is nothing on record to support an inference adverse to the claim of the plaintiff, to hold that addition was a fabrication, made after the execution of the sale-deed. The learned District Judge examined the register of the Sub-Registrar. Where sale-deeds are entered The alienation of the house entered in the sale-deed is fully supported by the record of the Sub-Registrar. Moreover, Fazal Hussain, Petition-writer, appeared as a witness. He supported the sale of the house along with the land and its entry in the sale-deed at the time of its execution, in presence of the parties. He was cross- examined at length but no substance negative to the claim of the plaintiff was brought out. In addition to the aforesaid evidence, another circumstance which goes in favour of the plaintiff, is that the sale-deed was in the custody of the vendee to whom it was delivered on August 19, i.e. 22 days after its execution and thereafter it remained in his custody. Copy of the sale-deed was obtained by the pre-emptor on July 21, 1980 i.e. a year after its execution when the suit was instituted. The aforesaid facts lead to positive conclusion that the entry of sale of house in the sale- deed is genuine and it cannot be deemed as fabricated one. It is, therefore, proved that at the time of alienation of the suit land, a room was already built in it and the same was sold along with the land .By Muhammad Sadiq, in favour of Pola, vendee.
9.On coming to the conclusion that Room No. 1 was already built in the land and it was included in the sale valued at Rs.60,000, the vendees are found entitled to improvements for the construction of Room No. 2. The value of Room No. 2, as determined by Abdul Latif, P.W. Is Rs.12,217 and value of Room No. 1, Rs.13,977. The difference between the values of these rooms is nominal, according to estimate Ex. P.A. The other estimate, D.B. And DB/1 which is a joint estimate of two rooms, reflects the total value as Rs.37,743 and additional 15 per cent compulsory acquisition allowance as Rs.5,661.
Here, it is -F relevant to state that additional 15 per cent as compulsory acquisition allowance is not permissible in this case as it is not a case of compulsory acquisition. Therefore, the estimate of value of these two rooms is Rs.37,743. The value of one room (Room No. 2) as one-half of total estimate, therefore, comes to Rs.18,871.50. The vendee-respondent is found eligible to get the value of the built-up property consisting of one room, to the tune of Rs.18,871.50 in addition to Rs.60,000, the sale price of the suit property and Rs.2,148, expenses of registration. The suit of the plaintiff is, therefore, decreed on payment of total amount of Rs.81,019.50. The decretal amount shall be paid by the pre-emptor within one month from the date of this order, otherwise his suit shall stand dismissed with costs. On acceptance of appeal, orders of the subordinate Courts are modified accordingly. Parties are left to bear their own costs.