This regular second appeal has been filed to assail the judgment and decree of the learned Senior Civil Judge, Bahawalnagar, Camp at Hasilpur, dated 14-12-1970 and those of the learned District Judge, Bahawalpur, dated 22-9-1971. The learned trial Court had decreed the suit of Nabi Bakhsh for possession by pre-emption of the land in dispute on payment of Rs.11,500. The appeal filed by the appellants was unsuccessful.
2. The facts of this case, in brief, are that Muhammad Ishaq son of Ismail was the owner of the land in dispute measuring 91 Kanals and 12 Marlas, situate in Village Bhatti, Tehsil Hasilpur, District Bahawalpur. Muhammad lshaq sold this land in favour of Abdul Wahid, Muhammad Ali and Falak Sher by means of mutation No.253 attested on 16-1-1986 for an ostensible consideration of Rs.11,50n.
Nabi Bakhsh, the plaintiff/respondent, who happens to be a collateral of the vendor and an owner m Village Bhatti, sought to pre-empt the sale of the land in dispute on payment of Rs.10,000.
3. Ata Muhammad, Ahmad Bakhsh, Haji and Faizullah brought a separate suit for pre-emption.
Both the suits were consolidated and the rival pre-emptors were impleaded as a party in the suit of Nabi Bakhsh as defendants Nos.4 to 7. The learned trial Court held that the land in dispute was an evacuee property and not pre-emptible. Both the suits were dismissed on this technical ground.
The rival pre-emptors did not lodge an appeal and the judgment of the learned trial Court against them became final. Nabi Bakhsh lodged an appeal and the suit was remanded to the learned trial Court so that it should be decided on merits. From the pleadings of the parties the following issues were framed:-
(1) Has the plaintiff superior right of pre-emption?
(2) Was the suit land sold for Rs.11,500 and the same was actually paid?
(3) If not, what was the market value at the time of sale?
(4) Has the plaintiff waived his right of pre-emption?
(5) Is the suit time-barred?
(6) Relief.
Issues Nos. 1, 4 and 5 were formulated on the objections raised by the rival pre-emptors. The rival pre-emptors, as stated supra, did not lodge an appeal and their names were deleted on 25-2- 1970. Since they had not contested the original suit, so issues Nos. 1, 4 and 5 were struck off by the learned trial Court. The sale price of Rs.11,500 was allowed to the appellants and the suit of Nabi Bakhsh was decreed.
4. It may be noted that the present appellants have stated in their written statement that they admit the preferential right of pre-emption of Nabi Bakhsh and they should only be paid the sale price which the vendor had accepted from them. When the rival pre-emptors were made a party, they filed the additional written statement and denied the superior right of pre-emption of Nabi Bakhsh and took the plea that the pre-emptor should be non-suited as he had waived his right of pre-emption.
5. Issues arise from the pleadings of the parties, the documents filed by them and the statements of the parties recorded before the formulation of issues. In this case, the rival pre-emptors, who had raised a number of pleas embodied in issues Nos. 1, 4 and 5 were not in the picture and, on the deletion of their names, issues Nos. 1, 4 and 5 were rightly struck off.
6. The point for determination before the learned lower Courts was whether or not the appellants could take inconsistent pleas in their written statement, which was filed after impleading the rival pre-emptors in the suit of Nabi Bakhsh. The learned counsel for the appellants has cited B. Parbhu Narain Singh and others v. B. Jitendra Mohan Singh and another AIR 1948 Oudh 307 in which it was adjudicated that the plaintiff was not prejudiced nor taken by suprise when an exhaustive issue was framed to cover a case set up by the defendant which was different from that pleaded in his written statement and all the documents relating to the case were before the Court and in that manner, the plaintiff was not prejudiced. The principle enunciated in this precedent cannot safely be extended to the facts of the case in hand.
7. The learned counsel for the respondents has cited Muhammad Afsar Khan v. Muhammad Rashid and 9 others PLD 1986 Azad J & K 196 and Matwali Khan v. Shah Zaman and others PLD 1865 Azad J & K 26. These precedents relate to unauthorized amendment, which was not allowed by the Court.
8. It is a clear proposition of law that a party cannot be allowed to take inconsistent pleas in his written statement. The appellants had admitted the plaintiff's superior right of pre-emption and had simply demanded the sale price paid by them and subsequently they denied the plaintiffs superior right of pre--emption and also claimed waiver. They have, m fact, revoked their earlier admission. A party cannot be allowed to take an inconsistent plea as pleaded earlier and the admission once made by a party to the pleadings cannot be revoked without the leave of the Court. Haji Suleman Ali Muhammad v. Ahmad Ali and another PLD 1982 Kar. 111 also endorses the same principle.
9. In this manner, the appellants were not competent to raise inconsistent pleas without the leave of the Court. The findings of the learned lower Courts are unexceptionable. I see no merit in this regular second appeal and dismiss the same. Due to legal complexities involved in this appeal, I make no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.