This revision (originally R.S.A.) arises from the judgment and decree dated 14-1-1978 of the learned Additional District Judge, Sialkot, whereby he accepted the respondents-plaintiffs' appeal and decreed their suit for pre---emption.
2. Land measuring 173 Kanals 17 Marlas was purchased by the petitioner---vendee for a sum of Rs.8,000 by a registered sale-deed dated 24-9-1971. The respondents/pre-emptors claimed the whole of it through pre-emption but indicated in the alternative that an area measuring 41 Kanals 12 Marlas out of the total land was cancelled by the Settlement Department from the name of the vendor on the ground of his false claim and that in any such event the suit would ensure for the remaining portion on payment of the proportionate price.
3. The petitioner-vendee pleaded in defence that the suit being for a part of the land sold was hit by the doctrine of partial pre-emption. The trial Court accepted the plea and dismissed the suit but the lower appellate Court took a different view in holding that in para. 14 of the plaint, the respondents had claimed the whole land in the first instance and that the same sufficed to save it from the application of partial pre-emption. In the estimation, making an alternate prayer was of no consequence as it had to take effect if the initial prayer was refused.
4. Syed Zain-ul-Abidin, Advocate, for the revision petitioner relied upon Malik Hussain-and others v.
Lala Ram Chand and others PLD 1970 SC 299 and Ghulam Muhammad and others v. Khushi Muhammad and others PLD 1973. SC 444 to stress that it was not open to the respondents to make even an alternate claim on the plea of defective title of the vendor and that if they were really keen to pre-empt, they had to claim the whole of the land straightaway on the payment of the entire consideration amount. He referred to, in detail, the averments made in paras. 8, 9 and even 14 of the plaint to establish that the whole effort on the respondents' part was to drop the suit about 41 Kanals 12 Marlas in regard to which the vendor's title was found defective and that this narration richly attracted the application of partial pre-emption. He further sought support from a remark of the respondents made in the cross-examination to the effect that his suit related to 17/18 acres as against 21 acres included in the sale.
5. On the other hand Mr. Hanif Niazi, Advocate contended that making an alternate plea was not prohibited by law. He relied upon Order VII, rule 7, C.P.C. Which always permitted alternate claim. In any event, according to him, the alternate prayer was overlooked by the lower appellate Court because it was noted that the claim initially was made in regard to the entire area sold. He tried to distinguish the precedent cases on the ground that there, either a part of the land was overtly abandoned or was not at all included in the plaint. In the present case he stressed that neither any portion was abandoned nor left out. The unwary remark made by the respondents m the cross- examination, he urged, could not be read in isolation of his other statement wherein he definitely claimed the entire area sold.
6. A perusal of the plaint made it more than clear that the main object was to achieve the entire area included in the sale-deed i.e. 173 Kanals 17 Marlas. Making alternative claim was by no means prohibited. Order VII rule 7, C.P.C. Does not admit two opinions about this proposition. The argument that by having made a prayer in the alternative, the respondents had abandoned a portion of the suit land was rather inconceivable. His whole effort on the other hand was directed against the total area. He made no statement to abandon any portion therefore. The unmindful reply made during the cross-examination reflected a rough reference to the land in suit. Earlier in the cross- examination he had pointedly asserted that his suit included all the land comprised in the sale- deed. Obviously his statement had to be read as a whole, rather than disjunctively or out of context. Above all, the suit has been decreed in toto whereby the respondent appeared to have agreed to undertake the risk of defect in the vendor's title. It clearly meant that he abandoned alternative prayer and concentrated his claim for the whole of the area sold.
7. There was no substance in the revision petition and the same is dismissed leaving the parties to bear their own costs.
M.Y.H./NT-1540/1