This regular second appeal assails the judgment and decree of the learned District Judge, Rang dated 17-11-1976 whereby while dismissing the appeal filed by the appellant, he affirmed the judgment and decree of the trial Court dated 15th of November, 1975.
2. The circumstances in which this appeal has arisen are that on 11-1-1972 the respondents filed a suit for possession through pre-emption in respect of land measuring 20 kanals 17 marlas, situate in Mauza Dhal, Tehsil Shorkot, District Jhang. This land originally belonged to Ghulam Jaffar, son of Pehalwan, who transferred it to the appellant through Mutation No.1328 which was attested on 11-1- 1971. In the suit filed by the respondents/plaintiffs it was alleged that the transaction was a sale and they had a right to pre-empt it as they were collaterals of the vendor.
This suit was resisted by the appellant on the ground that the respondents had not superior right of pre-emption and also that the suit was bad on account of partial pre-emption. In the written statement it was, however, admitted that the transaction was a sale. The suit was originally dismissed by the trial Court on 20th of June, 1973 as being barred on account of partial pre- emption. This decision of the trial Court was reversed by the learned District Judge on appeal filed by the respondents on 30th of October, 1973 who allowed the respondents/plaintiffs to amend the plaint so as to incorporate Khasra No.142/1 which had initially been omitted. After remand, an amended plaint was filed by the respondents in which apart from the insertion of Khasra No.142/1 certain unauthorised amendments were made. In the amended written statement, the appellant took up the plea that the transaction was an exchange and not sale and therefore not pre- emptiable. It may be mentioned that earlier the appellant had applied for the amendment of written statement to raise such a plea which application was, however, rejected by the trial Court on 18th of May, 1972 and the revision filed against this order was dismissed by the learned Addl.
District Judge, Jhang.
On the basis of the amended pleadings the trial Court framed an additional issue namely: 1-AWhether the transaction was a sale or exchange ?
However, on 3rd of September, 1974 it was noticed by the trial Court, that the appellate Court, while remanding the case, had allowed amendment only to the extent of insertion of Khasra No.142/1 but the parties had un-authorisedly amended their pleadings. The unauthorised amendments were, therefore, ordered to be deleted and the additional issue No.1-A was struck off. This order was challenged by the appellant by filing a revision petition before the Addl. District Judge which was, however, dismissed on 24-6-1975. Thereafter on 15th of November, 1975 the suit was decreed by the trial Court in favour of the respondents and against the appellant on the payment of Rs.5,250 as sale price.
The appeal filed by the appellant also failed before the District Judge, Jhang. Hence this regular second appeal.
3. Malik Muhammad Hussain Awan, Advocate, learned counsel for the appellant has firstly contended that the transaction in question was an exchange and not a sale and it was under an erroneous impression that in the Written statement originally filed; the transaction was admitted to be a sale. The learned counsel has explained that this mistake occurred as on 8th of July, 1971 another mutation of sale bearing 1317 was attested, according to which the appellant had purchased other land from the same vendor namely Ghulam Jafar. The learned counsel in this connection has assailed the validity of the order of the trial Court refusing permission to him to amend the written statement.
As already noticed after the dismissal of the application for amendment as also the striking off of the additional issue, the appellant had challenged the orders passed by the trial Court by filing two separate revision petitions, both of which were dismissed. These orders of the revisional Court were not challenged any further and it is highly doubtful in the face of the pronouncement of the Supreme Court in Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCM R 322 as to whether the appellant can be permitted to reagitate the same questions now.
4. Even otherwise, I see no justification for interference in the discretionary orders passed by the trial Court refusing permission to amend the written statement. It is not denied by the learned counsel that in the written statement originally filed the transaction was admitted to be a sale. By the proposed amendment this admission was sought to be deleted, for which the trial Court saw no sufficient reason. This order was upheld in revision by the Addl. District Judge. The discretion exercised by the two Courts has not been shown to have been exercised arbitrarily or capriciously so as to justify interference in second appeal at this stage. Having once admitted that the transaction was a sale there was no valid justification for allowing the appellant to resile from this position. It is also interesting to note that the land which is said to have given in exchange for the land in dispute, according to the case of appellant himself, was subsequently re-transferred by the vendor to the appellant------.As there was no plea in the written statement regarding the transaction being an exchange, no issue could be framed on this aspect of the matter.
4. It was next contended by the learned counsel for the appellant that there was no evidence on the record to show that the respondents/plaintiffs are the collaterals of the vendor, Ghulam Jafar.
The two Courts below in this behalf have recorded a finding of fact that the respondents have a superior right of pre--emption as against the appellant being collaterals. From the perusal of the record, it appears that the respondent while appearing as his own witness had made a categorical statement that he was a collateral of the vendor. Not only this statement was not challenged in the cross-examination but while appearing as his own witness the appellant did not utter a single word in rebuttal of the statement made by the respondent/plaintiff on oath. Additionally the respondents have also produced P.W./1, Ahmad Nawaz who too fully supported their case. As regards the pedigree table it has been pointed out by the learned counsel for the appellant that there is no line connecting Pehalwan with Ahmad, and on this basis it was contended. That Pehalwan was not a son of Ahmad. However, this ambiguity or omission has been sufficiently explained by the two witnesses produced by the respondents/plaintiffs. The appellant, on the other hand, singularly failed to produce any evidence whatsoever in rebuttal. In these circumstances, 1 do not find any justification for interfering in the findings of fact recorded in this behalf.
5. The next contention of learned counsel for the appellant was that he was entitled to receive a sum of Rs.3,000 on account of improvements made by him and the findings of the two Courts on this question were erroneous. Mr. Muhammad Nazir Janjua, Advocate, learned counsel for the respondents has conceded this claim of the appellant and has no objection if the decrees of the two Courts below are modified to this extent.
H.B.T/N-236/L.