This writ petition is directed against the orders dated 17-2-1980 and 20-10---1981 passed by the Addl. Commissioner (Revenue), Multan and Member (Revenue) Board of Revenue, Punjab, Lahore, respectively.
2. Brief facts of the case are that a vast tract of land measuring 906 Kanals and 2 Marlas, situated in Tehsil Layyah, District Muzaffargarh was sold by Mushtaq A.I etc. To a number of persons including respondents Nos. 1 to 13, through a registered sale decd dated 9-4-1975. The total sale price was Rs. 2,29,286.
3. The petitioners were tenants in a portion of the land measuring 144 Kanals situated in rectangle No. 51, Killa Nos.1 to 5, rectangle No. 52, Killa Nos. 1 to 10, rectangle No. 52 Killa Nos. 3 to 5 and rectangle No.61 Killa No. 1, Northern. They filed a suit for pre-empting the said land in the Court of A.C./Collector Layyah on 10-7-1977 on the ground of tenancy. The disputed property was fully described in the plaint and a prayer was made for pre-empting the entire land mentioned in the heading of the plaint. In the written statement a number of preliminary objections including objections Nos. 4 and 5 relating to partial pre-emption and non-joining of the necessary parties, were raised.
4. On the pleadings of the parties the trial Court framed the following issues:--
(1) Whether the plaintiffs have got no locus standi to file the suit? OPD.
(2) Whether the plaintiffs have got no cause of action for this suit? OPD.
(3) Whether the suit has been valued wrongly for the purposes of determination of the Court-fee and effect? OPD.
(4) Whether the suit is for partial sale and is liable for dismissal? OPD.
(5) Whether the plaintiffs a not tenants on the suit land and, the Court has no jurisdiction? OPD.
(6) Whether the suit is liable for dismissal for want of necessary parties? OPD.
(7) Whether the Court-fee has been affixed? OPD.
(Not properly framed)
(8) Whether the plaintiffs have got superior right of pre-emption? OPD.
(9) What was the sale price of the land sold and its market price? OP Parties.
(10) Relief.
The parties produced oral as well as documentary evidence to prove their respective contentions.
After going through the evidence the trial Court decreed the suit subject to payment of Rs.
36,443/-, vide judgment and decree dated 31-5-- 1979. Respondents Nos. 1 to 13, preferred an appeal in the Court of Addl: Commissioner (Revenue), who was pleased to accept the same vide his order dated 17-2-1980. The petitioners filed a revision petition which was dismissed by the Member (Revenue), Board of Revenue, Punjab, Lahore vide order dated 20-- 10-1981.
5. I have heard the learned counsel for the parties and gone through the relevant record available on the file of the writ petition.
6. The learned counsel for the petitioner submits that respondents Nos. 1 to 13, had not pressed issues Nos. 1 to 4 and 7 before the Collector, hence it was not open to them to challenge the findings of the trial Court on the said issues. The appellate and revisional authorities acted without lawful authority in reversing the findings on issues Nos. 3 and 4. He further submits that the mere omission of one rectangle No. 61/1 Northern was not sufficient to show that the suit was for partial pre-emption. He has placed reliance on Malik Hussain v. Ram Chand (PLD 1970 SC' 299) and Ata Muhammad v. Ahmad Bakhsh (PLD 1971 Lahore 4(11). He further submits that Barkat A.I was a mere lessee and not a tenant and was covered in the definition of "landlord". Hence, he was not a necessary party. Even otherwise he was a vendee in respect of certain other land and was not even a proper party in the present litigation. As regards the deficiency in the court-fee the learned counsel submits that the issue was not pressed by respondents Nos. 1 to 3 and, at any rate, had any deficiency been pointed out and determined by the trial Court, the petitioners would have readily paid the same. In the end the learned counsel submits that respondents Nos. 1 to 13 did not tile any written statement therefore, the factual averments in the writ petition would be deemed to be correct. He placed reliance on Adnan Afzal v. Col. (Reid.) Sher Afzal and 2 others (PLD 1982 Lah.
755).
7. On the other hand the learned counsel for the respondents contends that the sale was joint one and indivisible and all the vendees ought to have been impleaded in the case. He further submits that rectangle No. 61/1, Northern, was not mentioned in the statement. Made by Siddiq Javed petitioner in the Court, hence the suit became one for partial pre-emption. He has also objected that a number of the certified copies of the relevant documents were not filed by the petitioners, hence the writ petition could not be properly adjudicated upon. Lastly, he submits that the non- filing of written statement in the present case was inconsequential as the matter arose out of civil proceedings and had to be decided in accordance with the records.
8. It is significant to mention that in the trial Court issues Nos. 1 to 4 were not pressed by the contesting defendants. The onus of said issues was on respondents Nos. 8 to 13 and Asghar A.I deceased who did not lead any evidence to discharge their burden of proof. It was not open to them to reagitate the said issues before the higher forums. Hence, they could neither raise the question of the partial pre-emption nor that of deficiency of the Court-fee. At any rate, the deficiency of Court-fee was determined even 'ht the appellate or the revisional stage. Had the deficiency in payment of Court-fee been determined the petitioners could have been required to pay the same within a specified period. In the grounds of appeal, respondents Nos. 1 to 13 had alleged that issues Nos. 1 to 4 and 7 were decided against the law and facts. It was not specifically alleged that the Court had wrongly held that the said issues were not pressed in the trial Court.
Therefore, it can be safely concluded that the said issues were not pressed and respondents Nos. 1 to 13 could not be permitted to challenge the findings on a vague ground of the said findings being against the law and facts.
9. Even if the question of partial pre-emption is allowed to be raised, the finding has to be against the respondents on merits. A perusal of the sale deed clearly shows that the total land sold was 906 Kanals and 2 Marlas and was purchased by different groups of persons and the property falling to their shares had been separately specified in the sale decd. The petitioners were tenants in the land measuring 144 Kanals purchased by Asghar A.I, Jan Muhammad, Rehmatullah, Nematulhih, Muhammad Rafiq, Ghulam Rasool and Channan Din. Asghar A.I deceased is now represented by respondents Nos. 1 to 7. The plaintiffs/petitioners in the instant case were not supposed to sue for the entire land because their right of pre-emption based on the tenancy extended only up to 144 Kanals of land duly described in the heading of the plaint. The sale was made in favour of different groups of persons and the land purchased by each group was separately described in the sale deed. In the case of Malik Hussain v. Ram Chand (PLD 1970 SC 299) it was held:-- "A pre-emptor is not bound to seek pre-emption of the whole of the property sold and pay the full sale price if his right of pre-emption extends over only a portion of the property sold or if a portion of the property is capable of pre-emption and the other is not in case of any such limitation, partial pre-emption on payment of proportionate price may be permitted as of necessity and not because the pre-emptor wants it."
The same view was expressed in Ata Muhammad v. Ahmad Bakhsh (PLD 1971 Lahore 401). While dealing with the question of partial pre-emption and divisibility of sale, it was held that the mere composite nature of the transaction would not make the sale indivisible so as to extend the plaintiff's right of pre---emption to the major portion of the suit land in regard to which he cannot claim any superiority of right to that of the vendee respondents. Thus the petitioners could legitimately file the suit for pre-empting 144 Kanals of land to which their right extended on the ground of tenancy. The mere non-mention of the Khasra No.61/1, Northern, was the result of an inadvertent omission or a bona fide mistake and not a conscious abandonment of right in respect of the said land. Obviously, the said Khasra No. Was included in the plaint and the plaintiff/petitioners could not conceivably abandon their claim in respect of the said Khasra No., measuring 6 Kanals because it would have been fatal to their suit. They had filed the suit for possession through pre-emption in respect of 144 Kanals of land on payment of Rs. 20,000 or the price determined by the Court for the, said area. The Court had fixed the price of Rs. 36,443 for the entire area of 144 Kanals which the petitioners duly deposited within the period fixed by the Court.
10. The learned counsel for the petitioners has rightly pointed out while placing reliance on Adrian Afzal v. Col. (Recd.) Sher Afzal and 2 others (PLD 1982 Lah. 755) that in the absence of the written statement filed by respondents Nos. 1 to 13, the facts asserted in the writ petition have to be taken to have been admitted. It was specifically mentioned therein that the omission of Khasra No. 61/1 Northern, in the statement of Javed Siddiq, petitioner was the result of bona fide mistake and that the said Khasra No. Was mentioned in the plaint which proved the intention of the petitioner to pre- empt the said land as well. There was no denial on the part of the respondents about the said averments in the writ petition which would be deemed to have been admitted. I, therefore, hold that the omission of Khasra No. 61/1 Northern, in the statement of Javed Siddiq petitioner was due to a bona fide mistake and could not be equated with conscious abandonment of. Right in respect of the said Khasra No. 61/1.
11. So far as the question of necessary parties is concerned, all the parties whose presence was essential for an effective adjudication of the case were present before the Court. Burden of issue No. 6 relating to necessary parties was on the defendants/respondents Nos. 1 to 13. The trial Court had rightly held that Barkat A.I and Noor Muhammad were landlords within the definition of the said f term given under subsection (12) of section 4 read with subsection (26) of section 4 of the Land Revenue Act. They were also vendees of the land which was not sought to be pre-empted by the petitioners. Therefore, the appellate and the revisional Courts erred in law in holding that they were necessary parties to the suits.
12. For the foregoing reasons this petition is allowed, the judgments and decrees of the Addl.
Commissioner (Revenue) Multan and Member (Revenue), Board of Revenue, Punjab, Lahore dated 17-2-1980 and 20-10-1981, respectively, are declared to be without lawful authority and of no legal effect and the judgment and decree dated 31-5-1979 passed by the Collector is restored, leaving the parties to bear their own costs.