The following proposition of law was canvassed before me in this petition in revision, namely: "Whether in a suit for pre-emption, the pre-emptor would be entitled to the expenses incurred on registration of the sale-deed and stamp duty etc. When no such claim was set up in the plaint nor any evidence to that effect has been adduced before the Trial Judge."
2. The proposition has arisen in the following circumstances: The sale of 20 kanals 19 marlas of land fully described in the title of the plaint and situated in village Ruk Kohna, Tehsil and District D.I. Khan, for an ostensible amount of Rs.76,000 gave rise to a suit by pre-emption thereof filed by Sooba pre-emptor against Haji Inam Khan and 10 others. In order to complete the said registered sale transaction, the vendee has obviously incurred the expenses on registration of the deed and paid the prescribed District Council fee. The claim of pre-emption was based on all the qualifications available to a pre-emptor under section 12 of the N.W.F.P. Pre-emption Act, 1950 (since repealed).
The suit was resisted by the vendees-defendants and on the pleadings of the parties as many as 11 issues including relief were framed.
3. The suit was decreed on payment of Rs.76,000 as pre-emption money, vide judgment and decree of the trial Judge dated 19-7-1987. Feeling aggrieved, the plaintiff-pre-emptor filed an appeal before the learned District Judge, D.I. Khan, who too dismissed it vide his judgment and decree dated-2-12-1987. Hence this petition in revision.
4.Mr. Mohammad Aslam Khan, Advocate, appearing on behalf of the petitioner, confined his arguments only to ground No.5 of his petition which is reflected in the proposition laid down for my address in the opening para. Of this judgment.
5. As against this, S. Mushtaq Ali Shah, the learned counsel for the respondent, controverted this claim of the vendees-petitioners and urged that the claim regarding the expenses incurred towards the completion of the registered sale-deed was neither pleaded in the written statement nor any evidence was adduced before the Trial Judge, therefore, the petitioners are not entitled to any expenses on that score. Reliance was placed on a recent case of Mohammad Sherin Sahibzada v. Lai Bedshah (PLD 1987 Peshawar 62).
6. Learned counsel for the petitioner attempted to meet the objection of the learned counsel for the respondent qua the omission of the vendees to plead the claim of expenses in the plaint by referring to a Division Bench judgment of the Lahore High Court in Mohammad Sadiq v. Shakila Jameel 1983 CLC 1705.
7. In the case of Mohammad Sadiq cited above, the contention that the expenses in the form of registration fee, counsel fee and stamps etc. Could not have been added to the sale price was repelled on the ground that all these amounts were paid by the vendees and if the pre-emptor wanted to enter into the shoes of the vendees he had to pay what the vendor had done. There is no cavil with this proposition. What the learned counsel for the respondent has canvassed was that the said plea was neither set up in the written statement nor any evidence was adduced, therefore, the vendees petitioners were not entitled to the expenses incurred towards the completion of the sale transaction. I am inclined to agree with this proposition propounded by the learned counsel for the respondent. In the instant case, the principle of `secundum allegata et probata' is applicable to the circumstances of this case. The principle means that a fact has to be alleged by a party before it is allowed to be proved.
Obviously, such a plea could not be allowed to be raised at the revisional stage, particularly when such a plea was not a pure question of law but the factual element was involved in the case. I am fortified in this respect by a judgment of this Court in Mohammad Sherin Sahibzada v. Lai Badshah (PLD 1987 Peshawar 62), referred to above.
8. In view of what has been discussed above, I am of the view that if a litigant particularly the vendee in a pre-emption suit fails to lay claim in the written statement to the expenses incurred towards the completion of the sale transaction and no evidence is recorded thereon, he would not be allowed to raise it before the Appellate Court or the Revisional Court, because such a claim involved factual element calling for recording of evidence by the parties.
9. In this view of the matter, this petition in revision has no force which is dismissed with no order as to costs.
AA/990/P Revision dismissed.