SHAFIUR RAHMAN, J.---The petitioner who is the vendee/defendant in a civil suit, seeks leave to appeal against the judgment of the Peshawar High Court, dated the 21st June, 1989, whereby the judgment and decree granted by the trial Court was restored.
2. The petitioner purchased land measuring 18 Kanals vide registered deed, dated 28-12-1980. The sale was pre-empted successfully by the respondent. The Appellate Court, however, reversed the judgment and decree on the ground that the plaintiff had made an admission that the vendee was the tenant of the property. The High Court upset this finding based on admission and restored the judgment of the trial Court. This is a very peculiar case where the petitioner had not followed his own case but instead on getting an admission with regard to his status as a tenant, got his written statement amended with a view to incorporate that admission in evidence made by the plaintiff/pre-emptor and made it a part of his case. That was fatal to him because on facts his case was that he was a mortgagee of the property prior to its purchase and had been put into possession long before the registered deed was formally executed and got registered. It was never his case, except for this admission of the plaintiff, that he was a tenant of the property. The relevant revenue record did not support this admission. The High Court observed as follows:-- "In the light of the entries of the record of rights to which presumption of truth is attached the said admission, prima facie appears to be erroneous and the maker thereof has rightly retracted from it. Consequently the defendant/respondent could not take any benefit from the bald admission of the opposite side particularly when the same had been proved to be erroneous and already retracted."
3. The learned counsel for the petitioner has taken us through the law in order to show the primacy of admission by a party and its efficacy in determining inter partes disputes.
4. This was a very unusual case where a party was allowed to amend its written statement in order to incorporate in it a part of the evidence of the plaintiff which was considered to be admission, though such amendment was in derogation of his own claim as set out through the documents and otherwise. To accept somebody as the cultivator of the land does not necessarily mean that he is a tenant of the sort who is legally entitled to enforce his rights of pre-emption on that account. Besides, if the person who is given the status of a tenant, in fact claims to be mortgagee of the property, a far superior right than that of a tenant, then such admission cannot be conclusive for defeating the plaintiff's claim because on 'becoming a mortgagee, the tenancy gets merged in the same and as mortgagee no such preferential rights are enjoyed.
5. We find that the decision proceeds on correct premises and no ground is made out for leave to appeal which is hereby refused.