SHAFIUR RAHMAN, J: - Leave to appeal was granted to the unsuccessful vendee in a pre-emption suit to examine whether in taking the custom of pre-emption to be proved as in existence at the commencement of the Pre-emption Act, the Courts could rely solely, on a notification of the Government under section 8(2) of the Pre-emption Act excluding a particular area at the time from the application of the Pre-emption Act.
2. The factual background of the case is that Gulzar, a brother of the plaintiff/pre- emptor/respondent No.l sold to the appellant 4 Kanals 15 Marlas of land by registered sale deed on 19-1-1956. The land was located in the revenue estate of Ichhra which stood included in the urban limits of Lahore by a notification which had issued in the year 1939. What happened subsequently in 1941 was that another notification issued by the Government in the following words:- "No.1491-R. In supersession of Punjab Government Notification No.15926, dated 11th May, 1920, and in exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913, the Governor of the Punjab is pleased to declare that no right of pre-emption shall exist within the boundaries of the municipality of Lahore except in respect to the following areas, namely:-
(a) So much of the City of Lahore as lies within the Circular Road.
(b) The area lying between the Chhota Ravi and the Ravi.
(c) The area included in the estates of Ganja Kalan, Sanda Kalan, Sanda Khurd, Qila Hakiman and Rajgarh.
(d) Those estates and portions of estates included in the municipal limits of Lahore by Punjab Government Notification No. 3935-C-39/27667, dated the 24th August, 1939, which prior to the date of the said notificadion were not included in the municipality of Lahore.
2. Nothing herein contained shall be deemed to affect suits for preemption instituted prior to the issue of this notification."
The exact date of notification is 16th June, 1941.
3. In the suit brought by Muhammad Tufail, a plea was taken in para. 3 of the plaint that the custom of pre-emption prevailed in the area where the sale had taken place. This was denied by the defendant. No issue was found or framed with regard to the existence of custom in the area where the sale had taken place. At first, three preliminary issues were framed and these were as under:- "(1) Is the property in dispute urban immovable property or agricultural land?
(2) Is the valuation of the suit land for the purposes of court-fee and jurisdiction incorrect?
(3) Has this Court jurisdiction to try the suit?
4. In 1968, the first preliminary issue was struck off on a grievance made by the vendee that. It did not arise from the pleadings of the parties. Soon thereafter an application was made by the defendant/appellant - seeking amendment of the written statement with a view to take up two grounds; one that was already reflected in the preliminary issue which was struck off and the other that there existed no custom of pre-emption in the locality which was in fact already taken up by denying the claim of the plaintiff to that effect. This application was rejected by the trial Court by an Order dated 8-4-1969 which reads as hereunder:- "Heard counsel for the parties. The suit was instituted in early 1957 and the written statement was filed in November, 1957. This means that the present application has been moved after a lapse of about 12 years. There is no justification why the application was not moved earlier. The suit is a pre- emption suit. In the circumstances I do not think that there is any justification to allow the amendment at this stage. Dismissed."
The two preliminary issues were decided in favour of the plaintiff and thereafter the issues on merits were framed and these were as hereunder:- "(i)Whether the plaintiff. Has superior right of pre-emption qua the defendant/vendee?
(ii) Whether the plaintiff waived his right of pre-emption and is estopped to bring this suit?
(iii) Relief."
The issues on merits were also decided in favour of the plaintiff and the suit was decreed. The appeal of the defendant/vendee before the Additional District Judge failed and also before the High Court.
5. This appeal was at first fixed for hearing along with other connected appeals (Civil Appeals Nos.163 and 392 of 1988) but was detached because certain record of the case relevant to the decision of the appeal was not forthcoming. The decision in the connected appeals is relevant to the decision of this appeal only to the extent that the area of the revenue estate of Ichhra which was added to the urban limits of Lahore in 1939, on the basis of that, decision qualifies as a sub- division of the town having a distinct entity of its own. In view of this being a sub-division of a town, it had to be proved separately under section 7 of the Punjab Pre-emption Act that there existed the right of pre-emption at the commencement of the Act. It appears from the judgment of the High Court as well as of the Additional District Judge that they have taken the notification of the year 1941 under section 8(2) of the Preemption Act to be a proof of the fact that right of pre-emption existed in the area. There are two defects in this approach.
In the first place, the exercise of power under subsection (2) of section 8 of the Pre-emption Act is not a proof of the existence of pre-emption right in the area. It shows the exercise of the right of exempting in an area the exercise of the right of pre-emption, not of its existence.
Secondly, even if it be assumed that it were to show or be a proof of the existence of the right of pre-emption at the time of the notification that would be irrelevant for the purposes of section 7, wherein the requirement of time is "at the commencement of the Pre-emption Act".
6. What is peculiar to the case is that the two factual issues which the appellant wanted to raise by getting the written statement amended have nevertheless been decided by both the Courts without framing any sue, without inviting evidence and without going to the material facts of the case. If at all, a decision had to be given on the controverted questions of fact, then the evidence should have been invited and considered as if these were not legal issues. They had to be proved or disproved in accordance with law. The mere fact that he had moved 12 years after the institution of the suit for amendment is in itself no ground for rejecting the amendment. Particularly so, when the occasion for raising such a plea had arisen when the preliminary framed issue on the subject was struck off and the other issue did already arise from the pleadings of the parties.
7. In the circumstances of the case, we consider that a great prejudice has been done by refusing the amendment by not framing an issue on the controverted question of existence of the right of pre-emption at the. Commencemetit of the Pre-emption Act in the urban area to which the property related. Hence, we accept the appeal, set aside all the judgments. The case shall stand remanded to the trial Court which shall permit the amendment of the written statement in terms applied for and thereafter proceed to redecide the question in accordance with law. No order is made as to costs.
M.BA./A-918/S