' MUHAMMAD AFZAL LONE, J.---This is an appeal under Article 185(2) of the Constitution, by the vendees in a pre-emption suit, directed against the judgment and decree dated 5-12-988, passed in first appeal by a D.B. Of the Lahore High Court, Lahore, whereby the trial Court's judgment and decree, in favour of the respondent, were upheld.
2. The dispute between the parties relates to land measuring 431 Kanals 7 Marlas, situate in Chak No,328/JB, Tehsil Toba Tck Singh, purchased by the appellant from late Field Martial Muhammad Ayub Khan, vide registered sale-deed, dated 18-10-1973, on the basis whereof Mutation No,591 was sanctioned on 20-11-1973. The suit to pre-empt the sale was filed by the respondent on 9-9-1974 on the ground that he was owner of the estate. The appellants contested the suit and in the written statement denied the respondent's superior right of pre-emption; asserted that they too were owner of the estate and had further improved their status prior to the institution of the suit. As would appear from the record, the appellants' claim of being owner of the estate was founded on acquisition of two pieces of land in the same estate, before they were sued; the first one measured 1 Kanal comprising 20-69 share of 3 Kanals 9 Marlas land, bearing Killa No,23/1/3, falling in Square No,3, Khatuni No,246 and Khavat No,
121. It was transferred to the appellants under Gift Deed, dated 8-9-1974, registered on 10-10-1974, which was executed in their favour by Dr. Nazir Ahmad and others. The second piece of land measured 4 Kanals, comprising 80/1958 share of Khavat No,120, Khatuni No,245, having in all an area of 97 Kanals, 18 Marlas. It was purchased by the appellants vide registered sale-deed dated 10-10-1974.
3. In the replication filed by the respondent, he maintained that he had ' already filed suits for enforcement of right of pre-emption in respect of the land, on the basis of ownership whereof the appellants intended to defeat his pre-emptory rights in the suit land. It may be stated here that the suit (No,368) relating to 1 Kanal was instituted on 24-2-1975. In the plaint it was averred that the transaction in favour of the appellants was actually a sale but camouflaged as a gift. This suit was, however, dismissed as withdrawn on 12-6-1979 on the respondent's statement. It is noteworthy that, in the course of hearing of that suit, while appearing as his own witness, the respondent in his statement dated 3-10-1978 admitted that the land was agricultural land; was cultivated; on which the land revenue was also paid. As regards 4 Kanals land, two suits were filed to pre-empt its sale, one by Asghar All respondent and the other by Muhammad Abbas, who is the son of the vendor. The respondent vide his statement dated 19-11-1981 withdrew his suit.
On the same date on the statement of the appellants and their learned counsel, the suit was decreed in favour of the rival pre-emptor i.e, Muhammad Abbas, subject to deposit of Rs,10,000 in the Court by 19-12-1981 after deduction of the amount of `zare punjam'.
4. Now reverting to the suit in hand, it will be seen that the vcndeesappellants having surrendered 4 Kanals, were left with only 1 Kanals piece of land to anchor their claim of being owner of the estate.
It is evident from the record that before the High Court the contest between the parties was entirely centered around Issue No,1 to the effect, whether the plaintiff-respondent had superior right of pre- emption against the vendecs. In the presence of the respondent's admission in Suit No,368 that the area of 1 Kanal was agricultural land and assessed to land revenue, apparently there was not hitch for the appellants to successfully acquire the status of owner of estate. The respondent, however, on 18-3-1979 moved three applications before the trial Court; one for amendment of the plaint to incorporate therein a new plea that 1 Kanal land gifted to the appellants was "ghair mumkin abadi" situate in Mohallah Siddique Park, Toba Tek Singh, which had been converted into building site.
Under the second application an additional issue was sought to be framed to encompass the controversy whether the vendees-appellants, by virtue of the gift, had improved their status after the sale in question. The third application was filed in Suit No,368, which was then pending. In this application the respondent prayed for grant of permission to withdraw his admission regarding the character of the land. From the record before us, the fate of first two applications is not quite clear, but it appears that these did not succeed. It seems to us that Suit No,368 having been withdrawn, the 3rd application became infructuous. Due to this withdrawal, the appellants conceivably felt that their title to 1 Kanal was fully secured. It is on the record that on 25-9-1980 they applied to the trial Court that to substantiate their claim as owner of the estate, they would only count upon the transaction of gift and thus abandoned reliance on sale of 4 Kanals to them. Significantly, it was thereafter that the appellants confessed the judgment in suit for pre-empting that sale.
5. Notwithstanding the respondent's admission in Suit No,368 that the land was agricultural land, before the trial Court, he took up the stand that it was "ghair mumkin abadi" and thus not part of the estate. Thus, according to the respondent, the appellants failed to prove that they too had the qualification of being owner of the estate. As regards his own status, the respondent relied upon the copy of Register Haqdaran Zameen for the year 1973-74, relating to Chak No,328/JB, in which he was shown as co-sharer in Khata No,187/108, measuring 41 Kanals, 5 Marlas. The trial Court did not advert to the controversy as to whether the land gifted to the appellants was agricultural land or formed part of "ghair mumkin abadi", but returned a finding that the land owned by the appellants fell in a different Patti and not in the one, in which the land in dispute was located. As regards the respondent, the triaL Court came to the conclusion that both the land owned by him as well as the suit land were included in the same Patti. This led the Court to hold that as the land belonging to the appellants was situate in an estate, different from the one in which the suit land was located, they did not have equal right of preemption qua the plaintiff-respondent. Issue No,1 was thus answered against the appellants. As the trial Court's verdict on other material issues was laso against them, the suit was decreed in favour of the respondent.
6. Aggrieved by the judgment and decree of the trial Court, the vendees preferred an appeal in the High Court, which was dismissed vide the judgment impugned herein. The High Court excluded from consideration 4 Kanals land for the reason that the sale-deed relating to it was presented for registration on the date of institution of the suit and registered many days thereafter. As regards the land gifted to the appellants, the learned Judges referred to Jamabandi for the year 1973-74 relating to Khasra No,23/1/3 measuring 3 Kanals, 9 Marlas, out of which 1 Kanal was gifted to the appellants; Mutation No,521 dated 16-11-1974, copy of Khasra Girdawari for the period from Kharif 1970 to 1973 for the land aforesaid; and came to the conclusion that land comprising this Khasra number was not agricultural land, but ghair mumkin abadi and not assessed to land revenue. On consideration of these documents and other material, the learned Judge of the High Court held that the admission made by the respondent in his statement dated 30-10-1978 was factually incorrect and against the entries of revenue record. In other words the respondent's retraction from his admission was accepted. After overall assessment of the oral as well as documentary evidence of the parties, the High Court took the view that land measuring 1 Kanal was not agricultural land at the time of sale and institution of the suit, but bore the character of Sakni land; the appellants, therefore, could not be considered as owner of the estate. Consequently, the decree of the trial Court was upheld but on different grounds.
7. We have heard both the sides at some length and examined the available record. Section 8(2) of the Punjab Pre-emption Act, 1913 empowered the Board of Revenue to declare through a notification that no right of preemption would exist with respect to any land or class of land. Such notification was issued under No,196-B, dated 28th February, 1944, and published in Part I of the Punjab Gazette, dated 3rd March, 1944, which provided that no right of pre-emption would exist in- - "(a) any local area to which the Colonization of Government Lands (Punjab) Act, 1912, has been, or may hereafter be, made applicable; or "
' This notification was, however, rescinded with immediate effect vide Notification dated 19-2-1973, published in Part III of the Punjab Gazette, dated 2nd March, 1973, which is re-produced below:-- "The 19th February, 1973.
' No,662-73/448-I.R.--III-In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Act No,I of 1913) and all other powers enabling it in that behalf, the Board of Revenue is pleased to rescind with immediate effect the Government of the Punjab Notification No,196-R, dated the 28th February, 1944."
8. On behalf of the appellants, it has been argued that the land in dispute is situate in an area to which Colonization of Government Lands (Punjab) Act applied and thus in view of the Notification dated 28th February, 1944, no right of pre-emption existed in respect thereof. It will be seen that in the Notification dated 19th February, 1973, the notification rescinded is described by No,196-R" dated 28-2-1944, and whereas the actual number is "196-B". On the basis of this error in the notification it has been contended that the rescission is ineffective and the Notification dated 28-2-1944 is still intact.
9. There is hardly any merit in this submission. All the particulars of the notification given in the rescission Notification are correct except that alongwith the figure "196" instead of word "B" the word "R" has been printed. It seems to us that appearance of the word "R" in the notification is due to misprint. It is not disputed that no notification under section 8(2) bearing. No,196-R dated 28th February, 1944 was ever issued. We have no doubt that the intention was to rescind Notification No,196-B dated 28th February, 1944. To effectuate the intention of the maker of the Notification, dated 19th February, 1973, and to save it from being reduced to a nullity, the Court can correct the number of the notification and read 196-B instead of 196-R. We would, therefore, read the word "R" as "B" in the notification and reject the argument founded on the inaccuracy in its printing.
10. The learned counsel then assailed the finding of the High Court that 1 Canal land gifted to the appellants was "ghair mumkin abadi", and resultantly its ownership did not confer on them, the status of owner of the estate. We have carefully gone through the record to assess this contention.
There is no controversy that this piece of land formed part of Khasra No,23/1/3, having an area of 3 Kanals 9 Marlas. The learned counsel invited our attention to the entries in the Register Haqdaran for the years 1961-62, 1964-65 and 1977-78. In the first two documents Khasra No,23/1, measuring 4 Kanals, 18 Marlas, is recorded as `nehri' but not assessed to land revenue. In the third document out of 3 Kanals, 9 Marlas, comprising Khasra No,23/1/3, an area of 2 Kanals is shown as "ghair mumkin makan", and 1 Kanal as `nehri', but here too the land is not subjected to land revenue. As observed earlier, the sale took place on 18-10-1973, there is sufficient time lag between the date of the sale and years 1961-62 and 1964-65, to which the revenue record relates, Possibly, the character of the land changed in the intervening period. As regards the Register Haqdaran for 1977-78, it was prepared sufficiently long after the sale. It is, therefore, not safe to rely upon any of these documents. For determination of the classification of the land the Register Naqdaran for the year 1973-74 and Mutation No,521 would be the relevant record. In the copy of the Register Haqdaran Khasra No,23/1/3 with an area of 3 Kanals, 9 Marlas, is described as "ghair mumkin abadi". Further, it is not assessed to land revenue. In the mutation attested, in pursuance of the gift deed, there is a note of the Patwari that the land is located within the limits of Municipal Committee, Toba Tek Singh and the gift has been made for residential purposes. The High Court has mainly relied upon these two documents for adjudication of the character of the land and righlty maintained that 1 Kanal area gifted to the appellants was not possessed of the status of the agricultural land and, therefore, they by virtue of its ownership did not qualify to be the owner of the estate as it ceased to be part of the estate. On this point, we have no reason to differ with the learned Judges of the High Court.
11. It is on the record that on 12-6-1980 the appellants got their statement recorded that they rested their right of pre-emption only on the transaction of `hiba' and abandoned reliance on the sale in their favour of four Kanals land; the respondent's pre-emption suit in respect whereof was then pending. This statement was preceded by an application dated 29-5-1990 to the same effect. It was thereafter that on 19-11-1981 the respondent made statement, withdrawing his suit and simultaneously the appellants confessed judgment in the suit of the rival pre-emptor, namely, Muhammad Abbas, which has already observed on the basis of these statements was decreed. It has been disclosed in the earlier part of this judgment that the suit relating to one Kanal land was dismissed, as withdrawn on the respondent's statement dated 12-6-1979. On the footing of this background of the case, the learned counsel for the appellants endeavoured to build an argument that by the respondent's admission in Suit No,368 to the effect that the land was agricultural and assessed to land revenue, they were induced to give up their reliance on the ownership of 4 Kanals land and invited a decree against them. It was contended that the appellants acted upon the respondent's statement that one Kanal' piece of land was agricultural land and on the faith of the representation made to them they altered their position to their detriment; therefore, he was estopped from retracting his statement. It was submitted that the High Court fell in error to allow the respondent to revoke his admission particularly when it was made in the plaint and was thus conclusive and binding on the respondent.
12. These arguments though apparently attractive are shorn off intrinsic worth for more than one reason. To begin with the admission in the pleading we have carefully perused the plaint in question and are of the view that it does not embody any such admission. When asked to lay hand on the alleged admission, the learned counsel pointed out that the piece of the land sued for has been described in the plaint as "arazi", which according to him impliedly meant that the land was agricultural land. We are unable to subscribe to this line of reasoning. The plaint is to be read as a whole. When read so, in our view it does not convey any such impression as gathered by the learned counsel. Further we find that for the purposes of court-fee and jurisdiction of the Court, the value has been fixed as Rs,5,000, which is sale price of the land, and shows that the land was not assessed to land revenue and the suit was presumably valued under principal, clause (5) of subsection (3) of section 7 of the Court Fees Act. The mere fact that in the plaint the property is described as Arazi by itself does not constitute an admission that it was agricultural land in character and assessed to land revenue. In Muhammad Zahoor and another v. Lal Muhammad and 2 others (1968 SCM R 322) this Court has taken the view that "where it is shown that an admission was made by mistake the Court can permit it to be withdrawn by amendment, even if such admission is made in the pleadings".
13. It is noteworthy that the alleged admission relied upon by the appellants was not made in the suit in hand, but in another suit. In law a party is bound by admission recorded in the pleading in a suit, in which it is filed and not in a subsequent suit. Reference in this connection may be made to para. 821 Vol.1 of Taylor's Law of Evidence (1931 Edn.) wherein it is laid down that:-- "With respect to admission by pleading the law at present seems to be that statements which are contained in any pleading, though binding on the party making them for all the purposes of the cause, ought not to be regarded in any subsequent action as admission."
' This rule has been stated in Monir's "Laws of Evidence", 4th Edn., Vol. At page 679, as under:- " an admission in a pleading is binding only in the proceedings in which it is made and may be shown to be wrong in 'subsequent proceedings."
' The respondent in his deposition dated 23-11-1988 amply explained the mistake suffered by him and the circumstances under which in reply to a question put to him in cross-examination he stated that the land was agricultural in character. The High Court accepted this explanation and rightly found that the admission was factually incorrect and belied by the entries in the revenue record.
14. As regards the estoppel it is well settled that only the party who acts on the representation of another person and changes his position to his prejudice can claim the benefit of rule of estoppel, but where the correct factual position is within the knowledge of the represented or would have come to his knowledge, on making an inquiry as he ought to have reasonably made, the rule of estoppel is pot attracted. From the attending circumstances of the case and the facts appearing on the record we are persuaded to hold that the appellants were not unaware of the true character of the land. Had the land been agricultural land, its sale to them, being violative of the Land Reforms Regulation, 1972, could not have been implemented in the revenue record. The mutation evidencing the sale was sanctioned only because the land was "sakni." The plea of estoppel was thus not available to them.
15. We agree with the High Court that no right of pre-emption was conferred on the appellants on account of gift of one Kanal land. This piece of land has been correctly adjudged as Sakni and thus not part of the estate. The appellants' plea that they were owner of the estate thus stood negated.
Their ownership of 4 Kanals of agricultural land was decidely a second string to their bow but they themselves relinquished reliance on it, and got the suit with regard thereto decreed against them on 1941-1981. It seems to us that the appellants abandoned reliance on their title to this piece of land, which 'was then subject-matter of two pre-emption suits, one brought by the respondent and the other by the rival pre-emptor merely to avoid postponement of the decision of the suit giving rise to the instant appeal. Initially the appellants had relied upon the sale of this land, for improvement of their status. The fate of their defence that they too were owner of the estate, thus depended on the survival of the 4 Kanals' sale in their favour. Under section 28-A of the Punjab Pre- emption Act, unless the suit relating to this sale was decided, the plea raised by the appellants in the other suit could not be adjudicated upon. The combined reading of the appellants' application dated 19-5-1981, their joint statement dated 12-6-1980 and the order dated 12-6-1980 of the Civil Judge, Toba Tek Singh, who was seized of the suit are suggestive of the inference drawn by us. The High Court, however, excluded from consideration the purchase of 4 Kanals land by the appellants for different reasons. There is no controversy that the sale-deed in respect of this land was executed in appellants' favour on 8-9-1974 i.e, a day before the institution of the suit. It was presented for registration on 9-9-1974, but registered on 10-9-1974. In the opinion of the High Court, as the document was registered after the institution of the suit, the transaction was of no avail to the appellants. The view taken by the High Court is untenable. Section 47 of the Registration Act seemingly escaped notice of the learned Judges of the High Court, which provides that a document registered on a date, subsequent to the date of its execution operates G from the date of the execution. Obviously, therefore, the title to the land had passed on to the appellants on 8-9- 1974, and they could justifiably bank on it to oppose the suit filed by the respondent.
16. During his submissions, the appellants' learned counsel pointed out to us that Muhammad Abbas, the decree-holder, did not deposit into the Court the purchase money in compliance with the terms of the decree dated 19-11-1981 and thus his suit stood dismissed with costs, as ordained by Order XXI, Rule 14, C.P.C. In this respect he further drew our attention to the appellants' application dated 10-12-1986 filed before the learned Civil Judge, Toba Tek Singh, for issuance of a certificate as to the deposit of the purchase money into the Court and the report of the Accountant of the office of the District Accounts Officer, Toba Tek Singh, indicating that such deposit was not made and also the Civil Judge's order dated 10-12-1986 made on this report (pages 105 and 106 of the paper book). Reference was made by him to these documents with a view to seek permission to lead additional evidence, to establish that failure of the decree-holder to deposit the amount, in compliance with the decree, had the effect of dismissal of the suit, meaning thereby that the appellants' title to 4 Kanals land was intact, and thus they could fall back on it in support of their claim that they were possessed of the status of owner of the estate. But these documents cannot be taken into consideration, as these do not form part of the record of the Courts below. We, however, feel that for proper adjudication of the controversy falling for determination in this case and to do complete justice between the parties, evidence should be allowed to be brought on the record on the following points:--
(i) Whether Muhammad Abbas, decree-holder, failed to deposit the purchase money into the Court in accordance with the terms of the decree dated 19-11-1981 and consequently his suit stood dismissed;
(ii) In case of dismissal of the suit whether the appellants' title to 4 Kanals land clothed them with the right of pre-emption equal or superior to the one claimed by the respondent.
' Needless to state that the respondent shall have the right of rebuttal.
' In this view of ,the matter, we are unable to uphold the High Court's findings on Issue No,1, but the decision on other issues is not disturbed. This appeal is accepted; the impugned judgment and decree are set aside and the case is remanded to the learned trial Court for decision of the suit afresh, after recording additional evidence, in the light of the directions given above. The parties are left to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.