GUL ZARIN KIANI, J. -Solitary point surviving for decision in the second appeal was, whether the plaintiff sued for partial pre-emption of the sale and was rightly non-suited in appeal by learned District Judge, Sialkot, on 3-12-1969, and, if it was found otherwise that the plaintiff intended to sue for pre-emption in respect of the whole of the land conveyed in the registered sale-deed, judgment given in appeal deserved to be quashed and that of the trial Court entitled to be restored.
2. Facts lie within a short compass. By a sale-deed executed on 19-3- 1966, and, registered on 22- 3,-1966, Abdul Ghani and his two sisters Mst. Roshan Bibi and Mst. Resham Bibi sold five kanals of agricultural land out of Khata No. 26, situate at Mauza Chak Kala of Tchsil, and, District Sialkot for a consideration of Rs. 2,(XX)/- to Ali Ahmad. Muhammad Ghani as plaintiff claimed pre-emption in respect of the above sale. He asserted his superior right of pre-emption on the grounds of being a collateral to the vendors, a co-owner in the joint Khata and owner of the estate. Pre-emption suit was instituted on 18-3-1967. Vendee of the land resisted the suit. He contested the plaintiffs right to pre-empt the sale amongst other grounds, on account of partial pre-emption. Contentious pleadings gave rise to as many as seven issues including that of relief. Issue No. 3 covered the point regarding plea of partial pre-emption, it was resolved in favour ol the plaintiff by the trial Court but was found against him in the lower appellate Court. So, the question would be, whether the pre-emption suit embraced the whole transaction of sale or a part of it to attract the principle of partial pre-emption. Upon careful reading of the plaint and considered analysis of the evidence, 1 was left in no doubt that the plaintiff intended and did pre-empt the sale of the entire land conveyed in the registered sale-deed dated 22-3-1966 marked Ext. D. I. It showed sale of five kanals of land from Khasia Nos. 52, 154, 155, 160, 161, 162, 352/163, 164, 165 comprised in khalaun Nos. 48 to 54 of khewat No. 26, recorded in the jamabandi for the year 1963-64, and situated at Mau/.a Chak Kala of Tehsil and District Sialkot. In the plaint of the pre-emption suit, plaintiff gave lull description of the land sold through the registered sale deed. The area described was five kanals; numbers of khataunis and khata were correctly noted in para 1 of the plaint, but khasra No. 52 came to be omitted from it, while number of other khasras were correctly given in the aforesaid para of the plaint. Reference to the date of sale-deed and consideration for the sale were also correctly noticed. At the end of the plaint, a note was appended that the plaintiff claimed pre-emption in respect of the entire land sold through the registered sale: deed. The vendee admitted sale of five knals of land in his favour, through the registered sale-deed, but made a mountain out of a mole- hill of the omission of khasra No. 52 from the plaint and described it a case of partial pre-emption and look an exception to maintainability of the pre-emption suit on this score. Learned District Judge appeared to agree with this hyperbolical technical view of the record and found it to be a case of partial pre-emption by the plaintiff. Unfortunately for the contesting respondent, 1 could not subscribe to his view and uphold it upon any rational view of the record. Plaintiff intended to claim preemption in respect of the entire transaction evidenced by Ext. D. 1 and expressed his unequivocal mind in the plaint about it. However while drafting the plaint, the Advocate omitted to mention one khasra number, but added a note at the end of the plaint for comprehending entire transaction of sale in the pre-emption suit. It appeared to be a clear inadvertent omission of pen which did not materially impinge upon the merits of the cause. At the most, it was an error respecting description of the land sold and did not tantamount to leaving out a portion of the land or exclude it from the ambit of the claim for pre-emption, in giving effect to the plea of partial pre- emption, learned District Judge made fetish of a minor technicality regarding description of the properly sold. In my view, nothing material turned on the omission. The Court could have easily rectified the error without infringing any principal of law favouring the vendee. Inherent powers to correct errors respecting description of the property were readily available for exercise at any time to prevent miscarriage of justice. A fair view of the plaint led to an irresistible conclusion that it covered the entire land conveyed in the registered sale-deed and by no stretch of imagination, it could be held to be a case of partial pre-emption. View taken in the lower appellate Court was clearly incorrect. As far the superior right of pre-emption possessed by the plaintiff, Ext. P. 1 left no doubt that he was a co-owner in the joint khata, out of which the land- in-dispute was sold to the vendee. Learned counsel for the respondent made a vain attempt for refuting it, though the point was not agitated in first appeal by the vendee. Purchase price had since been deposited in time fixed in the decree of the trial Court.
3. In view of aforesaid, appeal is allowed with costs. Impugned and decree of learned District Judge dated 3-12-1969 are set aside and those of the trial Court restored to take effect in accordance with law.