' MUHAMMAD RAFIQ TARAR, J.---The petitioners seek leave to appeal from the judgment of a learned Single Judge of the Lahore High Court dated 4-11-1992 whereby their Civil Revision No, 569/1992 against the judgment of the learned Additional District Judge dated 30-3-1992 affirming that of the Executing Court dated 4-1-1990, was dismissed.
2. The brief facts of the case are that one Imam Din sold land measuring 41 Kanals and 7 Marlas including Khasra Nos. 552/2, 559 and 561 (measuring 18 Kanals) to Barkat Khan, predecessor-in- interest of the petitioners, vide sale-deed dated 20-11-1969. Ghulam Mustafa respondent filed a suit to pre-empt the sale and during its pendency applied for amendment of the plaint alleging that the village had undergone consolidation operation and the vendees/defendants had been allotted land measuring 86 Kanals 6 Marlas comprising Khasras Nos. 314, 1872, 1933 to 1940 and Khasras Nos. 1941, 1942 and 1943 (measuring 18 Kanals and 8 Marlas). He prayed for' decree for possession of 879/1726 share of the land so allotted. The amendment was allowed and suit was decreed.
Vendees/defendants failed throughout up to the Supreme Court.
3. During the execution proceedings both the parties made several applications including an application by decree-holder respondent herein for amendment of the decree on the basis of consolidation operation in the estate whereby the judgment-debtor (petitioner herein) was allotted Khasra Nos. 314, 1872, 1933 to 1940 measuring 67 Kanals 18 Marlas. This application was allowed after contest vide order dated 5-5-1987 directing the decree-holder to file amended plaint "so as to amend the decree sheet". This order was not further challenged and had attained finality.
4. Thereafter the petitioner herein moved an application for dismissal of the suit in the Executing Court on the ground of partial pre-emption and change in complexion of the suit which was allowed and the suit was dismissed on 23-9-1987. This order was however set aside in appeal by the learned Additional District Judge on 18-3-1989 and case was sent back to the Executing Court with a direction to "determine the property allotted to the respondent in consolidation operation in lieu of suit land decreed in favour of the appellant" and to finalise the execution proceedings within one month. The Executing Court examined the Patwari who, with reference to consolidation record, stated that Barkat son of Nathu (predecessor of the petitioners herein) was owner of 86 Kanals and 6 Marlas of land which included the land allotted in lieu of the land as described in the decree. The learned Civil Judge allowed the application for amendment of the plaint and decree vide order dated 4-1-1990 holding that in law the pre-emptor could follow the land allotted to the petitioners in consolidation proceedings. This order was maintained in appeal vide order dated 30-3-1992 directing the Executing Court to fmalise the execution after inviting the amended plaint and decree sheet accordingly. A revision filed by the petitioners resulted in the impugned judgment. Hence this petition.
5. Learned counsel for the petitioners contended that the Courts below have failed to apply their mind in allowing the respondent to amend his plaint during the execution proceedings and he was not entitled to any relief having changed the complexion of the suit attracting principle of partial pre-emption. Similar submission made before the High Court was repelled with the following observations:-- "There can be no doubt that the respondent is entitled to follow the land allotted to the petition in lieu of the land, subject-matter of the suit. It appears that it was u case of misdescription of property and that the respondent had been led into that misdescription by the details provided by the then Revenue Patwari. The true position was fully brought out in the evidence before the executing Court. As has been seen above, the respondent had applied for the amendment of the plaint and the decree to enable him to correctly describe the land. This he was allowed to do by the order of the learned Civil Judge dated 5-5-1987 which was passed after due contest. This order was allowed to become final. As this was in execution proceedings and was an appealable order, learned counsel for the respondent was right in contending that the petitioners could not reagitate the same question as they did. The subsequent proceedings were in executing of the decree passed in accordance with that order. On this short ground, therefore, the petition must fail.
Otherwise too, it seems to me that what the learned Civil Judge did by making the order dated 4-1- 1990 and in allowing the execution to take place in accordance with the description of the land, as detailed in the respondent's application and the amended plaint, was substantial justice, for it was established beyond doubt that the true description of the property was as contained in the respondent's application decided by the order of the learned Civil Judge dated 5-5-1987, in amended plaint dated 14-5-1987 and in the application dated 15-12-1985."
The learned counsel has not been able to point out any infirmity or legal flaw A in the order of the High Court calling for into reference by this Court. The petition is, therefore, dismissed.