' The plaintiff present respondent Muhammad Din pre-empted a sale of 127 Kanal and 7 Marlas of land described on the face of the plaint effected by registered sale-deed, dated 16-1-1974 for a consideration of Rs,36,613. The respondents who were seven in number contested the suit which was instituted on 5-6-1976. During its pendency, the defendant No,1 Nawab Din allegedly one half share-holder in the total land, transferred his share in favour of other co-defendants by means of another registered sale-deed.
2. On the pleadings of the parties, as many as seven issues were framed. Issue No,6-A was framed on the claim of the defendants that the plaintiff had no superior right of pre-emption against them.
Issue No,6 related to the effect of the sale by defendant No,1 Nawab in favour of defendants Nos.2 to 7 on the maintainability of the suit. After recording evidence and hearing the arguments, the trial Court found the plaintiff to be an owner in the estate on the basis of Exh.P.2, a copy of Register Haq Daran Zameen. Also on issue No,6 he observed that defendant No,1 admittedly not being an owner in the village, on the principle of Sinker, the defendants Nos.2 to 6, who claimed to be owners in the village were relegated to the position of defendant No,1. Section 21-A of the Punjab Pre-emption Act, 1913 was invoked to decide that defendants Nos.2 to 7 were not entitled to any improvements in the status even after transfer of land in_their favour by defendant No,1 Issue No,6-A was also found in favour of the plaintiffs on the basis of Exh. P.2. Therefore, the suit was decreed subject to payment of Rs,36,613, which the plaintiff had accepted to be real as well as recorded price of the suit land.
3. The present petitioners-defendants failed before the first appellant authority. The Additional District Judge, Kasur on 27-1-1986 rejected all the submissions made before him. While rejecting the appeal, it was inter alia held that the sale in dispute dated 16-1-1984 did not show any specific share of the seven purchasers including defendant No,l. Therefore, in the view of the learned first appellate authority, it was an indivisible sale, and therefore, on the authority of Wazir Muhammad and 3 others v. Abdul Aziz and another 1981 CLC 814, he concluded that defendants Nos.2 to 7 having joined a stranger, the doctrine of sinker will be applied. Reference to section 21-A of the Punjab Pre-emption ,Act, 1913 was also made to hold that the conveyance of the part of the suit land by the stranger defendant No,1 in favour of other defendants Nos.2 to 7 who claimed to be owners in the village being during the pendency of the suit was hit by the mischief of section 21-A of the said Act. The issues with regard to estoppal as well as the objection based upon deficiency in court-fee and the entitlement of the plaintiff to the benefits of section 149, C.P.C. Were also found in his favour. Hence this revision petition.
4. Parties have:been heard.
5. The learned counsel for the petitioners vehemently contends that the plaint in the suit was defective inasmuch as the plaintiff never claimed himself to be an owner in the estate, and therefore, the decision of the suit in his favour on the basis of such claim was totally incorrect. By referring to the provisions as contained in sections 9 and 15 of the Punjab Pre-emption Act, 19134 he asserts that right of pre-emption could be availed only by a person in preference to others if he could in so many words allege and then prove his entitlement in preference to others. Also refers to Order 6, Rule 2 and Rule 7 claiming that a departure from the strict rules of pleadings was not condonable and that the plaintiff even in his cross-examination having admitted to have 'filed the suit as tenant could not succeed against the defendants Nos.2 to 7 who were owners in the village.
In support of his contentions, that no evidence could be brought to prove the plea not made or raised in the pleadings nor could be read in evidence even if some material was placed on record, the learned counsel places reliance upon re: Binyameen and 3 others v. Chaudhry Hakim and another, 1996 SCM R 336 re: Atlantic Steamer's Supply Company v. m.v. Titisee and others PLD 1993 SC 88, Hazrat Fazal Alim Jan v. Ziarat Committee, Mazar Hazrat Jeo Sahib 1997 SCM R 1824, re: Mst.
Fauzia Parveen v. Mst. Sahib Khatoon and others 1988 SCM R 552, re: Amir Shah v. Ziarat Gul 1988 SCMR 593, re: Shahid Mahmood v. Mst. Bashiran Bibi 1998 CLC 1017. It is stated that at best the plaintiff could seek an amendment of the plaint and in absence of such an amendment, his pleadings remained vague and uncertain which could not be made basis for passing of a decree in his favour. Also relies upon, re: Muhammad Malik v. Haji Muhammad Bashir and another 1994 CLC 2020, Re: Raj Muhammad and 2 others v. Munshi Khan and 2 others PLD 1989 SC (AJ&K) 56 and re: Sardar Khan v. Ghulam Sarwar and 2 others PLD 1982 SC (AJ&K) 128, to contend that after the expiry of limitation, the plaintiff could not even seek an amendment to assert a further qualification for pre-empting the sale. On the application of section 21-A, he challenges the finding recorded by the Courts below on the authority of reported judgments cited as re: Hayat Bakhsh v. Mansabdar Khan and others AIR 1935 Lah. 529, re: Muhammad Amin Khan v. Mst. Parveen Ramzan and others PU 1999 SC 218 and re: Muhammad Mujtaba v. Ghulam Ali and others PLJ 1980 SC 217. In view of the learned counsel, after transfer of his share by defendant No,1 in favour of defendants Nos.2 to 7, the defect in transaction was removed and transferees defendants Nos.2 to 7 being owner in the village became at par with the plaintiff against whom no preferential right remained available to him. To support his submission that after the sale by defendant No,1 to defendants Nos.2 to 7 on 21- 9-1974, the plaintiff as well as defendants Nos.2 to 7 became at par, and therefore, the suit was liable to dismissal, the. Learned counsel relies upon 1995 CLC 2016, re: Muhammad Akbar v.
Muhammad Charagh. Further, it is alleged that by not recording independent findings on issues Nos.1, 5 and 6-A, the learned First Appellate Authority had violated the mandatory provisions of Order 41, Rule 31, C.P.C: Lastly it is reported that the plaintiff never claimed himself to be an owner in estate which means owner of a revenue paying land in view of ratio settled in PLD 1989 SC 373(2) re: Abdul Rashid and others v. Khurshid Ahmad and others. The learned First Appellate Authority, according to the learned counsel for the petitioner, also failed to dilate upon issue of superior right of the plaintiff. In this regard he placed reliance on re: Mst. Fatima Bibi and 11 others v. Mst. Rahim Bibi and 3 others 1999 M LD 1026, re: Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568, re: Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173, re: F.A. Khan v. The Government of Pakistan. PLD 1964 SC 520, re: Juma Khan v. Mst. Shamim and 3 others 1992 CLC 1022, re: Amir Bakhsh and another v. Muhammad Ramzan and 3 others 1990 M LD 245, and re: Syed Farzand Raza Rizvi v. Syed Zaheer Mustafa 1988 M LD 463.
6. The learned counsel for the respondents, however, states that the objections now being taken by the defendants are too technical to defeat concurrent findings of facts recorded by the Courts below. By referring to the statement of the plaintiff wherein he asserted to be an owner of the land in dispute, the document Exh.P.2 evidencing that fact and para. 2 (iii) of plaint, the learned counsel claims that the plaintiff successfully introduced himself as an owner in the village both in the pleadings as well as in his evidence. Therefore, the contentions made in this regard at this belated stage of revision cannot be entertained. Also supports the findings of the Court below with regard to the application of principle of sinker as well as the invocation of provision of section 21-A of the Punjab Pre-emption Act, 1913.
7. After considering the rival contentions, I will readily agree with the learned counsel for the respondents that in the facts and circumstances of the A case, the concurrent findings of fact by the Courts below cannot be disturbed. The reference by the learned counsel for the petitioner to sections 4 and 15 of the Pre-emption Act is pertinent. Also he is correct in pointing out the rules of pleadings and their adherence. However, the cases relied upon have been cited at the bar after assuming that the plaintiff had failed to comply with the basic rules of pleadings, and therefore, his oral and documentary evidence could not even be looked at. I will not agree. In the first instance the narration in sub-para. (ii) of para.2 of the plaint, sufficiently crystalises- his claim. In that sub- para., the plaintiff stated that the disputed land was contiguous to land owned. By him. Earlier in sub-para (i) he claims that he is lessee and is in possession of the land since 1965 and that the defendants were not owners of land in the village. The suggestion to him if he had filed the suit as a tenant and an affirmative reply referred only to one of his ground for claiming preferential right of pre-emption (sic). That independent and further claim to show right to pre-empt was also not mutually destructive to other claims. At best we can say that the plaint was not happily drafted. In such situation, it is established view of this Court that the pleadings by Mufassal lawyers should be seen with a condoning eye. Issue No,6-A by its wording placed the burden of proof upon the defendants. However, the plaintiff when appearing as P.W.1 and claiming his ownership in the estate both orally as well as on the basis of document try evidence was not even put a suggdstion that he was not owner in the suit land. He was rather put a suggestion that the land in dispute was not contiguous to his land, D.W.1 admits that the plaintiff is an owner of 8/9 squares of land in the village. D.W.2 does not know anything about the fact if any of the parties was an owner in the village. The defendant Easa as D.W.3 admits that the plaintiff is am owner in the village. Also admits that before the transaction in question, defendant No,1 was not an owner in the village though he claims that rest of the defendants were owners in the village at the time of the sale in question.
8. With all these facts clearly admitted on record. I do not find any fault with the orders of the Courts below that the plaintiff had succeeded in proving his superior right against the defendants Nos.2 to 7. Also by joining Nawab Din defendant No,1, the defendants Nos.2 to 7 were hit by the mischief of the doctrine of sanker. I am also in agreement with the findings of the Courts-below that transfer of his share by Nawab Din in favour of other defendant during the pendency of the suit did not effect the claim of the plaintiffs' and that provisions of section 21-A in the facts was clearly attracted.
9. The case-law relied upon on the duties of an appellate Court to conform to the provisions of Order 41, Rule 31, C.P.C. Is also distinguishable inasmuch as again it has been assumed that these provisions were not complied with. Factually it is not correct. Thu learned first appellate authority while discussing issues Nos.1, 5 and 6 had expressly recorded that he agreed with the finding of the trial Court for the stated reasons. It is an established rule that where an appellate Court is to maintain the order of the lower forum for similar reasons, then the reasons which earlier discussed by the lower form need not be repeated. The order of the-,first appellate authority from whatever angle seen cannot be described as violative of the aforesaid provisions of the Court.
10. The learned counsel for the petitioner has also relied upon re: Shah Gul and others v. Mst.
Shamim Akhtar and others 1990 SCM R 110, re: Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and re: Muhibullah Khan v. Sadiq Khan 1986 SCM R 270. He claims that the Appellate Court having failed to record independent findings on issues Nos.1, 5 and 6-A coupled with the fact that there was a misreading and non-reading of evidence, this Court can very well-interfere with the impugned order. The cases relied upon again pre-suppose that the first appellate authority had not recorded any finding on the aforesaid issues or that there has been a misreading or non- reading of evidence. As observed earlier, the first appellate order does not appear lacking in any manner. Also neither any misreading nor any non-reading of evidence has been pointed out by the learned counsel for the petitioner.
11. The recent view of the Supreme Court of Pakistan is evident from the findings recorded by their Lordships in 1997 SCM R 1139 re: Abdul Hakeem v. Habib Ullah and others. While discussing jurisdiction of this Court under section 115, C.P.C., it was held that while examining the legality of a judgment and decree, the finding of fact, however, erroneous could not be upset at re-appraisal of evidence and by asking a different view thereof. Such finding of fact in view of their lordships could only be disturbed by the High Court under section 115, C.P.C., if the. Courts below had either misread the evidence on record or while assessing or evaluating evidence had omitted from consideration some important piece of evidence.
12. Nothing on the record suggests the availability of any of the aforesaid condition to warrant exercise of revisional jurisdiction. It shall accordingly be declined.
13. Petition rejected.