' The appellants purchased the suit land from one Mehruddin son of Karam Elahi vide registered sale-deed, dated 25-6-1970 The respondent claiming to be a nephew of the said vendor and a co- sharer, filed a suit for possession of the suit land by preemption. The appellants filed a written statement wherein they pleaded that the plaintiff joined the sale as well as the negotiation preceding the sale and because of the said reason he has waived his said right of pre-emption.
The learned Trial Court framed issues. Relevant being issue No,3, was:- "(3) Whether the plaintiff has waived his right of pre-emption? O.P.D."
' The learned Civil Judge recorded evidence. He found that the respondent has a superior right of pre-emption. He also found that the appellants in fact paid Rs,4,000 as the sale price of the land to the vendor. On issue No,3 the learned Trial Court recorded a finding that the respondent has waived his right of pre-emption. As a result of this finding, the suit was dismissed vide judgment and decree, dated 19-1-1977. The respondent filed. An appeal. The learned Additional District Judge reversed the findings of the learned Trial Court on issue No,3 and affirming the findings on the other issues passed a decree for possession of the suit land by possession in favour of the respondent on payment of Rs,4,000 vide judgment and decree, dated 27-9-1977.
2. Mr. Jahangir A. Jhoja, learned counsel for the appellants argues that the evidence has been misread by the learned Additional District Judge while reversing the findings of the learned Trial Court on issue No,3. Ch. Muhammad Ishaque learned counsel for the respondent, on other hand, supported the impugned judgment.
3. I have gone through the records of the learned Trial Court with the assistance of the learned counsel for the parties. In the very beginning Mr. Muhammad Ishaque drew my attention to the written statement filed by the appellants and pointed out that the only allegation made by the appellants was that the respondent was present at the time of negotiation and the sale.
Contention of the learned counsel is that it was not pleased by the appellants that the land was offered for sale to his client and that he had refused to purchase the same. According to the learned counsel, the appellants could not have led evidence in support of a plea which was not taken in the written statement. Learned counsel for the appellants was not able to meet the argument. The said argument of the learned counsel for the respondent is supported by the principle of secondum allegata et probata as manifest in Order 6, Rule 7; C.P.C. It was observed by the Supreme Court in the case of Binyameen and 3 others v. Ch. Hakim and another (1996 SCM R 336) "a party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law."
Be that as it may, I have gone through the evidence on record. Muhammad Hussain was examined as P.W.2. He stated that the negotiations in the sale took place in his presence and that the respondent was not present. It was not even suggested to him in the cross-examination that the respondent was present at the said time. D.W.1 a son of the vendor states that he asked the respondent that he can purchase the land but the respondent replied that he has no money to purchase the same. This witness also insisted that respondent was also present at the time of registration of sale. D.W.4 is one of the appellants, who states that Mehruddin vendor asked the respondent to purchase the land, as he has a superior right of pre-emption, but the respondent replied that he does not have money and he is selling his own land. In cross-examination he states that respondent was not present at the time of registration. In my opinion, the learned Additional District Judge correctly observed that there was a material discrepancy in the statements of the said witnesses and he rightly disbelieved them. Besides as already stated above, the objection of the learned counsel for the respondent is not without force that the said evidence was led by the appellants in deviation of the pleadings, I also tend to agree with the learned counsel for the respondent that the plea, as taken in the written statement, even if accepted to be true, does not constitute waiver of the right of prepetition. He relies on the case of Abdul Rashid v. Bashir and another (1998 SCMR 808) and Jampari v. Muhammad Abdullah (1992 SCM R 786). The learned counsel for the appellants places reliance on the observation of the Supreme Court in the case of Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403). The said case is clearly distinguishable. In the said case it was specifically pleaded by the vendee that the vendor had first offered the land for sale to pre-emptor through a 1Punchayat, but the latter had refused to buy it. This plea was proved by producing six D.Ws. Besides the question in the said case for decision was as to the point of time at which a right can be waived. Apparently the said plea raised by the vendee on its merit was proved, as a fact, but the trial and the first Appellate Court did not accept the plea on the ground that a notice under section 19 of the Punjab Pre-emption Act, 1913 was not served by the vendor. It was held by the Supreme Court that intentional relinquishment of a right can be effected. I may point out here that the case of Naseer Ahmad supra was taken note of in the case of Abdul Rashid supra and it was held that the presence of the plaintiff at the time when the bargain was struck, was not enough to draw an inference of acquiescence in sale. No other point was urged. The R.S.A.
Is dismissed with costs.