' This judgment will dispose of Civil Revision No,1158-D of 1992 and Civil Revision No,1159-D of 1992 having been brought by same petitioners against the same respondents and arising out of common judgment passed in consolidated suits.
2. Respondents Nos. I and 2 filed Suit No,66 of 1979 for possession of suit land through superior right of pre-emption. It was pleaded in para.5 of the plaint that they were owners in the estate and as such have superior right of pre-emption. Allah Ditta predecessor-in-interest of the petitioners alongwith Sana Ullah respondent No,4 also filed a Suit No,255 of 1979 for possession of the same land on the basis of superior rights of pre-emption. They also pleaded in para. 5 of the plaint that they were owners in the estate (Mahal). They also asserted that they were "pattidars". The trial Court consolidated the two suits and directed impleading of the rival plaintiffs as defendants in the suits. Proceedings were held in Suit No,66 of 1979. For the convenience of reference respondents Nos.1 and 2 will hereinafter referred to as first pre-emptors" while Allah Ditta and Sana Ullah as "rival pre-emptors". Muhammad Ashraf respondent No,3 is vendee in both cases. Apparently, as Sana Ullah has not joined, he has been impleaded as pro forma respondent No,4 in these revisions. The suits were tried on number of issues. However, it is issue No,5, which is the crucial issue. This issue deals with the superior right of pre-emption of rival pre-emptors inter se as also qua the vendee- defendant. Vide judgment dated 31-5-1982 the trial Court allowed the first right of pre-emption to Sharif etc., first preemptors". In default of the "1st pre-emptors", the trial Court also granted the decree for possession to the "rival pre-emptor". The "rival pre-emptors" challenged the decree of the trial Court by filing two appeals. The contest was confined to Issue No,5. The Appellate Court confirmed the finding of the trial Court and dismissed the appeals without any order as to costs.
3. It is strenuously contended by Mr. Zafar Ali Shah, Advocate appearing for the petitioners that both the Courts have erred in holding that "1st pre-emptors" have a superior right as they have proved themselves to be owners in 'Patti Burkhudar Bhai Khan'. By referring to the plaint, he emphasized that the "1st pre-emptors" never claimed the right of pre-emption on the basis of being Pattidar. All they stated in para.5 was that they were owners in 'Mahal' and as such have superior right of pre-emption over the vendee who is not an owner in the village. He has relied bn Lal Khan v. Ghulam Muhammad (1973 SCM R 252) in support of this proposition. He urged that "1st pre-emptors' have at no stage sought amendment in the plaint in any case such an amendment could not have been allowed after the lapse of the period of limitation. He has also argued that notwithstanding the above plea, the "1st preemptors" lost the superior right on the basis of being Pattidar as they associated Messrs Rehmat Khan, Muhammad Nawaz and Muhammad Malak non- Pattidar with them. He claims that deletion of these non Pattidars at the stage of arguments on 4- 4-1982 could not save the "1st pre-emptors" from sinking. It is also submitted that there are no recognized Patties in the village. It is further argued that Allah Ditta predecessor of the petitioner has been found to be a Pattidar by the trial Court but was denied the decree as Allah Ditta associated Sana Ullah respondent No,4 a non-Pattidar. The argument is that if the petitioner was punished by applying the principle of sinker, the "1st pre-emptors" also deserved the same penalty.
In reply, it has been argued that the Pattis do exist in the village and the two Courts have rightly recognized the same. It is claimed decree in favour of "1st pre-emptors" has been correctly passed.
4. It may be noticed that the petitioners have also filed an application under Order 6, rule 17, C.P.C.
For amending the plaint so as to include the assertion of being owners in the Patti and Khata.
During the course of hearing, Mr. Zafar Ali Shah did not utter anything in support of the application. I am afraid, it otherwise cannot be permitted at this stage as, the period of filing the suit expired about two decades ago. It is settled law that the pre-emptor cannot add to his qualifications by amending the plaint beyond the period of limitation. This application, therefore, is rejected.
5. The trial Court found Allah Ditta to be Pattidar but condemned him for associating Sana Ullah non-Pattidar as co-plaintiff. In their suit, they had claimed the superior right being owner in the Patti. "1st preemptors" never asserted their superior right on the basis of being Pattidar. They could not lead evidence to something not pleaded. In any case the Court could not have granted them the decree on the basis of a plea not asserted in the plaint. Assuming that they could be found Pattidar even though not so pleaded, they ought to have been sunk for having associated with them Messrs Nawaz, Rehmat and Malak, nonPattidar. Their deletion at the argument stage of 4-4- 1982 could not save the penalty. The two Courts, therefore, clearly erred in holding that "1st pre- emptors" were entitled to decree being Pattidar. As best they are owners in their estate and it is this status which they pleaded in para. 5 of plaint.
6. Both the Courts have held the "rival pre-emptors" to be owners in the estate. If both sets of pre- emptors are equally placed, then in terms of section 17(c) of Punjab Pre-emption Act, 1913 the suit land has to be divided among them in proposition to the shares, which they would take if the land or property were common land in the estate. It is well-settled that each landowner shares the common land in accordance with his ownership. According to the documents Exhs.D.3, D.4 and D.5 "rival pre-emptors" are owners of 232 Kanals and 10 Marais. The suit land is about 82 Kanals and 9 Marlas. Share of the "rival pre-emptors", therefore, will come to 77 Kanals and 11 Marlas. The remaining 4 Kanals and 18 Marlas will go to the "1st pre-emptors".
7. These two revisions are, therefore, allowed. The impugned decree is set aside and a fresh decree is directed to be passed in favour of the "rival pre-emptors" to the extent of 77 Kanals and 11 Marlas on payment of proportionate price of Rs,1,62,000. The amount shall be deposited on or before 12-11- 2001 failing which their suit shall stand dismissed. Decree will also provide that. "1st pre-emptors" shall get the remaining land of 4 Kanals and 18 Marlas on deposit of proportionate amount of Rs,1, 62,000 up to 12-11-2001. Both the pre-emptors will be allowed to deduct the Zar-e-Punjam plus any other deposit made already. If the "1st pre-emptors" have deposited the amount under the decree, they need not make a fresh deposit. Parties are left to bear their own costs.