' The predecessor-in-interest of the respondents namely Raees Qabil pre-empted the sale of land measuring 102 Kanals made vide Mutation No,191 dated 5-3-1968. The superior right of preemption was asserted on the basis of being co-sharers in the Khata.
2. The appellant/defendant controverted the contentions of the plaintiff. The learned trial Court recorded oral and documentary evidence of the plaintiff. The appellant produced only three witnesses and as he was not able to produce his remaining evidence despite many opportunities, his evidence was closed. Relying upon Exh.P.1, copy of Jamabandi and mutation Exh.P.2., the learned trial Court held that the plaintiff was co-sharer in the Khata and overruling the objections relating to the jurisdiction and limitation, decreed the suit vide judgment and decree dated 20-101977.
3. The appellant preferred an appeal which was dismissed vide judgment and decree, dated 29-4- 1978. Regular Second Appeal No,31 of 1978/BWP., was then preferred which was accepted by this Court vide judgment dated 24-5-1980 and the case was remanded to the learned first Appellate Court to decide the appeal afresh.
4. After remand, the order of the learned trial Court whereby the evidence of the appellant was closed was maintained. Upon the issue of superior right of pre-emption, Exh.P.1, copy of the Jamabandi for the year 1966-67 was considered and it was found that the original respondent was holding an interest in the Khata No,21/19 to the extent of 44-1/2 share. The contention raised before the learned first Appellate Court on behalf of the appellant was that the Khata in question comprised of evacuee and non-evacuee interest. According to him, the evacuee interest was transferred vide RL.II Nos.17 and 23 to one Anwar Adil whereafter the said evacuee field numbers would be deemed to comprise a separate Khata and the pre-emptor would not be considered to be a co-sharer in Khata No,21/19. Thus, notwithstanding, that the pre-emptor had proved to be an owner in the estate, yet in view of the provisions contained in para. 19 of the Rehabilitation Settlement Scheme, 1959, he could not specifically claim a superior right of pre-emptions on the specific ground of being co-shareein the Khata.
5. The respondents moved an application before the learned first Appellate Court for permission to amend their plaint to include the specific claim of superior right of pre-emption being co-owner in the estate. The learned first Appellate Court allowed the said application with the result that the respondents succeeded in proving their superior rights of pre-emption. Consequently, the first appeal was dismissed vide judgment and decree dated 11-7-1981 and the decree for pre-emption passed in favour of the respondents was maintained.
6. The learned counsel for the appellant has mainly contended that the application under Order VI, rule 17, C.P.C. For amendment of the plaint could not have been allowed. According to him, the respondents/plaintiffs had filed the suit for pre-emption on a specific claim of being co-sharer in the Khata. As, after the transfer of the evacuee share of the Khata, the same stood partitioned, the respondents could not succeed on this ground. According to him, by allowing amendment, the entire complexion of the suit had changed and such an amendment was in violation of the provisions and spirit of Order VI, rule 17, C.P.C. The learned counsel also contended that both the learned lower Courts had erred in misreading the evidence on the record.
7. On the other hand, the learned counsel for the respondents fully supported the impugned judgment of the learned first Appellate Court and contended that even if the superior right of pre- emption could not be legally established as regards being co-sharer in the Khata, yet by virtue of Exh.P.1, the ownership of the respondents of the estate stood proved and as the appellant had no such corresponding qualification, the suit was rightly decreed by both the learned lower Courts. He also submitted that the amendment did not alter the nature of the suit.
8. Arguments have been heard and record perused.
9. The respondents have produced the copy of Jamabandi Exh.P.1, according to which, the predecessor-in-interest of the respondents was shown to be a co-sharer in the disputed Khata. On account of the fact that the said Khata comprised of evacuee and non-evacuee interest, it stood partitioned upon the transfer of the evacuee share under para. 19 of the Rehabilitation Settlement Scheme, 1959. Even though, the respondents were not able to prove their right as being co-sharer in the Khata yet on the basis of Exh.P.1, they were able to prove their ownership of the estate. When a pre-emptor succeeds in establishing that he is an owner of the estate while the vendee has no such qualification, he is bound to succeed upon the strength of such superior right. It is upon the strength of the same document i,e, copy of the Jamabandi Exh.P.1., that the respondents are shown to be owners of the estate. Being co-sharers in the Khata was a more specific qualification. Even if such right is not proved on the basis of a legal eventuality, it does not denude a pre-emptor from exercising his superior right on the basis of being a co-owner of the estate.
10. In view of the foregoing, there is no force in the submission of the learned counsel for the appellant that the amendment allowed by the learned first Appellate Court in permitting the respondents to include the claim of co-ownership of the estate would amount to alter the character of the suit.
11. Both the learned lower Courts have concluded that on the basis of the evidence on the record, the suit for pre-emption was within time. The learned counsel for the appellant has not been able to point out any misreading of material evidence on the record. Resultantly, this appeal has no force which is hereby dismissed. No order as to costs.