ABDUL HAMEED DOGAR, J.- This petition for leave to appeal is directed .Against the judgment dated 22.5.2001 of learned Single. Judge in Chamber of Lahore High Court, Lahore passed in RSA No. 96 of 1985 whereby the same was dismissed with costs.
2. The facts leading to the filing of the petition are that the land in dispute was an evacuee property, held by Mst. Sardaran Bibi and other as quasi-permanent allottees under Rehabilitation Settlement Scheme; they sold away their right, title and interest in the land to Nazar Muhammad, the petitioner, ostensibly for Rs.8000/- through registered sale-deed dated 9.6.1964. On 23.2.1965 the respondents filed a suit for pre-emption stating therein that the sale price was actual Rs.4000/-. In the written statement the pleas were controverted and an objection was raised that the land being evacuee property was not pre-emptiable under the law. Learned Civil Judge, Hafizabad dismissed the suit holding that the land was not pre-emptiable, however, the issue with regard to superior right of pre-emption was decided in favour of plaintiffs/respondents.
3. The respondents preferred an appeal and the Appellate Court reversed the findings and held that the land .In question was not an evacuee property and was thus pre-emptable and remanded the matter to the Trial Court for retrial on merits. Petitioner-Nazar Muhammad challenged the remand order through FAO No. 9 of 1968 in the learned High Court and the learned Single Judge upheld the finding that the suit land was pre-emptiable but set aside the order of remand to the Trial Court and directed the Appellate Court to decide the case on merits.
4: The petitioner-Nazar Muhammad assailed the said order through LPA No. 21-C/1971 whereby the judgment of learned Single Judge passed in FAO No. 9 of 1968 was upheld vide judgment dated 12.3.1974 who remanded the matter to the learned District Judge, Gujrat. However, after keeping the matter for sufficient time the learned District judge, Gujrat transferred the appeal to learned Additional District Judge, Gujrat for disposal who dismissed the appeal on the ground of limitation being barred by time on 2.6.1981. The respondents challenged the same through C.R. No. 1082/1982 before the learned High Court which was accepted and the matter was again remanded to learned District Judge, Gujranwala to decide the appeal fresh after allowing reasonable opportunity to the parties to produce evidence in support of their respective contentions. The.
Learned Appellate Court after examining the witnesses of the parties came to the conclusion that appeal was not barred by time. The said judgment dated 15.3.1985 was assailed through second Appeal No. 96 of 1985 before the learned Lahore High Court, Lahore from which the impugned judgment has arisen. The petitioner moved an application under Order 6, Rule 17, CPC for amendment of the written statement asserting therein that since respondents have abandoned earlier khasra Nos. And also gave wrong description thereafter he must be allowed to make necessary amendments which will not change the nature of the case.
5. The learned counsel for the petitioner, inter alia, raised the following points for grant of leave to appeal:-
(i) The appeal filed by the respondents before the learned Appellate Court was barred by limitation. According to him, the copy was applied at Hafizabad and the recor shows that the same was not returned to the respondents and it was much after the period of limitation that the same was filed before the Copying Agency at Gujranwala when the appeal had already become barred by time. Instead of appreciating the above, the plea was taken that the Copying Agency of Hafizabad sept the application for grant of copy directly to the Copying Agency at Gujranwala which was contrary to the record on the file.
(ii) That it was a clear case of partial pre-emption as not only certain khasra Nos. Were omitted but also in the prayer instead of Rs.8000/- the sale price fixed in the registered sale-deed, the plea was taken that decree be passed for Rs.4000/-. The Rule of partial Pre-emption has not been allowed by the superior Courts. In support, he cited cases of Samar Qand and another v. Muhammad Yunis (PLD 1972 Pesti,. 115), Ghulam Muhammad and 3 others v. Khushi Muhammad and another (PLD 1973 SC 444).
The contentions raised above in the light of the case-law referred (supra) require consideration at length hence leave to appeal is granted.