GHULAM ABBAS and anothers vs MURID HUSSAIN

' MUHAMAMD JEHANGIR ARSHAD, J.---The petitioners are aggrieved of the judgment dated 25-9- 1995 passed by learned Additional District Judge, Kallurkot Camp at Bhakkar whereby the appeal filed by respondent against judgment and decree of learned trial Court dated 9-6-1992 dismissing his pre-emption suit was allowed and the pre-emption suit filed by the respondent was decreed on payment of sale price, till 25-10-1995.

2. The facts briefly stated are that land measuring 3 Kanals and 10 Marlas was owned by Messers Ghulam Muhammad and others sons of Nathu caste Jat which was purchased by the petitioners for a sum of Rs.2,000 through Mutation No.64 dated 24-1-1982. Respondent claiming himself as a collateral of the vendors namely Ghulam Muhammad and others sought to pre-empt the said sale by filing plaint on 24-1-1982, alleging therein that the property was in fact sold for a sum of Rs.1,000 but in order to defeat his right of pre-emption sale price was shown as Rs.2,000 whereas the market value of sale price was Rs.1,000 which was in fact agreed and paid. Further submitted that the sale took place in his absence, hence the suit was filed on final refusal of the petitioners. The said suit was contested by the present petitioners who through their written statement dated 28-7- 1983 denied the respondent/plaintiff's alleged right of pre-emption. The petitioners/defendants also raise certain preliminary objections regarding locus standi of respondent; non-applicability of the Pre-emption Act on the disputed sale; suit being time-barred and also prayed for special costs of Rs.5,000. Further on merits it was alleged that the property in dispute was in fact purchased for Rs.2,000 which was the market value of the disputed property at the time of sale. Keeping in view the divergent pleadings of the parties, the learned trial Court framed the following issues and invited the parties to lead their respective evidence:- ' ISSUES:

(1) Whether the plaintiff has got no cause of action? OPD

(2) Whether the suit-land is not preemptible? OPD

(3) Whether the plaintiff's suit is time-barred? OPD

(4) Whether the plaintiff's suit is frivolous, baseless and the defendants are entitled to special costs of Rs.5,000. OPD

(5) Whether the sum of Rs.2,000 was actually fixed and paid in good faith? OPD

(6) If Issue No.5 is not proved what was the market value of the suit-land at the time of its sale? OP- Parties.

(7) Whether the plaintiff has superior right of pre-emption? OPP

(8) Relief.

2. The respondent/plaintiff in support of his claim produced one Samundar Khan P. W.1 and closed affirmative evidence by tendering copy of Shajra Nasab P.1, copy of Parcha Khatoni P.2 and P.3 and Khasra Girdawri P.4. The respondent/plaintiff appeared himself as P.W.2 in affirmative and rebuttal evidence after recording the petitioner's evidence. On the other hand, petitioners/defendants produced one Ghulam Muhammad as D. W.1, Ghulam Raza one of .

The petitioners appeared as D.W.2 and by tendering documents Exh.D.1 to Exh.D.5, they closed their evidence. On the conclusion of trial, the learned trial Court on 11-11-1985 originally decreed the suit.

However, on an appeal filed by the petitioners/defendants the case was remanded by the learned Appellate Court on 11-5-1986 to the learned trial Court with the direction to summon Halqa Patwari and after examining him as Court Witness to decide the same afresh. On remand the suit of the respondent was dismissed by the learned trial Court on 19-6-1988 in the light of law declared by the Honourable Supreme Court of Pakistan in Sardar Ali's case (PLD 1988 SC 287). On appeal filed by the respondent the case was again remanded on 28-7-1991 with the direction to decide the suit in accordance with law, most probably on the ground that since the suit of the respondent was once decreed in his favour prior to 31-7-1986, hence the matter had to be decided under the Punjab Pre-emption Act, 1913. On remand the learned trial Court vide judgment and decree dated 29-4-1992 dismissed the respondent's suit. Against the dismissal of his suit, the respondent/ plaintiff Mureed Hussain filed an appeal which was accepted by the learned Additional District Judge, Kallourkot at Bhakkar through the impugned judgment on 25-9-1995 and pre-emption suit filed by respondent was decreed in his favour, hence this revision petition.

3. Malik Allah Wasaya, Advocate representing the petitioners/defendants has argued that the findings of learned Appellate Court holding the respondent as collateral of the vendors is not supported by any evidence, hence in the absence of any corroborative evidence having been produced by the respondent the learned Appellate Court was not justified in recording its findings on the basis of pedigree-table Exh.P.1. He has placed reliance on the case "Muhammad Nameem and others v. Ghulam Muhammad and others" (1994 SCM R 559) and "Ahmad and others v. Allah Diwaya and others" (1998 SCM R 386). His further contention is that the evidence of P.W.1 namely Samundar Khan Arzi Navees could not be even considered at all being irrelevant as neither this witness was related to the respondent as well as the vendors, nor the said witness while recording his statement disclosed his source of information about his alleged knowledge of relationship between the vendors and the respondent. To elaborate his contention, learned counsel for the petitioners has placed reliance on the case of "Ghulam Muhammad and another v. Allah Yar and others" (PLD 1965 (W.P.) Lahore 482). It is next contended that suit filed by the respondent was barred by time because it was established from the evidence that petitioners had obtained possession of the suit-land much before the attestation of impugned mutation.

4. On the other hand Qazi Khurshid Alam, Advocate who appeared on behalf of the respondent, besides supporting the findings of the learned Appellate Court, vehemently rebutted the contentions of learned counsel for the petitioners by arguing that the pedigree-table Exh.P.1 was supported/corroborated by P.W.1 namely Samundar Khan as well as Mureed Hussain respondent as P.W.2. He has also argued that suit filed by the respondent was well in time and the findings of learned Appellate Court are unexceptionable on this point.

5. I have considered the arguments of the learned counsel for the parties and have also perused the record with their assistance. So far as the evidence of P.W.1 Samundar Khan is concerned, it suffers from pfimary lacunae, inasmuch as neither the said witness has disclosed his source of information while giving his opinion about the relationship between the vendors and the respondent nor his evidence corroborates the contents of pedigree-table Exh.P.l. This Court in "Ghulam Muhammad and another v. Allah Yar and others" (PLD 1965 (W.P.) Lahore 482) in unequivocal terms held that unless a witness disclosed his opinion about relationship on which he was giving the opinion, his information neither be considered as relevant nor admissible within the meanings of section 50 of the Evidence Act (now Article 64 of Qanun-e-Shahadat Order). It was further held in the said case that the opinion of a competent witness about relationship must be expressed by conduct and in case it is not so, it would be irrelevant. It was further held that "where the statement by a person has any basis which could give its value or admissibility by the witness must be first asked by the party producing them to state that source of their information about the relationship sought to be proved and it cannot be left to chance or cross-examination to bring out the facts, where therefore, the witness gives no evidence of the conduct on which his opinion about relationship was based and the Court failed to critically examine the statement of witness as the relationship, it was held, that the opinion of the witness about the relationship of the parties was legally irrelevant and inadmissible in evidence." Respectfully, following the above dictum of law in the cited case, I have no option but to discard the evidence C of P.W.1 being not in lines with the above mentioned law declared by this Court.

6. Learned counsel for the respondent has also argued that the evidence of P.W.1 be read with the entries of pedigree-table Exh.P.1 but his contention has not impressed me, for the simple reason, that as the statement of P.W.1 does not corroborate the contents of pedigree-table Exh.P.1, therefore, the same is neither admissible nor relevant, as held above. Further, as held by the Honourable Supreme Court of Pakistan in the cited two judgments, mere exhibition of pedigree- table cannot be considered, unless its contents are established by independent E evidence, which the respondent has failed to produce. The learned Additional District Judge has also placed reliance on the statement of respondent/plaintiff himself but has ignored the fact that respondent never appeared to get his statement recorded in affirmative evidence and his evidence recorded after the evidence of the petitioners jointly in affirmation as well as in rebuttal, cannot be used in his favour, as the course adopted by the learned trial jointly in his affirmation as well as rebuttal, Court allowing the respondent to appear is not only against the provision of law i.e. Order XVIII, rules 1 and 2, C.P.C., but in this way respondent was also deprived of his right of rebuttal of affirmative evidence of the petitioners. The appearance of respondent in affirmative and rebuttal at the close of petitioners evidence has therefore; caused prejudice to the petitioners and his statement for this reason is discarded. I am therefore, satisfied that the respondent/ plaintiff has miserably failed to prove his relationship with the vendors in order to establish his superior right of pre-emption, with the result that the findings of the learned Appellate Court on Issue No.7 are set aside. As regards the contention of learned counsel for the petitioners that the suit of the respondent was barred by time, the same is not based on any cogent evidence; as such the same is repelled.

7. The upshot of above discussion is that the Civil Revision is allowed and the judgment and decree of the learned Appellate Court dated 25-9-1995 is set aside, resultantly, the judgment dated 29-4- 1992 passed by learned trial Court is restored and suit of the respondent is dismissed, with no order as to costs.