GULAM ZOHRA & 8 others vs NAZAR HUSSAIN (deceased) through his legal

Sardar Muhammad Raza Khan, J.--The petitioners seek leave to appeal from the judgment dated 19.10.2000 of a learned Judge in Chambers of Lahore High Court, whereby, their revision was dismissed, maintaining the decree for possession through pre-emption in favour of Nazar Hussain respondent (now dead-LRs impleaded).

2. The petitioners had purchased the disputed property in Mauza Dawana Kanju, Tehsil Shahpur District Sargodha vide Mutation # 222 attested on 22.8.1969. It was pre-empted by two rival pre- emptors named Syed Ghazanfar Ali Shah, the son of the vendor and another Nazar Hussain, the respondent. The learned trial Court dismissed the suit of Syed Ghazanfar Ali Shah holding it to be collusive and decreed that of Nazar Hussain holding him to be an owner in the estate, which the petitioners/vendees were not. The non-suited, pre-emptor did not file an appeal while the vendees went into appeal where they filed an application under Order XLI Rule 27 CPC for the production of revenue record proving them also to be owners in the estate. The appellate Court as well as the learned High Court, through the impugned order, came to the conclusion that the application was filed to fill in the lacunae and that such plea was never taken by the vendees in their written statement.

3. The successful pre-emptor is held to be an owner in the estate. If the application of the petitioners had been accepted by the learned appellate -- Court,.the vendees also would have been held to be the owners in the estate, having equal right with that of the pre-emptor. We have scanned the record wherefrom it appears that no patwari was examined by the trial Court from whom the revenue record favouring the petitioners could have been demanded. Copy of Register Haqdaran Zamin for the year 1966-67 and 1970-71 annexed with the application under Order XLI Rule 27 CPC undoubtedly determines the present petitioners also to be the owners in the estate.

4. The application if not allowed, would result into the passing of a decree against a vendee who has equal right of pre-emption with the preemptor and where the pre-emptor would be having no superior right. It would be nothing but a sheer injustice besides being an illegality. Thus the learned appellate Court under sub-rule (b) of Rule 27 of Order XLI CPC should have received the copies of revenue record as additional evidence in order to do complete justice and in order to avoid passing a decree in favour of the pre-emptor having no superior right. The question of filling in the lacunae is not of prime importance because no such word is mentioned in the rule itself.

Obviously, additional evidence is always sought about something, which happens to have been omitted by a party during trial. The appellate Court would have done justice if it had come o the conclusion that the admittance of additional evidence would promote the ends of justice and the same was required in order to do complete justice between the parties. This must have prevailed as substantial cause for the appellate Court to admit evidence as mentioned in sub-rule (b) Rule 27 of. Order XLI CPC. We are of the view that both the Courts, by not admitting the additional evidence have passed a decree in favor of a pre-emptor having no superior right. This was a bigger irregularity as compared to the admission of additional evidence for which substantial cause was available.

5. The second objection that the plea was not taken in the written statement, is also unfounded. It is sufficient for a defendant in a pre-eruption suit to plead that the pre-emptor had no superior right.

Such plea was, of course, taken by the present petitioners In a pre-emption suit it is the preemptor who is to prove the superiority of his right not the equality and hence the plea that the pre-emptor has no superior right is sufficient to meet the requirements of the pleadings.

6. Consequent upon what has been discussed above, the petition, after conversion into appeal, is accepted. the impugned judgments of the High Court as well as the appellate Court are set aside and, in order to avoid prolongation of already protracted litigation, the copies of janza bandi 'produced by the petitioners are admitted into additional eVidence. The pre-emptor Nazar Hussain is declared to be having no superior right preemption. His suit for pre-emption is dismissed subject to payment of Rs. 10,000/- as caused for additional evidence to be deposited by the petitioners before the Assistant Registrar of this Court within one month, failing which, the decree in favour of Nazar Hussain shall stand revived.