NAZAR MUHAMMAD Versus MUHAMMAD NAWAZ
TASSADDUQ HUSSAIN JILLANI, J .‑‑‑This appeal is directed against the judgment of Lahore High Court, Lahore dated 22‑5‑2001 vide which appellant/defendant's second appeal was dismissed and the judgment and decree of the District Judge dated 12‑3‑1985 was affirmed.
2. The facts giving rise to the instant appeal briefly stated are that the suit property was evacuee land, the allottee namely Mst. Sardaran Bibi and others sold away their rights, title and interest to Nazar Muhammad appellant ostensibly for Rs.8,000 by means of registered sale‑deed dated 9th June, 1964 . The respondents/plaintiffs filed suit for possession through pre‑emption. In the written statement filed the plea inter alia taken was that the suit‑land being evacuee property was not pre‑emptible. In terms of divergent pleas following issues were framed:‑‑
"(1) Is the suit‑land an evacuee property, if so, with what effect?
(2) Has the suit been correctly valued for the purpose of court‑fee, if not, what is the correct valuation?
(3) Is the suit property pre‑emptible?
(3‑A) Whether the plaintiffs have a superior right of pre‑emption?
(4) Whether Rs.8,000 was fixed in good faith and actually paid?
(5) If issue No.4 is answered in the negative then what is the market value of the suit property?
(6) Whether the defendant made any improvements on the suit‑land, if so, to what extent and whether they are entitled to recover their price?
(7) Relief.
3. Learned trial Court dismissed the suit in terms of its findings on issue No.3 and held that the suit property being evacuee was not pre emptible. This was vide judgment and decree dated 20‑9‑1966. Respondents appeal was allowed on 20‑12‑1966 and. it was held that the suit property was not an evacuee property. The case was, however, remanded for decision on merits. This judgment and decree was challenged before the High Court in F.A.O. No.9 of 1968. The High Court vide its judgment dated 10‑2‑1971 upheld the finding on issue No.3 but held that there was no justification to remand the case to learned Civil Judge for re‑trial and instead it remitted the case to the learned appellate Court to decide the case on remaining issues. This judgment was upheld in LPA No.21/C/71 vide judgment dated 12‑3‑1971. While deciding the case on remand the Additional District Judge vide its judgment dated 2‑6‑1981 dismissed the suit as time‑barred as according to it the judgment and decree of the civil Court dismissing the suit is dated 20‑9‑1966 and the appeal was filed on 10‑1‑1967 i.e. after 3 months and 20 days. The contention/explanation for delay of the respondents/plaintiffs that application for certified copy of the impugned judgment and decree was initially filed at Hafizabad on 23‑9‑1966 at S.No.514 which was transmitted to Gujranwala and entered at S.No.3281 in C.D.2 register was repelled by the appellate Court on the ground that "but the respondent has produced the original report of the Copying Agency at Tehsil Hafizabad, according to which there is no entry of such application in C.D. Register on 23‑9‑1966 for obtaining the copy". This judgment and decree of the appellate Court was challenged in Civil Revision No. 1082 of 1981 which was allowed and the case was once again remanded to the District Judge with the observations and directions as under:‑‑
" The learned ADJ has committed a material irregularity in not allowing an opportunity to the petitioner to rebut the report of the Copying Agency, Hafizabad, on which reliance was placed by him for deciding the appeal . I therefore, hold that the appeal was not properly decided. Accordingly, I accept this civil revision, set aside the' judgment and decree under challenge and remand the appeal to the District Judge Gujranwala, with the direction that he shall personally decide the appeal afresh and in accordance with law. While so doing, he shall decided the above question after allowing reasonable opportunity to the parties to produce evidence in support of their respective contentions." (Emphasis is supplied).
4. On remand parties were permitted to lead evidence. The respondents/plaintiffs produced eight witnesses and the learned District Judge vide its judgment dated 15‑3‑1985 came to the conclusion that the appeal was not time‑barred. Since the other issues had already been decided in favour of the respondents/plaintiffs, the suit was decreed vide the judgment and decree dated 12‑3‑1985. This had been affirmed by the impugned judgment of the Lahore High Court, Lahore dated 22‑5‑2001. Hence this appeal.
5. Learned counsel for the appellant in support of this appeal submitted as under:‑‑
(i) That the appeal was hopelessly time‑barred and both the Courts below have not correctly appreciated the evidence led before the District Judge.
(ii) That it was a case of partial pre‑emption as respondents/plaintiffs had not pre‑empted all the Khasra numbers which were sold.
(iii) That the land was not pre‑emptible as it was an evacuee land. Since this issue was never agitated before this Court being a question of law it can be raised at any time and there is no estoppel against law.
6. Learned counsel for the respondents/plaintiffs on the other hand defended the impugned judgment and decree by submitting that the respondents/plaintiffs had led irrefutable evidence to indicate that application for obtaining certified copy of the impugned judgment and decree of Civil Court was filed at Hafizabad on 23‑9‑1966 against Entry No.514, that since the file had been sent to the District Headquarters Gujranwala the copying agency transmitted the application to Gujranwala where it was entered at S.No.3281 on 8‑11‑1966, the copy was supplied to the respondents/plaintiffs on 17‑12‑1966, the limitation was to commence from 18‑12‑1966 and the appeal was filed on 10‑1‑1967, thus it was within time. With regard to partial pre‑emption he contended that this plea was never raised by the appellant, either before trial Court or before the appellate Court and even otherwise the entire land, subject matter of the registered sale‑deed was pre‑empted which is evident from the plaint itself. Mere omission of certain Khasra numbers would not non‑suit the respondents/plaintiffs. So far as the question of pre emptibility of the land is concerned, he lastly submitted that this issue stood resolved by learned High Court in the earlier round of litigation in its judgment dated 10‑2‑1971 passed in F.A.O. No.9 of 1968 which was never challenged by the appellant.
7. We have heard learned counsel for the parties and have given anxious consideration to the submissions made.
8. The suit of the respondents/plaintiffs was dismissed by the Civil Court in the first round of litigation vide judgment and decree dated 20‑9‑1966. Appeal against the said judgment in the subsequent round of litigation was dismissed by the Additional District Judge vide judgment dated 2‑6‑1981 as it was of the view that the defendant had produced the original report to the effect that there was no entry of respondents/plaintiffs' application for certified copy of the CD Register on 23‑9‑1966. This judgment and decree was set aside by the High Court on the ground that the report of the copying agency was not sufficient to decide the question of limitation and the District Judge was directed to permit the respondent/plaintiffs to lead evidence to rebut the adverse report of the copying agency Hafizabad. Further evidence was led before the District Judge and as many as eight witnesses were examined by the respondents/plaintiffs and two witnesses appeared as Court witnesses. The District Judge and the learned High Court found the appeal to be within time and decreed the suit as other issues had already been decided in respondents' favour in the earlier round of litigation. In the operative part of the impugned judgment the High Court came to the conclusion as follows:‑‑
" .... The decree was passed on 20‑9‑1966; respondents applied for copy on 23‑9‑1966, thus they lost two days of limitation; this application remained pending with Hafizabad Copying Agency till 3‑11‑1966, therefore, the period from 23‑9‑1966, till 3‑11‑1966, has to be excluded. The period started running against the respondents from 4‑11‑1966, the respondent according to the appellant applied for the copy at Gujranawala, on 8‑11‑1966. From this date; the period of limitation again stopped, in between five further days were lost; the copy was prepared and supplied to the respondents on 17‑12‑1966, the period of limitation again commenced from 18‑12‑1966, the appeal was filed on 10‑1‑1967, therefore, the period from 18‑12‑1966, till 9‑1‑1967, is to be added towards the limitation. This comes to 23 days. Calculating 23+5+2, are 30 days, therefore, the appeal of the respondents filed on 9‑1‑1967, was within the period prescribed by Article 152 of the Limitation Act. "
In support of the afore‑referred finding the High Court also referred to the evidence led on question of limitation and held as under:‑‑
" However, the important witness appearing in the case is AW‑7, Habib‑ur‑Rehman, the Copying Examiner, posted at Gujranwala during the relevant period, who has stated about the checking of record; the official endorsement of the particulars on the copy of judgment and decree supplied to the respondents; he deposed that he has ticked marked the serial No.514 dated 29‑9‑1966, pertaining to the application, which was moved by respondents at Hafizabad and also new serial No.3281 and the date on which application was entered at Gujranwala i.e. 8‑11‑1966. Meaning thereby, that the copying officials at Gujranwala had duly checked the record, that the application was transmitted to the Gujranwala from Hafizabad. His statement has not been shattered in cross‑examination ...."
9. While examining the afore‑referred findings in the light of the evidence led on the question of limitation we are of the view that both the Courts have misread the material evidence on record and the conclusion arrived at is not in accord with it. Admittedly the copying agency at Hafizabad had given a report that no application was filed for obtaining a certified copy of the impugned judgment and decree at Hafizabad on 23‑9‑1966. While remanding the case to the District Judge in the earlier round of litigation and directing to record evidence on question of limitation the High Court had made particular reference to the afore‑referred report. In the proceedings after remand before the District Judge A.W.1 Rehmatullah appeared at the instance of plaintiffs/respondents. He had brought the CD‑2 register relating to the period from 27‑6‑1966 to 27‑9‑1968 and stated that "There is no entry on serial No.514 in the date 23‑9‑1966 in this office register." The evidence of this witness was never challenged by way of any suggestion that he was lying or he had not brought the correct register before the Court. The statement of A.W.2 Kazim Hussain is of no consequence. A.W.3 Maqbool Ahmad was Reader to the Naib Tehsildar and was also working as copyist at Hafizabad. He corroborated the statement of A.W.1 referred to above and said "I have seen the register CD 2 present in the Court pertaining to the year, 1966. There is no entry in the said register in my hand writing." It is in evidence that he had been making entries in the said register around the same date i.e. 23‑9‑1966. The statements of A.Ws.4 and 5 Bashir Ahmad and Waris Khan are also of no avail to the plaintiffs/respondents. AW.6 is Ch. Muhammad Arif Chatha Advocate who had filed appeal on behalf of respondents/plaintiffs. Neither he gave any explanation for delay in filing the appeal in the main body of the appeal nor any application was filed under section 5 of the Limitation Act for condonation of delay. There is only a side note on the last page of the memo. of appeal on which the date is not legible and is to the following effect:‑‑
The afore‑referred note appears to be an afterthought and is not accompanied by any affidavit. While appearing as AW‑6 he conceded in cross‑examination "I had not attached any affidavit with the appeal about my checking the application in the Copying Agency." This witness besides being interested is not worthy of credit as his testimony is devoid of solemn affirmation in the shape of an affidavit. A.W.7 Habib‑ur -Rehman another witness of plaintiffs/respondents who was Clerk in the D.C. Office Gujranwala. In his statement he stated that while issuing certified copies of the judgments and decrees he had mentioned S.No.514 and 3281 from the applications moved to obtain certified copies. His precise statement was "I had taken numbers 514 and 3281 from the applications moved to get the copies". This statement indicates that there were two applications. Even if it is assumed that an application was moved to the Copying Agency at Hafizabad to obtain certified copy, the same was returned which necessitated moving the second application at S.No.3281 at Gujranwala . If this be the factual position, then the period of limitation had already run out when application was filed at Gujranwala . A bare reading of his replies during cross‑examination would show that this witness knew nothing about the case, therefore, was worthy of no credit for instance he stated as under:‑‑
"I cannot say that if the copy could not be delivered at Hafizabad Copying Agency, it was handed over to the applicant to present the same in Copying Agency at Gujranwala . I cannot say definitely whether application No.514 was sent through Dak runner or through the applicant by hand. I cannot say if the application No.514 was returned to the applicant and when it was returned. Similarly, I cannot say that if he has presented it by hand at Gujranwala when he had presented it."
A.W.8 is Muhammad Nawaz respondent/plaintiff himself. He too is an interested witness. His testimony cannot be relied upon. Although he says that he filed an application for obtaining certified copy and he was given a chit/receipt by the office but he never produced the same at any stage. Rehmatullah who appeared as A.W.1 was again summoned with CD‑2 register as Court Witness No. 1. In answer to a question by defendant's counsel he stated that Exh.R/1 was correct copy of Entry No.514 CD‑2 register for the year 1966. However, this answer cannot be relied upon in view of his earlier statement made while appearing as AW‑1 to the effect that "I have brought with me the Register CD‑2 which relates to the period from 27‑6‑1966 up to 27‑9‑1968. This CD‑2 register pertains to RL‑2 and mutations. There is no entry on Serial No.514 in the date 23‑9‑1966 in this office register ....There is no other CD‑2 register with the Dafter Qanungo." Maqbool Ahmad who appeared as A.W.3 again appeared as C.W.2 and stated "that Entry 514 in CD register shown to me outside the office and I have ascertained about it, from the office. It is correct that there is no indication from the entry of Column Nos.513 and 515 that relevant copy had been prepared and delivered to the applicant. The Entry 543 is not in my hand, but is similar to the entry of Column Nos.513 and 515". Again this statement would not advance the case of the respondents/plaintiffs because during cross‑examination while appearing as C.W.2 he stated "the Entry No.514 vas made on 23‑9‑1966. There is note in my hand about the return of the application to the applicant". Now if this statement is true that he had returned the application of the respondents/plaintiffs for obtaining certified copy then the period of limitation would commence from September, 1966 when the application was filed and returned. At the time of filing the second, application, which was entered at S.No.3281 at Gujranwala i.e. 3‑11‑1966, the period of limitation had already expired. (The judgment and decree is dated 20‑9‑1966).
10. The analysis of evidence in the preceding para. would show that the observation of the High Court in the impugned judgment (reproduced in para. 8 above) that "this application remained pending with Hafizabad copying agency till 3‑11‑1966, therefore, the period from 23‑9‑1966 till 3‑11‑1966 has to be excluded" is a patent misreading of evidence. Similarly the finding that "meaning thereby that the copying officials at Gujranwala had duly checked the record, that the application was transmitted to Gujranwala from Hafizabad" is not borne out from the record/evidence led. The respondents/plaintiffs miserably failed to adduce evidence to rebut the report of the Copying Agency Hafizabad on the basis of which the Additional District Judge found the appeal to be time‑barred in the earlier round of litigation. Interestingly the respondents/plaintiffs never challenged the veracity of this report even on the administrative side by way of a complaint/application before the District Judge Gujranwala. In view of the above the appeal was hopelessly time‑barred and the concurrent judgments i.e. of the District Judge dated 12‑3‑1985 as also of the High Court dated 22‑5‑2001 cannot be sustained.
11. In view of our finding on question of limitation any discussion or pronouncement on issues of a partial pre‑emption or pre‑emptibility of suit‑land is uncalled for.
12. There is yet another aspect of the case. During hearing of this appeal it has been brought to our notice that immediately after pronouncement of the impugned judgment by the Lahore High Court the respondents/plaintiffs took forcible possession of the suit‑land. A case was registered vide F.I.R. No.72/2002 Police Station Wanaky Tarrar after some efforts by the appellant/complainant but the police did not take any further action; whereafter the complainant had to file a private complaint which is pending before a Court of competent jurisdiction.
Confronted with the afore‑referred allegation, respondents' learned counsel could not deny that the respondents/plaintiffs had taken possession of the suit‑land after the pronouncement of judgment by the High Court but he contended that it was done with consent of the appellant. However, he conceded that there is no document to show that it was a consensual surrender of possession on the part of the appellant. This conduct of the respondents/plaintiffs betrays scant regard for law to say the least.
13. In the afore‑referred circumstances we allow the appeal with costs throughout and set aside the impugned judgment and decree of the District Judge dated 12‑3‑1985 and of the Lahore High Court dated 22‑5‑2001 and restore the judgment and decree of the Civil Judge dated 20‑9‑1966. For reasons given in para. 13 above, we direct the District Police Officer Gujranwala to ensure that the possession of the suit‑land is handed over to the appellant by 28‑1‑2005 under intimation to this Court through Registrar.
M.H./N‑41/S Appeal allowed.