ABDUR RASHID Versus FAYAZ BEGUM

1. This second appeal is by Abdur Rashid defendant in a pre‑emption suit. It was dismissed on 8‑5‑1978 by Civil Judge, Jhelum but in appeal this decision was reversed by District Judge on 8‑6‑1980 who gave pre‑emption decree for the land in suit to plaintiff Mst. Fayyaz Begum on payment of Rs.10,500: It is against this decision that the defendant has come up to this Court. To make the points intelligible some facts relevant to those may be briefly stated as follows.

2. 4 Kanals, 4 Marlas of land comprised in Khasras 45, 49, 50, 109 situate at Mauza Piraghaib, Tehsil Jhelum belonged to Mohammad Sadiq, his brother Mohammad Azeem and his two sisters Mst. Zarina Bi and Mst. Sakina Bi. By mutation 4910 sanctioned on 2‑10‑1973. this piece of land was sold by its owners to Abdur Rashid at the sale price of Rs.10,500. Mst. Fayyaz Begum claimed pre‑emption in respect of this sale and sued to recover possession. It was alleged that as daughter of Mohammad Sadiq and niece of other vendors, she had a better right to get the land. Price paid for it was denied and it was alleged that land in suit was sold only for Rs.4,600. Defendant resisted the suit. It was pleaded in defence that suit was not grounded in good faith and was not maintainable; that the plaintiff because of her words and conduct was estopped to sue; that the court‑fee paid on the plaint was insufficient; that the form of the suit was defective; that the suit was barred by limitation. On merits, right to pre‑empt claimed by the plaintiff was denied and in regard to the sale price, it was alleged that land was purchased for Rs.10,500 which sum was fixed in good faith and was actually paid as the sale price. Plaintiff filed replication and reiterated her earlier stand taken in the plaint.

3. Pleadings gave arise to as many as nine issues. These have been correctly set out in the impugned judgments and it shall serve no good purpose to reproduce them. On examination of the evidence led in the case by the parties, Court of first instance found issues 1 and 2 against the plaintiff and observed that suit filed by her was mala fide in addition to its being barred by rule of estoppel. In regard to rest of the issues, it was held that proper Court‑fee had been paid; that the form of the suit was correct; that the suit was filed within limitation; that the plaintiff had superior right of pre‑emption; that the stated consideration for the land in suit was correct. As observed above, suit was dismissed on the grounds of its being grounded in mala fides and barred by estoppel. On plaintiff's first appeal, decision on these two issues was reversed and the suit was decreed to the plaintiff. Defendant is aggrieved of the judgment in first appeal.

4. Ch. Hamid‑lid‑Din learned counsel appearing for the appellant strenuously argued that the pre‑emption suit was filed at the instance of and for the benefit of Mohammad Sadiq vendor who was the real beneficiary of the litigation and had financed it also. It was further argued that pre‑emptor was a consenting party to the sale transaction and had also actively participated in it. Therefore, she was estopped to sue. In nutshell, burden of his arguments was‑that pre‑emption suit was benami for one of the vendors and suffered from bar of estoppel also. To establish his view point, learned counsel took me through the entire evidence of the parties and relying on it vehemently argued that the learned Judge below took a wrong view of record and ignored the circumstances listed by the trial Court in giving decision against the pre‑emptor Learned counsel heavily relied on a decision of this Court in Mahabir Singh v. Badh Singh A I R 1938 Lah. 510 a Division Bench judgment. He also referred to decisions reported as 43 Indian Cases 117, 19 Punjab Record 1898, 17 P.W.R. 1918 but did not produce the judgments at the hearing. Sheikh Zamir Hussain learned Advocate for the respondent countered the arguments of the learned counsel of the appellant with equal force by relying on Ahsan Ullah and others v. Jowahir Lal and others 87 Punjab Record 1986, Lal Din v. Allah Ditta and others P L D 1967 Lah. 703, Mst. Ruqayya Bibi and others v. Abdul Majid 1986 P L D 534 a decision by a Bench of two Judges of this Court and submitted that neither estoppel nor benami character of the suit was established. Learned counsel argued that merely that the pre‑emptor was an unmarried grown up girl living under the same roof with her father and possessed of no independent financial resources was no good ground to deprive her from her right of pre‑emption. In this behalf, the learned counsel also referred to the observations of their Lordships of the Supreme Court in Imam and 7 others v. Saifur Rehman P L D 1984 SC 415.

5. From the above, three points need consideration, one was in regard to the mala fide and benami character of the suit and the second related to plea of estoppel. Before I advert to these points in connection with the evidence led in the case, I think it is necessary to mention that plea as to benami nature of the suit as such was not taken in the written statement and it was in this view of the defence that no issue on benami character of the suit was struck by the trial Court and the issue framed was whether the suit was mala fide. Ch. Hamid‑lid‑Din Advocate argued that when the defendant said that the suit was mala fide what he meant was that it was benami and was filed for the benefit of the vendors. I shall first address to the plea of estoppel and postpone the examination of benami character of the suit for consideration after having dealt with the plea of estoppel. It is well settled that in order to deprive a person of any legal right that he has, there must be clear cogent and strong convincing evidence on the record justifying that course. Waiver is relinquishment of a known legal right by some act or conduct of the person showing in A unmistakable terms that he is not interested in exercise of that right. In the present case, waiver was sought to be established by the oral testimony of Sadiq D.W.2, his wife Mst. Bilquis Begum D.W.5, Mohammad Siddique, Mukhtar of defendant D.W.6. Mohammad Sadiq D.W.2, mason by profession, resident of Machine Mohammad Jhelum and a neighbour of vendee‑defendant deposed that Sadiq vendor had come to his house in October 1963 (four years before) and told him that he intended to sell his land to defendant and that in his presence bargain was struck at Rs.10,500. Further deposed that sale price was paid in his presence at Tehsil Office where Mst. Faizan plaintiff was also present and had received the sale price after counting it. In cross‑examination, witness stated that he had also once or twice visited the house of Mst. Faizan in village Chittan. At the end of cross‑examination, Sadiq admitted that the sale price was counted by Munshi of Tehsildar who had given it to Mohammad Sadiq vendor. Mst. Bilquise Begum is wife of D.W.2. Her statement is identical with that of D.W.2. However, she went a step further and deposed that Sadiq along with his daughter had come to her house and stated that they intended to file a civil suit against Abdur Rashid. D.W.6 testified that pre‑emption suit was product of collusion and the land in suit was sold to enable Mst. Faizan to send her brother to England. In course of cross‑examination, the witness stated that mutation was sanctioned in village Chittan in his presence and the sale price was paid at public gathering. However, he does not say that Mst. Fayyaz Begum was present on the occasion. Mst. Fayyaz Begum as P.W.3 denied her presence at the time of sale as also her participation in it. Therd is a conflict in evidence as to the place of attestation of the sale mutation. P.W.1 says that it was sanctioned at Tehsil Office. D.W.2 Sadiq deposed that mutation was sanctioned in his presence at Tehsil Office and Mst. Faizan was present on the occasion. D.W.3 deposed that mutation was attested in village Chittan in his presence at public gathering. At the time of evidence, Mst. Fayyaz Begum was about 25 years of age. She resided at village Chittan. Her visit to Tehsil Headquarters or for that matter her presence on the occasion of the attestation of mutation appeared to be an improbable and unlikely event. Presence of her father, uncle and two aunts was quite natural. Copy of sale mutation has not been produced in evidence. In its absence, nothing can be said about the persons who identified the parties before the Revenue Officer. None from the public gathering was put in evidence to prove presence of Mst. Fayyaz Begum. Presence of Sadiq D.W.2 is not free from doubt. No good reason has been shown for his being present on the occasion. Similar comments can be made with regard to the testimony of Mst. Bilquise Begum. Neither Sadiq nor his wife Mst. Bilquise Begum were related to vendors. In these circumstances, it is difficult to believe that Sadiq vendor and his daughter Mst. Fayyaz Begum would go to their house at Machine Mohallah to repose confidence in them so as to provide an occasion to them to be witnesses against them in the pre‑emption suit. Evidence of D.W.2 and his wife D.W.5 does not inspire confidence. They are neighbours of vendee and it is quite natural for them to be interested in vendee as against the other party who were total strangers to them. On this evidence, it cannot be said that pre‑emptor had said, acted, or done anything which could support necessary elements of estoppel or waiver. When I look at the record and read the evidence, I get a clear impression that it was a usual type of evidence which it is not difficult to procure to fit in with such like defences. Defence testimony is conflicting and suffered from inherent improbabilities. Therefore, it cannot be relied upon to hold that plaintiff had either waived her right or was estopped to sue. This brings me to the second point. Presumption is that plaintiff sues for his own benefit and it is for the party setting up a plea of benami to prove it by leading convincing evidence. In the present case, it was not stated in the written statement that plaintiff acted Benami for her father. Only objection taken was that suit was grounded in mala fides. To support and establish the plea of mala fides and the benami character of the suit, learned counsel heavily relied on the circumstances listed in the judgment of the trial Court and asserted that these taken together clearly showed that plaintiff was a mere figurehead and the real beneficiary of litigation was her father. I do not agree. Listed factors taken either individually or collectively do not establish benami character of the plaintiff's suit. Right of pre‑emption is personal.) Necessary corollary of personal aspect of the right is that pre‑emptor can exercise it for himself alone and if he acts benami i.e. not for himself but for another person, his suit must fail. However, the plea of a suit being benami is one easy to make but difficult to prove. For its successful assertion, Court shall require the strictest proof of this allegation and mere fact that the pre‑emptor was instigated by another person or that funds are supplied to him by someone else or that he intends to transfer property or agreed to do so are not sufficient factors to non‑suit the pre‑emptor. Suit can only be dismissed if the Court comes to positive conclusion that plaintiff had no real interest in the litigation except promoting the interest of another person. In number of cases, it has been observed that Court has no concern with the motives which may induce a claimant to claim pre‑emption nor can the Court legitimately ask him as to what are you going to do with the land or the sources from which he raised the necessary funds to prosecute his claim. Rule deducible from these decisions is that a pre‑emptor has only to prove his right and when it is so proved, he is to produce the money fixed by the Court. Plaintiff's case was that she was living separately from her father, and her maternal uncle gave her the money. Defendant's case was that she was residing with her father, under a common roof and that funds were being supplied by him. Even if it be held that plaintiff resided with her father this in itself would not go to ‑prove that she acted benami and had no interests of her own in the litigation. Endorsement on EXh.P.l indicated that copy of fard Jamabandi was taken by Mohammad Sadiq vendor. Plaintiff denied this statement. Patwari entered the witness box as D.W.4 and made his statement. It was deposed by him that cop) EXt.h.l was prepared by him and at the request of Mohammad Sadiq son of Ghulam Hussain and was given to him on 20‑9‑1974. Further deposed that aforesaid Mohammad Sadiq was personally known to him and on appearance he could recognise him. In cross‑examination, witness admitted that copy could be obtained by any person and the name of the applicant on EXh.D.l was written as asserted by the applicant. Even if it be taken that copy of fard Jamabandi was taken by Mohammad Sadiq, it neither proves collusion nor benami character of the suit. It was not necessary for the plaintiff to go to the residence or office of Patwari for getting a copy of Jamabandi and if her father assisted her in this behalf, he committed no sin. In the view I have taken, I am fortified by decisions reported ,D as Lal Din v. Allah Ditta and others PLD 1967 Lah. 703, Mehr Kamir v. 1Vali Muhammad and 5 others PLD 1972 Lah.287, Mst. Ruqayya Bibi and others v. Abdul Majid 1986 MLD 534 Lah. and also the observations of their Lordships of Supreme Court in Imam and 7 others v. Saifur Rehman P L D 1984 SC 415. Case of Mahabir Singh v . Bad h Singh A I R 1938 Lah. 510 proceeds on distinguishable facts and is not in point‑In the cited case, Mahabir Singh had not appeared in the witness box and notice of pre‑emptor was given to the vendee on his behalf by his father who was vendor of the property. Facts in the present case are different. Taking into consideration all the relevant circumstances and the principles of law laid down in this behalf, in my opinion, it is not established that pre‑emption suit filed by Mst. Fayyaz Begum was benami for her father and in this view I agree with the learned Judge below and dismiss the appeal leaving the parties to bear their own costs. Before concluding, it is necessary to observe that Ch. Hamid‑ud‑Din learned Advocate had in E course of the hearing of the appeal had suggested that the case be remanded to the first Court of appeal for deciding of it afresh after taking into consideration the relevant factors listed in the judgment of the trial Court for holding the suit benami. As the evidence on record was sufficient for final determination of the appeal, I did not think it proper to accept the suggestion and preferred to examine the case myself and give decision thereon.

6. A.A./A‑345/L Appeal dismissed.