KALA KHAN Versus QADIR BAKHSH
The land in suit measuring 103 Kanals 2 Marlas situated in Mauza Tibbi Mahtab Singh, Tehsil Chunian (then District Lahore now District Kasur) was sold by Muhammad Yousaf in favour of the respondent for an ostensible price of Rs.9,750 through Mutation No.57 attested on 21‑8‑1970. The respondent filed a suit for possession of the suit land through pre‑emotion. He alleged that the land in suit had actually been sold for Rs.5,000 and that his right of pre‑emotion was superior as he was an owner in the estate in which the land in dispute was situated. The petitioners contested the suit on the grounds that the respondent had no superior right (f pre‑emotion; that a sum of Rs.9,750 was actually paid as a price of the suit land; that they had erected Kothas, installed a tubewell and planted a garden in the suit land for which they were entitled to compensation in case of decree, that the respondent was estopped from filing the suit and that the sale was not pre‑emptible. The following issues were framed:‑
(1) Whether the plaintiff has got superior right of pre‑emotion? O.P.P.
(2) Whether Rs.9, 750 were actually fixed and paid in good faith as sale price? O.P. D .
(3) What is the market value of the suit land? O.P.P.
(4) Whether the defendants have made improvements on the suit land, if so, to what compensation are they entitled? O.P. D.
(5) Whether the plaintiff is estopped from bringing this suit? O.P.D.
(5‑A) Whether the sale of the suit land is not pre‑emptible?
(6) Relief .
Issues Nos. 1, 2, 3 and 5‑A were decided in favour of the respondent. On issue No.4 it was decided that the petitioners had made improve ments for which they were entitled to get compensation of Rs.66,515. Issue No. 5 was decided against the respondent. As a result the learned Civil Judge, Chunian, dismissed the suit vide judgment and decree, dated 10‑2‑1976. The respondent filed an appeal which was disposed of by the learned District Judge, Kasur, vide order, dated 27‑10‑1976. He reversed the decision on issue No.5 while on issue No.4, he gave the opinion that the evidence in regard to the improve ments should be recorded once again and the cost of Improvements be determined afresh. The findings on other issues were maintained. Therefore, the learned District Judge remanded the case to the learned trial Court with the direction that he should decree the suit of the respondent on payment of Rs.9,750 as price of the suit land plus the cost of the improvements to be determined by the learned trial Court. The petitioners have challenged the said appellate order through this appeal. I have perused the record and have heard the arguments of the learned counsel for the parties.
2. There is no dispute in regard to the findings on issues Nos. 1, 2, 3 and 5‑A. The contest of the parties before me is, therefore, in regard to issues Nos. 4 and 5. The learned trial Court appointed a Local Commissioner for assessing the value of the improvements made by the petitioners‑ vendees. He assessed the value of the improvements excluding the value of tubewell at Rs.56,515.. It may be mentioned here that in his report EXh.D.1 there is a clerical mistake. The value of the Kothas has been mentioned as Rs.3,850 in the concluding paragraph and on that account the total amount has been given as Rs.43,365. However, in the first paragraph of the report the value of the houses has been given as 13, 700. It was by mistake that instead of taking into consideration 4 houses the total value of which came to 13, 700 in the concluding para. the value of only one of the houses i.e. Rs.3,850 was accounted for. The learned trial Court detected this mistake and pointed out under issue No :4 that the value of improvements according to the Local Commissioner was Rs.56,515 and (not Rs.46,665). He added the value of tubewell amounting to Rs.10,000 to this amount and determined the total cost of improvement as Rs.66,515. It may be pointed out that the cost of tubewell was not disputed. The real dispute, therefore, relates to the improvements other than the tubewell. The Local Commissioner filed his report, dated 18‑5‑1975, Exh.D.1 in the Court. The learned trial Court vide order, dated 17‑6‑1975 invited objections from the parties and fixed the case for 23‑7‑1975. None of the parties filed an‑y objection to the said report. This would mean that the report was accepted by both the parties. Therefore, now it does not lie in the mouth of the respondent to dispute the said report in any manner. f However, the learned counsel has argued that the Local Commissioner did not determine the ages of the fruit trees said to have been planted by the petitioners and that the report, therefore, suffered from this material lacuna. But as already said, the report was not objected to by the respondent and now he is estopped from disputing the same on any ground whatsoever. Therefore, the report is final. The cost of improvements as determined by the Local Commissioner would be Rs.56,515 to which the cost of tubewell amounting to Rs.10,000 will have to be added. Therefore; the finding of the learned appellate Court on issue No. 4 is set aside and the findings of the learned trial Court that in case of decree the petitioners were entitled to recover Rs.66, 515 as cost of improvements in addition to the sale price of Rs.9,750 is confirmed.
3. In para. 3 of the written statement the petitioners had taken a specific plea that the respondent was present in the bargain of sale and that he was in the full knowledge of the bargain. It was on this objection that issue No.5 was framed by the learned trial Court. The learned counsel for the respondent has argued that the said averments in the written statement did not amount to a plea of estoppel or waiver. He contends that the petitioner should have, in the written statement, specifically stated that because of his presence and B participation to the bargain of sale he was estopped from filing the suit and that he had waived his right of pre‑emotion. This argument has no force. The petitioners took this objection obviously for‑raising the plea of estoppel and waiver. Their said plea was understood not only by both the parties but also by the learned trial Court. This is why issue No. 5 was 'framed and this is why the parties produced evidence on the said issue. Therefore, it is wrong to say that no plea of estoppel or waiver was raised by the petitioners. The learned trial Court had decided issue No.5 in favour of the petitioners holding that the respondent had waived his right of pre‑emption and was estopped from filing the suit. This finding was set aside by the learned appellate Court through the impugned judgment. The evidence on this issue is obviously oral. Murad Ali D.W.1 and Kalay Khan D.W.4, petitioner No.l, have stated that the respondent was present at the time of bargain of sale and D.W.4 has made it clear that it was the respondent who got the business struck and finalised. One could say that this evidence was not sufficient enough to prove the issue of estoppel but that could be if the respondent had come into the witness‑box to rebut the evidence of D.W. 1 and D.W.4. The respondent did not enter the witness‑box as P.W. The learned counsel for the respondent has stated that the respondent was then suffering from some disease and ultimately died and, therefore, his non appearance may be ignored. There is nothing on record even to suggest that the respondent was suffering from any disease when the evidence was recorded. It would be useful to point that the affirmative evidence of the respondent was closed on 4‑3‑1975 when the right to produce respondent /plaintiff as a witness in the affirmative and in rebuttal was specifically reserved. However, the evidence of the respondent was closed on 9‑2‑1976 without putting the respondent in the witness‑box. Respondent Qadir Bakhsh died on 13‑4‑1985 during the pendency of this appeal. This means that he died 10 years after the affirmative evidence was closed and about 9 years after the evidence of the respondent was closed finally. This means that the respondent Qadir Bakhsh remained alive for the said long period. As already said there is nothing on record to show that he was then suffering from any disease and no presumption can be drawn in favour of any ailment in respect of a person who died about 9/10 years after the crucial date.. The non‑appearance of Qadir Bakhsh as his own witness was fatal for his case and an adverse presumption can be drawn that if he had appeared he would have admitted that he was present in the bargain and the bargain of sale was got struck by him. Drawing of such a presumption is supported by Feroze Khan and others v. Mst. Waziran Bibi 1987 S C M R 1647. In any case the evidence of D.W.1 and D.W.4 goes unrebutted and suffices to prove that Qadir Bakhsh ‑deceased respondent had waived his right of pre‑emption and therefore, was estopped from filing the suit. The finding of the learned appellate Court on issue No.5 is reversed while the finding of the learned trial Court on the said issue is restored and confirmed.
4. As a result the impugned judgment‑ of the learned appellate I Court is set aside while the judgment and decree of the learned trial Court, dated 10‑2‑1976 are restored. The result is that the suit of the respondent stands dismissed.
5. The parties are left to bear their own costs.
H. B. T. /K‑77/L Appeal accepted.