SARDAR ALI Versus GUL ANAR

There are two judgments of the Courts below, which axe at variance. The judgment of the learned Additional District Judge who decreed the suit is being impugned through this R.S.A. This was a suit for pre‑emption of land measuring 92 Kanals described in the head note of the plaint. The land is located at Mauza Hamoli, Tehsil and District Mianwali. The sale Mutation bears No.2030, dated 17‑7‑1974 which is against a consideration of Rs.15,000. However, it is said that to keep away the pre‑emptor, an ostensible price of Rs.34,000 was recorded as the sale price.

2. . In the written statement, preliminary objections were raised on behalf of the defendants, these inter alia included:‑‑‑

(a) That the plaintiffs were estopped to bring this suit.

(b) That the suit was against minors and the guardian ad litem having not been appointed, the suit could not proceed.

(c) That the vendees being the collaterals of the vendors, superior right. of pre‑emption was not available to the appellant. Further it was also said that improvements have been effected by the purchaser and according to his calculation it was worth Rs.4,000.

3. The learned trial Court on the basis of these divergent pleas framed the following issues, which are reproduced below in extenso:‑‑

(1) Have plaintiffs superior right of pre‑emption?

(2) Were Rs.15,000 fixed in good faith or paid as sale price?

(3) What is market value of the suit?

(4) Is suit time‑barred in view of preliminary objection No. l?

(5) Is the description of the suit not proper. If so, to what effect'?

(6) Are plaintiffs estopped from bringing the suit.

(7) Have vendees improved the property, if so, with what expenses and whether they are entitled to receive any compensation. If so, how much?

(8) Have plaintiffs not paid proper court‑tee?

4. Issue No. l was decided in favour of defendants by the trial Court. This finding was reversed by the learned first Appellate Court. Issue No.2 was decided in favour of the vendees and it was held that the sale price against this transaction was Rs.34,000. Issue No.3 was decided in line with issue No.2. In deciding Issue No. 4 it was held that the suit was not time barred. Issues Nos.5 and 6 were decided against the defendants for lack of evidence. Issue No.7 was decided against the defendants. Issue No.8 also failed. Consequently, the suit was dismissed on the basis of findings on issue No. l with costs.

5. An appeal was preferred before the learned First Appellate Court, who vide his judgment, dated 5‑3‑1980 accepted the appeal and reversed the finding on Issue No. l and consequently this second appeal.

6. The learned counsel for the appellant has advanced arguments on Issue No. 1. In this connection he has relied on Shajra Nasab Exh. D‑1, testimonies of Shams‑ud‑Din (D.W.1) and Islam Din (D.W.2). The learned counsel while referring to the Shjra Nasab Exh.D.l has pointed out the names of the vendees Sharoo son of Sikandar as well as of Islam Din and has stated that the vendees being sons of Islam Din were related to the vendor having a common. ancestor. The learned counsel relied on the evidence of Shams‑ud‑Din (D.W.1) and has said that his statement further supplements the‑Shajra Akas (Exh.D.l). The learned counsel for the appellant read the statement of Islam Din, the father of the vendees to point out that he and the . seller had a common ancestor. According to the learned counsel, the learned Additional District Judge erred in holding that the evidence of relations in this case was not to be considered. That relations were the best witnesses for tracing a common ancestory or otherwise. .That even otherwise Akas Shajra and the statements of D.W.1 and D.W.2 were sufficient to establish that the sellers and the buyers were closely related. He has further pointed out that Sharfoo son of Sikandar appearing as a witness tried to estalqlish the relationship between himself and the vendees. But since all objection was raised against his testimony this could not be recorded. He was, therefore, of ,the view that the judgment given by the Trial Court was well‑reasoned and suffered .‑no infirmity. That this was not 'the case in connection .with the judgment of the First Appellate Court:

7. On the other hand, the learned counsel for the respondent argued that initially in their written statement, the appellants did not take the plea of, relationship with the vendor. That this was taken on 16‑3‑1975 when Sharfoo appeared in the Court and the defendants declared that they would amend their written statement which subsequently they did and included the plea of relationship with the vendor which was now being proved.

8'. Assailing Exh.D.l, the learned counsel has said that Exh.D.l, the Shajra Nasab is not believable.. That whereas according to Shajra Nasab, the parties mentioned therein on te first page belonged to Jaliana, Tehsil and District Karnal but it has come in evidence that their original ancestral village was Khari, Tehsil Khatak, District Kamal which was a different village. The different pages of Shajra Nasab were joined to form Exh.D.l for purposes of establishing a relationship. That this was an afterthought.

9. The learned counsel for the respondents in this connection has referred to paras. 7 to 10 of the judgment given by Raja Muhammad Khurshid, the learned Additional District Judge, Mianwali who was so at that time. He pointed. out that the. learned First Appellate Court has made a' table of relationship based on the oral evidence and the Shajra Akas.

10. Paras. 7 to 10 of the judgment of First Appellate Court are reproduced below in extenso:‑‑

"The only question, therefore, remains about the settlement of Issue No. 1. The learned counsel for the appellants has contended that the respondents‑defendants had simply denied the right of pre‑emption but never pleaded in their written statement that the vendor was the paternal great grandfather of the vendees; nor they had stated that they were his collaterals. However, this plea was allegedly raised by moving an application for amendment on 6‑11‑1976. In that application it was contended that the vendor was the paternal‑great grandfather of the respondents‑defendants and they were his collaterals. However, the evidence brought on record allegedly did not connect the vendees‑defendants with the abovementioned vendor, namely, Sharfu. On this regard it was contended that the pedigree‑table produced by the respondents‑defendants did not connect them with the common ancestor of the vendor namely, Hak as divulged during the oral evidence consisting of the statements of D.W.1 and D.W.2. It is further contended that the vendor appeared in the Court on 6‑11‑1976 and stated as a D.W. that the vendees were his great grandsons. However, the evidence consisting of the statement of Shams‑ud‑Din (D.W.1) and Islam‑ud‑Din (D.W.2) would show that the vendees were not the great grandsons of the vendor, but the most they could be called as his collaterals. It was, therefore, contended that since the documentary proof Le. The pedigree‑table does not support the oral evidence on record, therefore, it could not be used to defeat the superior right of pre emption of the appellant‑plaintiffs.

The learned counsel for the respondents‑defendants contended that although the vendees‑defendants are not proved ‑ through the evidence on record that they were the great grandsons of the vendor but they have been proved through oral evidence that they had a common ancestor, named Haku. It was, therefore, alleged that the oral evidence could be utili7,ed to defeat the right of pre‑emption as alleged by the appellants/ plaintiffs.

I have taken into account the above arguments and have also gone through the record. It may be pointed‑out here that Shares‑un‑Din witness, namely, Islam‑ud‑Din is a brother of Shams‑ud‑Din and guardian ad litem of the vendees‑defendants. It is, therefore, clear that both the witnesses are quite interested as they are closely related to the vendees‑defendants. It is, therefore, obvious that when documentary evidence is available then the same should be relied upon either to corroborate such interested witnesses or to establish the fact which has been controverted by the other party. According to the common ancestor of the vendor and the vendees has been shown as follows:‑‑

Haku

' Rahman Wazir .

Ibrahim Dana

Amar Ali Sikandar

Saro Sharfu

Rahim Bakhsh (Vendor)

Abdul Ghafoor

Islam‑ud‑Din

(Vendees)

According to the above diagram Haku is claimed to be the common ancestor between the vendor and the vendees. However, this diagram or relationship is not established from the documentary evidence consisting of the pedigree‑table i.e. Exh.D.l. The pedigree‑table does not show the names of the vendees although the name of Islam‑un‑Din was traced as Ibrahim whereas the ancestor of Sharfu was traced as Dana. However, there is no other document to connect the aforesaid Ibrahim and Dana with Haku who has been stated by the oral witnesses to be the common ancestor. In such a situation and since the oral witnesses being interested are not supported by the documentary evidence, therefore, I find myself unable to agree with the learned trial Court that, in fact, the vendor and the vendees had a common ancestor named Haku. It is particularly so when this relationship was never specifically impleaded from the very start of the case. It may be pointed out here that as already stated above, the relationship of the vendees with the vendor was impleaded, for the first time through an amendment in the written‑statement. If it is so, then in the absence of any documentary evidence such as pedigree‑table, the oral and interested evidence cannot be given by any worth to non‑suit the appellants plaintiffs. On the contrary, it is admitted in the oral evidence by the respondents‑plaintiffs that they. are not the owners in the village whereas the appellants‑plaintiffs are shown to have such a quality. Since the respondents‑defendants have failed to prove that they are' the collaterals of the vendor, and as they had no land in the village before the purchase of the land in dispute, therefore, the appellants plaintiffs had a superior right of pre‑emption qua them and the finding to the contrary by the learned trial Court is not sustainable in the eye of law, accordingly, reserved the finding of the learned trail Court on Issue No. l and hold that the appellants had a superior right of pre‑emption qua the respondents‑defendants."

11. The learned counsel for the respondent referred to AIR (sic) Pesh. 80(1), the relevant portion of which is reproduced below in extenso:‑‑

"The Pre‑emption Act contemplates a reasonable chance of succession as an heir, and not one based on traditional membership of the same tribe. Where the plaintiff may be one of the proprietary body of the village and may perhaps under some customary rule succeed the vendor in the case of failure of all his heirs, he cannot be considered to be an heir."

He also placed reliance on the authority PLD 1963 SC 191 in this connection.

12. The learned counsel for the respondent has contended that there was no misreading of evidence by the First Appellate Court. That merely on the ground that the view of the learned First Appellate Court was erroneous a second appeal will not lie. '

13. Commenting on the evidence of D.W.1 and D.W.2, the learned counsel for the respondents has said that none of them have stated that they were heirs of the vendor. They have only' referred to a general relationship based on brotherhood which was not enough in this case.

14. Comparing the two judgments of the learned Courts below, I am of the view that the judgment of the learned ‑Additional District Judge was well reasoned. He‑has correctly compared the relationship reflected in his table in para. 9 of his judgment. He was also right in holding that initially the vendees did not base their case on their relationship. This plea was taken later on but it could not be substantiated.

15. In the second appeal, this Court has limited powers.. A party coming in a second appeal has to bring its case under the ambit of section 100 of the C.,P.C., which says: .

100. Second appeal .‑‑‑ Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:‑‑‑

(a) The decision being contrary to law or usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. "

16. In the case of Karamat Ali PLD 1963 SC 191, it was observed that the 'High Court in some appeals have no jurisdiction to go into question relating to the weight to be attached to a particular item of evidence.

17. I do not find the findings given by the learned First Appellate Court contrary to law or the decision having failed to determine some material issue of law or having committed substantial error or defect in the procedure which may possibly have produced an error or defect in the decision under reference. Thus, this second appeal has no merits and the same is dismissed with costs.

H.B.T./S‑430/L Appeal dismissed.