BASHIR AHMAD Versus MST. NASEEM FATIMA
Mst. Memona was owner of land measuring 434 Kanals, 17 Marlas situated in Mauza Nasir Khan Wala, Tehsil Pakpattan, She sold the land to the present appellants vide Mutation No. 19, dated 24‑8‑1967 for a consideration of Rs.48,000. Appellant No.1 Bashir Ahmad died during the pendency of appeal and appellants Nos.1‑A to 1‑D have been impleaded as his legal heirs. Mst. Nasim Fatima respondent filed a suit for possession through pre‑emption claiming her superior right being co‑sharer in the Khata, owner in estate and her kinship with the vendor. The suit was resisted by the appellants inter alia on the ground that number of certain Khasra numbers have not been incorporated in the plaint correctly; the decree has been sought only for 422 Kanals and 17 Marlas by partial pre‑emption; that the suit was barred by time; that the same had been filed without proper authority; that the plaintiff does not possess superior right.
Out of the divergent pleadings of the parties, following issues were framed:‑‑
(1) Whether the suit is for partial pre‑emption? If so, what effect? OPD
(2) Whether the suit is barred by time? OPD
(3) Whether the suit has been improperly, instituted? OPD
(4) Whether the right of the plaintiff is superior? OPP
(5) Relief.
From plaintiff side, Naimat Ullah Khan (brother of the plaintiff) appeared as P.W.I being general attorney of the plaintiff and he tendered in defence copy of mutation Exh. P.1 copy of Jamabandi Exh.P.2. On 30‑1‑1969 evidence was closed on behalf of the plaintiff by tendering copy of general power of attorney Exh.P.3 by the learned counsel. From defendants/appellants side Mian Bashir Ahmad appeared as D.W.1 and his learned counsel tendered copy of mutation Exh. D.1 and copy of Register Haq Daran Zamin Exh.D.2. Exh.D.3 and Exh.D.4. The trial Court decided issue Nos.1, 2 and 3 for partial pre‑emption, suit barred by time and improperly instituted against the defendants and in favour of the plaintiff; issue No.4 of superior right was also decided in favour of the plaintiff and after hearing both the parties decreed the suit vide judgment and decree, dated 13‑4‑1969. Present appellants filed an appeal which was also dismissed by the learned Additional District Judge, Sahiwal vide judgment, dated 27‑1‑1970. Hence present Regular Second Appeal.
2. During the pendency of the appeal, this Court vide order, dated 3‑12‑1999 had framed an additional issue as under:‑‑
"What was the actual price paid by the each appellant in this case? OPD." and the case was remanded to the learned trial Court with the direction to decide the issue after giving opportunity of additional evidence to both the parties and the decision be sent within a period of three months. The respondents challenged the said order before the Honourable Supreme Court, but their petition for leave to appeal was dismissed by the Honourable Supreme Court vide judgment, dated 15‑4‑1991 as withdrawn. The learned trial Court decided this issue in favour of the defendants/appellants vide its finding, dated 13‑7‑1991 concluding that the sale was divisible; the vendees/appellants contributed the sale price according to their proportionate shares.
3. Ch. Saghir Ahmad, learned counsel for the appellants has raised the following contentions in support of his appeal:‑‑
(i) That the suit was liable to be dismissed for partial pre‑emption as in the plaint the description of the property was not given correctly; in the prayer of the plaint decree was claimed to the tune of 422 Kanals, 17 Marlas of land whereas the total land was 434 Kanals, 12 Marlas the preliminary objection was taken in this regard in the written statement filed on 8‑11‑1968, but the plaintiff never sought the amendment of the plaint till the evidence of the plaintiff was concluded when an application was moved by Naimat Ullah Khan claiming himself to be the attorney of the plaintiff for amendment of the plaint, the same was contested but was allowed by the trial Court on last date when the final judgment was passed without legal justification as the valuable right stood accrued in favour of defendants. Reliance has been placed on 1994 SCMR 2293 titled Mst. Imam Hussain v. Sher Ali Shah.
(ii) The appellants/defendants taken specific objection that the suit has not been instituted under proper authority; the power of attorney, in favour of Naimat Ullah Khan who had signed the plaint, was not competent to file the present suit for pre‑emption; the power of attorney has to be construed strictly; the suit was filed by an incompetent person and was liable to be dismissed. Reliance has been placed on Murid Hussain etc. v. Muhammad Sharif and another 1996 AC 299 and Gul Taj Begum v. I.a1 lqbal Hussain PLD 1980 SC (AJ&K) 60.
(iii) That the plaint has not been signed by Mst. Nasim Fatima herself and she failed to appear in the witness‑box as a witness; adverse inference should be drawn against her. Reliance has been placed on Feroz Khan and others v. Mst. Waziran Bibi 1987 SCMR 1647.
(iv) The superior right of pre‑emption was claimed by the plaintiff on the basis of her ownership in the estate and also co‑sharer in Khata on the basis of Khatoni No.89/90 as per Jamabandi Exh.P.1, the said land is not assessible to Land Revenue, therefore, she cannot be termed as owner of the estate to claim her superior right to pre‑empt agricultural land.
(v) That the plaintiff could not prove her relationship with the vendor to base her superior right.
4. On the other side, Malik::8harif Ahmad, learned counsel for respondents has argued that there is a concurrent finding of fact arrived at by both the Courts below and the same cannot be interfered with; that any clerical error in the plaint can be amended /corrected at any stage, reliance has been placed on PLD 1985 SC 345; that the signing of the plaint is merely a formality and it can be cured even at appeal stage; that the finding of the learned trial Court on additional issue is not sustainable under the law as the consideration amount was passed jointly as per entries in the mutation Exh.P.1 and the fact cannot be proved otherwise, by oral evidence; that non- appearance of the plaintiff in witness box is not fatal if the case was otherwise proved by evidence.
5. Heard. Record perused.
6. First of all, I would take issue No. 3
"Whether the suit has been improperly instituted?"
Both the learned Courts below have concluded that Naimat Ullah Khan P. W.1 is brother and general attorney of the plaintiff who brought on record the photocopy of the general power of attorney on 15‑1‑1969 which was allowed on 30‑1‑1969, therefore, onus to prove in genuineness of the signatures of the plaintiff on the plaint was on the defendants and they failed to get the signatures examined, through any handwriting expert. It has been further observed that Naimat Ullah Khan P.W.1 was duly authorized attorney. But perusal of record reveals that in the present case, the power of attorney placed on record as Exh.P.3 is, dated 4‑4‑1967 when the land in dispute was not purchased by the defendants/appellants so there was no authority to file the suit for pre‑emption. In case reported as Qadir Bakhsh v. Kh. Nizam‑ud‑Din PLD 1997 SC 1267, it has been held that if the property at the time of execution of power of attorney was not owned by the principal, the attorney had nothing to do or deal with the property or to file any suit or appeal in respect of property which was not subject‑matter of power of 'attorn6y; the Honourable Supreme Court in this case had allowed to take up this point even was not mentioned in the leave granting order and held that the appeal filed by an attorney who has not been specifically empowered for filing the suit for pre‑emption on behalf of his principal was incompetent. In case reported as 1995 CLC 1541, it was held that power of attorney having not authorized attorney to file or defend the suit in respect of the property in question and the suit filed on the basis of such power of attorney was not maintainable; at page 1545 it has been laid down that power of attorney must be construed strictly as given under the authority conferred specifically or by implication. Following the same principle, I am of the considered view that Niamat Ullah Khan, P.W.1 was not properly constituted attorney to file the suit, therefore, it was incumbant upon the plaintiff to appear in support of her plaint, failing which the inference can be drawn against her, particularly when specific objection was taken that the plaint has not been signed by her. In this belief, I am fortified by the authoritative pronouncements reported in 1996 CLC 161 and PLD 1980 SC (AJ&K) 60, relied upon by the learned counsel for the appellant, wherein it has been clearly laid down that if plaintiff or defendant failed to appear to support pleas raised in paint or written statement and offer himself to cross‑examine, then facts stated therein or the contention raised could not be relied upon. The plaintiff has failed to put herself in the witness‑box for cross‑examination on the facts alleged in the plaint then there was strongest possible circumstance to discredit the truth of her case. Despite the objection from the very beginning, non‑appearance of the plaintiff amounts to misuse of process of Court and the inference is to be drawn against the plaintiff: According to Naimat Ullah Khan, P.W.1, the plaint was signed by him as an attorney and also by the plaintiff herself and he got her signatures on the plaint, but if the plaint was signed by the plaintiff herself, then there was no need or necessity for the signatures of her attorney. Therefore, it can safely be concluded that the plaint was not instituted under the proper authority and the finding of both the Courts below on issue No.3 are erroneous and not sustainable under the law and are hereby reversed.
7. Issue No.1 is regarding the partial pre‑emption; pre‑emptor has to sue for whole of the property under sale, whenever departure is made the suit is not maintainable. In the present suit prayer was made for 422 Kanals, 17 C Marlas instead of 434 Kanals, 17 Marlas as Khasra No.43 was not included in the plaint. If some land is left at the time of filing of suit, the same can be included within limitation of one year otherwise suit is hit by partial pre‑emption. Both the learned Courts below concluded that it was a clerical mistake and amendment was allowed on the application filed by Naimat Ullah Khan, who, as already, held was not property constituted attorney, therefore, he had no authority to make the said application on which the permission for amendment was granted. The application was allowed by the learned trial Court on the same day in a summary and hasty manner when the valuable right had been accrued in favour of the appellants/defendants, as the limitation had already expired. I am of the opinion that allowing the amendment in a casual manner was not legal; the mis-description of the D property due to the negligence of the plaintiff had created valuable right in favour of the defendants/appellants; the suit was hit by partial pre‑emption; both the learned Courts below have erred in law and their findings cannot sustain. The same are reversed, by placing reliance on 1998 SCMR 1195 and 1990 CLC 1580.
8. Issue No.2 is regarding superior right of pre‑emption claimed by the plaintiff on the basis of her ownership in Khatooni No. 89/90 Khata No. 15 but as per copy of Jamabandi (Exh.P.1) pertaining to the year 1965‑66, the plaintiff does not own any land in Khata No.1 wherefrom the defendants' purchased 422 Kanals, 17 Marlas then she could not claim her superior right being sharer in Khata. The land owned by her i.e. Khatooni No.89/90 was not assessed to land revenue. It is settled law that the owner of the estate under section 15 of the Punjab Pre‑emption Act, means the proprietary body of the village; a man who owns a small piece of land un assessed to revenue uncultivated cannot be regarded as one of the owners of the estate; the land owned by the plaintiff in Khatooni No.89/93 is and respectively. The Revenue Record reflects that the same is not agricultural land as the column Nos.7, 8 and 9 for the source of irrigation, Lagan and the payment of revenue are left blank. The land as defined in section 3(1) of Punjab Pre‑emption Act means the same as in the Punjab Alienation of Land Act which means the land which is left for agricultural or pasture. The land of the plaintiff is and not cultivated since long and not assessed to land revenue hence cannot be termed as agricultural land, therefore, it can be concluded that the plaintiff does not possess superior right of pre‑emption against the defendants on the basis of the land owned either as sharer in Khata or owner in estate. It has been laid down in 1997 CLC 127 at page 130 that mere ownership of land in revenue estate would not be of much assistance because to be an owner of estate must own land in revenue estate which was also assessed to land revenue. Reference can be made to AIR 1940 Lah. 344 (Kint Ram v. Harbat Singh) 7 Indian Cases 213, PLD 1989 SC 373 (2) and PLD 1986 1 Lah.242.
9. There was also claim of superior right on the basis of kinship with the vendor Memona Begum. The pedigree‑table was not produced to show that relationship with vendor. The oral evidence led by the plaintiff on question of her relationship with vendor was inadmissible on account of provisions contained in section 30(5) read with section 5 or Evidence Act as held in Muhammad Hanif v. Ghulam Rasool 1980 SCMR 340, and PLD H 1976 SC 767. Naimat Ullah Khan (P.W.1) failed to prove as how the plaintiff was entitled to inherit the property of the vendor in case of her death particularly when there is no documentary evidence/pedigree‑table brought on record to support this plea, therefore, this qualification has not been established by evidence. Resultantly, the plaintiff has failed to prove her superior right to purchase.
10. It is true that under section 100 of C.P.C. concurrent finding is not generally interfered with in second appeal but same if based on inadmissible evidence and recorded in disregard of other provisions of Evidence Act not barred by being reversed. Reference can be made to 1980 CLC 1611.
11. Furthermore, the wisdom of legislature by giving superior right of pre‑emption on the basis of ownership in estate or co‑sharer in Khata was to maintain the exclusiveness of a particular tribe or proprietors in the revenue estate and the joint ownership of a family in a Khewat to the exclusion of strangers but by passage of time particularly after partition of sub‑continent and due to migration of population at large scale and their scattered settlement, this concept has undergone a radical change and has lost its basic purpose.
12. In view of my findings narrated above, I do not find it necessary to discuss/consider the finding on additional issue framed by this Court, In view of the above, the appeal is allowed; the judgments of the learned Courts below i.e. learned Additional District Judge, dated 27‑1‑1970 and learned Civil Judge, dated 10‑4‑1969 are hereby set aside. Resultantly, the suit of the respondent is dismissed. However, the parties are left to bear their own costs.
H.B.T./B‑29/L Appeal allowed.