MESSRS MUKHTAR BROTHERS Versus MST. HAWA BAI ADMANI
Land measuring 22 Kanals 17 Marlas situated in the area of Village Meer, Tehsil Kharian was sold by Muhammad Ghaus to Abdul Auz vendee (respondent No.1) for an ostensible sale price of Rs.4,000.
2. Muhammad Aslam petitioner and Amanat Ali respondent No.2 brought their respective suits to pre‑empt this sale. The learned trial Judge, after recording the evidence of the parties and hearing their counsel, vide his judgment and decree, dated 3‑11‑1977, decreed the suit of Muhammad Aslam Petitioner to the extent of 8 Kanals 15 Marlas on the payment of Rs.1,637.20 and that of Amanat Ali respondent to the extent of 11 Kanals 15 Marlas on the payment of Rs.1,835.95. It appears that Abdul Aziz vendee‑respondent withdrew the pre‑emption money deposited for him by the pre‑emptors and also delivered possession to Muhammad Aslam petitioner pre‑emptor to the extent of his share. However, aggrieved by the above decision of the trial Court, Amanat Ali respondent went up in appeal and the learned Additional District Judge, Gujrat, vide his judgment and decree, dated 17‑3‑1980, not only dismissed the appeal but also the suits of both the pre‑emptors after holding on the basis of additional evidence that Abdul Aziz vendee was also a co‑owner in the property and the pre‑emptors had no superior right of pre‑emption. Aggrieved by these findings, Muhammad Aslam petitioner came up in revision to this Court.
3. It is argued on behalf of the petitioner that the learned Additional District Judge, Gujrat, of his own accord started reading into evidence the copies of the Revenue Record available on the file but not having been exhibited by the trial Court and in view of the contents of those documents came to an erroneous conclusion that Abdul Aziz vendee‑respondent was also a co‑owner in the disputed property and his rights being at par with his opponents, their pre‑emption suits had to be dismissed. According to the learned counsel, the learned Additional District Judge himself noted in the impugned judgment that Abdul Aziz vendee‑respondent had, before the trial Court, made an attempt to bring the copies of those very Revenue Record on the file by way of additional evidence but he was not allowed to do so and even a revision filed by him against the order of the trial Judge had failed. In a situation like this, the learned Additional District Judge had no authority to re open the matter which had earlier been finalised by a Court of his status by the dismissal of civil revision, nor he could proceed to read the entries of Revenue Record available on the file but not admitted in evidence by the trial Court, he adds.
4. Learned counsel for Amanat Ali rival pre‑emptor (respondent No.2) supports the contention of the petitioner's counsel and requests that the revision petition may be accepted and the suit of the rival pre‑emptor may be decreed in accordance with the findings of the trial Court.
5. The revision petition has, however, been opposed on behalf of the learned counsel for Abdul Aziz vendee (respondent No.1) on the ground that there being no doubt in the authenticity of the entries of Revenue Record available on the file, the learned Additional District Judge could read it in evidence in view of what was held in Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (WP) Baghdad‑ul‑Jadid 96).
6. In the light of the aforesaid authority a Court can read as evidence, in appropriate cases the contents of authentic documents available on the record but somehow or other not already formally admitted into evidence by placing exhibits thereon and there would have been no objection to the learned Additional District Judge's reading into evid.‑rice the contents of the Revenue Record available on the file of‑the trial Court, after affording the opposite party the opportunity of producing evidence in rebuttal but the situation in the instant case was quite different. Abdul Aziz vendee (respondent No.1), who has not filed appeal against the judgment and decree of the trial Court, nor he had made any formal request to the appellate Court for reading the documents in his evidence, had already tried his luck before the trial Court. He had applied to it for seeking permission to produce in his evidence the copies of the Revenue Record by way of additional evidence and his request had been turned down. He went up in revision against that order of the trial Court but remained unsuccessful as his revision was also dismissed. He accepted the finality of that order and kept quiet. So much so that he even did not file appeal against the judgment and decree of the trial Court, decreeing the suits of the rival pre‑emptors against him. It was perhaps for this reason that he did not re‑agitate the matter before the appellate Court but the learned Additional District Judge himself proceeded to espouse his cause by considering the copies of the Revenue Record as his additional evidence and reading its entries as his evidence dismissed the suits of both rival pre‑emptors. He adopted a wrong course and passed an illegal order because he could not re‑open the matter which, had already attained finality due to the abortive attempt of the vendee‑respondent to bring these documents on the record by way of additional evidence.
7. In view of the above, the civil revision is accepted, the impugned judgment and decree of the learned Additional District Judge are set aside and the judgment and decree of the trial Court arc restored, with no order as to costs.
AA./M‑236/L Revision accepted.