GHULAM MOHY-UD-DIN (deceased) Versus MUHAMMAD SANA ULLAH (deceased)

AMIN-UD-DIN KHAN, J.--- Through this civil revision petitioners have challenged the judgment and decree dated 7.8.2006 passed by the learned Additional District Judge, Mianwali whereby appeal filed by the respondent Muhammad Sana Ullah, the rival pre-emptor, was accepted and the judgment and decree dated 5-2-1983 passed by learned trial court whereby suit of the petitioners was decreed and that of rival pre-emptor was dismissed, was set aside.

2. Brief facts of the case are that vendees/defendants purchased 53 kanals 18 marlas land through sale deed registered on 25.2.1977 for a consideration of Rs:1,00,000/-. Thereafter mutation No. 1274 was also attested on 12.3.1977. Plaintiffs- petitioners filed a suit to pre-empt the sale of said land on 21.2.1978 mainly on the ground of being "Yak Jaddi" of the vendors. Respondent Muhammad Sana Ullah along with six others also filed a suit on 23.2.1978 to pre-empt the said sale. Subsequently, six others disassociated him from the suit, therefore, respondent Muhammad Sana Ullah continued with the same. Learned trial court consolidated both the suits in the suit filed by the petitioner which was prior in time and the petitioner was considered as the pre-emptor and the other plaintiff as rival pre-emptor and consolidated issues were framed on 22.3.1979. The evidence of both the parties was recorded and learned trial court decreed the suit of the petitioner/pre-emptor vide judgment and decree dated 5.2.1983 and dismissed that of the rival preemptor/respondent. On appeal the learned first appellate court accepted the appeal of the rival pre-emptor and decreed the suit vide judgment and decree dated 17.7.1984 and reversed the findings whereby suit of the petitioner/pre-emptor was decreed. Said decree was challenged before this Court through Civil Revision No. 1793 of 1984 by the petitioner which was accepted vide judgment dated 14,9.2001 and the matter was remanded to the learned first appellate court with a direction to decide Issue No. 1 afresh in accordance with law and it was also observed that application filed before this Court for permission to produce additional evidence may be filed before the learned first appellate court who shall decide the same on its own merits in accordance with law. After remand learned first appellate court again reversed the findings on Issue No. 1 which is with regard to superior right of pre-emption and decreed the suit of the rival pre-emptor/respondent No. 1 and dismissed that of the petitioner/pre-emptor. The cross-objections titled "Muhammad Afzal etc. v. Muhammad Sana Ullah etc." filed by the vendees were also dismissed. It would be important to note here that after dismissal of the cross-objections by the vendees, they have not further contested the matter and they have not come to this Court.

3. Learned counsel for the petitioners argues that petitioner (Ghulam Mohy-ud-Din) has specifically pleaded in the plaint that he is son of cousin of the vendors whereas the rival pre-emptor has stated that he is "Yak Jaddi" without specifically mentioning the relation with the vendors, therefore, the evidence and case built upon the pleading by the respondent is not sustainable under the law and further that the learned first appellate court has wrongly reversed the well-reasoned findings of the learned trial court whereby the petitioner/pre-emptor was declared to be having superior right of pre-emption as being "Yak Jaddi" and the findings of learned first appellate court are not sustainable under the law. States that statement of CW-1 has been if ignored and further that when brothers and sisters of the plaintiffs were associated by the rival pre-emptor in a suit and right of preemption being "Yak Jaddi" was claimed by all the pre-emptors, it means that right of plaintiff has been admitted by the rival pre- e emptor. While relying upon "Allah Yar and 18 others v. Ghulam Jilani and 3 others" (PLD 1995 Lahore 409), "Rehman v. Noora deceased through his L.Rs." 1996 SCMR 300, "Muhammad Mal Khan v. Allah Yar Khan" (2002 SCMR 235), "Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others" (PLD 2010 Supreme Court 604) "Umar Din deceased through LRs and others v. Abdul Rahim and others" (2005 SCMR 495) "Mst Nur Jehan Begum through Legal Representatives v. Syed Muitaba Ali Naqvi" (1991 SCMR 2300) "Ch. Allah Ditta v. Abdul Aziz" (1984 CLC 651), "Pir Muhammad Yunus Shah and 10 others v. Abdullah and 2 others" (1992 CLC 15) and "Jameel Ahmed v. Saifuddin" (PLD 1994 Supreme Court 501) prays for acceptance of this civil revision and restoration of the decree passed by the learned trial court.

4. On the other hand, learned counsel for the respondents argues that pleading superior right on the basis of "Yak Jaddi" is absolutely no defect without mentioning the real relation with the vendors. Further that plaintiff opted to produce documents only in his affirmative evidence and opted not to appear as a witness or produce any other witness at the time of affirmative evidence, therefore, the evidence got recorded by him at the rebuttal stage cannot be read in affirmative evidence and states that the findings of learned first appellate court are absolutely in accordance with law. Further that through forgery and fraud by interpolation in the record the same was produced in evidence and on the complaint of the respondent a case was got registered by the District Collector against the petitioner. Argues that learned first appellate court has thoroughly examined the evidence available on the file and evaluated the same in accordance with law and rightly accepted the appeal of the respondent/rival pre-emptor. Further argues that the plaintiff has produced Exh.P4 to show that he is "Yak Jaddi" of Noor Hussain and Ghulam Aysha the alleged vendors who are grandson and daughter of Muhammad Shafi whereas admittedly the vendors of whom the respondent is "Yak Jaddi" are grandson and granddaughter of Ghulam Mohy-ud-Din. This fact is clear from Exh.D.29 the mutation of inheritance of Noor Hussain and Ghulam Aysha, which is bearing No. 4285 attested on 20.7.1955. While relying upon "Muhammad Hussain and others v. Muhammad Khan" (1989 SCMR 1026), "Muhammad Naeem and others v. Ghulam Muhammad and others" (1994 SCMR 559) "Khuda Bakhsh v. Habib Ullah" (1999 SCMR 1800) and "Mst. Parveen v. Mst. Jamsheda Bezum and another" (PLD 1983 Supreme Court 227) prays for dismissal of the civil revision.

5. 1 have heard learned counsel for the parties at length, gone through the record and findings recorded by the courts below as well as case law relied by learned counsel for the parties.

6. So far as the argument of learned counsel for the petitioners that respondent/rival pre-emptor has not specifically pleaded his relation with the vendors, therefore, he cannot lead evidence to prove that he is "Yak Jaddi" when only it is pleaded that he is "Yak Jaddi" whereas plaintiff-petitioner has pleaded that he is son of cousin of the vendors. I am unable to agree with the arguments advanced by learned counsel for the petitioners to this extent that in a pre-emption suit filed under section 15 of the Punjab Pre-emption Act, 1913 on the basis of pleading that plaintiff being "Yak Jaddi", of vendors, it was sufficient and not necessary to be pleaded that what relation he has with the vendors and further argument that when the rival pre-emptor associated with him, the brothers and sisters of the petitioner and others and claimed the "Yak Jaddi" of the vendors, argument that in this way the relation of plaintiff-petitioner has also been admitted with the vendors. I also do not agree with the arguments of learned counsel as admittedly the pleadings cannot be considered and used as evidence in the suit. If in a suit filed by the rival pre-emptor the brothers and sisters of the present plaintiff were associated and all the plaintiffs of the suit of rival pre-emptor claimed the superior right of pre-emption on the basis of "Yak Jaddi" of the vendors and subsequently the brothers and sisters of the present petitioner/pre-emptor disassociated from the suit of rival preemptor, therefore, the claim of the plaintiff-petitioner that his relation has been admitted with the vendors is not correct and plaintiff-petitioner cannot take the benefit of that pleading when his brothers and sisters have disassociated them from the suit of rival pre-emptor.

7. Now comes the evidence that who from the contesting pre-emptors remained successful to prove his superior right of pre-emption as the vendees have not challenged the decree any further and no one is present before this Court even to defend this civil revision and further point is that after the remand by this Court vide order dated 14.9.2001 in Civil Revision No. 1793 of 1984 only Issue No. 1 is in issue now and the findings on other issues have been confirmed. It is important to note that learned Additional District Judge vide judgment and decree dated 17.7.1984 when decreed the suit in favour of rival pre-emptor/respondent which was subject matter of Civil Revision No. 1793 of 1984, on Issue No. 6 learned Additional District Judge has recorded the findings that suit of Ghulam Mohy-ud-Din is "Benami" for the benefit of Muhammad Siddique and suit has not been instituted for his own benefits. Perusal of statement of petitioner-plaintiff when he appeared as PW-1 confirms the same.

8. Now comes the crucial point that who amongst the pre-emptors succeeded in proving that he is "Yak Jaddi" of the vendors. Before starting the discussion and scrutiny of evidence produced by the parties, the fact that when issues were framed on 22.3.1979 plaintiff-petitioner opted to produce documentary evidence only in the statement of his counsel on 19.4.1979, these documents are Register Haqdaran Zameen (Exh.P.I), Copy of Sale Deed (Exh.P.2), Shajra Nasab (Exh.P.3), copies of mutations (Exh.P.4 to Exh.P.7) and Khasra Girdawri as Exh.P.8 and the counsel made the statement that he will get the statement of plaintiff recorded in affirmative and rebuttal evidence at the time of rebuttal evidence. Exh.P.3, which has also been marked as Exh.P.4 shows that Noor Hussain and Ghulam Aysha are son and daughter of Sultan Ahmad who is son of Muhammad Shafi. The evidentiary value of this document will be discussed in the later part of the judgment. This document shows that the father of the petitioner Murid Hussain is son of Bahauddin, who is son of Muhammad Shafi whereas the evidence produced by the respondent/rival pre-emptor in the shape of Exh.D.21, Exh.D.24, Exh.D.27 and Ex11.D.29 clearly shows that the land was owned by Sultan Ahmad son of Ghulam Mohy-ud-Din as Exh.D.29 is the mutation of inheritance through which the suit land has been devolved upon the vendors Noor Hussain and Ghulam Aysha. Exh.D.21 which is "Fard Intikhab" clearly shows that originally the land measuring 53 kanals 18 marlas was owned by Sultan Ahmad son of Ghulam Mohy-ud-Din according to Jama Bandi for the year 1951-1952 in Khata No. 386/372, which was devolved upon the vendors Noor Hussain and Ghulam Aysha and in the year 1955-1956 Khata of this land was 407/386 and in the Jamabandi pertaining to year 1958-1959 its Khata was 475/407, in Jamabandi for the year 1966-1967 it was 380/475 and in the next Jamabandi i.e. 1970-1971 khata of this land was 899/880 and finally this land remained in the ownership of vendors till 1974/1975, Jamabandi for the said period shows that its khata number was 915/899. Further the death certificate of Sher Muhammad which is Exh.D.23 shows that he is son of Din Muhammad who was son of Ghulam Mohy-ud-Din. By scrutiny of evidence it is clear that petitioner-plaintiff claims to be the great grandson of Muhammad Shafi. This version has been controverted through copy of inheritance mutation No. 4285 attested on 27.7.1955. Exh.D.29 which clearly shows that Sultan Ahmad the father of Noor Hussain and Ghulam Aysha vendors was son of Ghulam Mohy-ud-Din and not Muhammad Shafi as claimed by the petitioner-plaintiff. The documents Exh. D.24 and Exh.D.27 along with the Death Certificate Exh.D.23 of Sher Muhammad father of the respondent/rival pre-emptor shows that Sher Muhammad was son of Din Muhammad who was son of Ghulam Mohy-ud-Din. DW.1 and DW-2 have fully corroborated pedigree tables Exh. D.24 and Exh.D.27. DW.2 one of the vendors has admitted in his cross-examination that Muhammad Sana Ullah is his nephew who is son of Sher Muhammad and Sher Muhammad is son of Din Muhammad. The learned trial court directed Sadar Kanogo, Mianwali to produce some documents but in spite of Sadar Kanogo, Mianwali, one Fateh Muhammad, Muharrer/Record Sadar Kanogo, Mianwali appeared. His statement is also not helpful for the petitioner-plaintiff. While going through the findings recorded by the learned Additional District Judge I have noticed that the learned first appellate court has noted that on the application of the rival pre-emptor Sana Ullah a criminal case was got registered against Ghulam Mohy-ud-Din and Muhammad Siddique for interpolation in the record before the District Collector and further that the documents Exh.D.22, Exh.D.23 and Exh.D.29 were never challenged by the petitioner-plaintiff before any forum, therefore, said document can be safely relied which clearly show that the rival pre-emptor/respondent proved that he is nephew of the vendors. Learned counsel for the respondents has pointed out that in the statement of DW-2 Noor Hussain the plaintiff tried to rub the part of cross-examination where he stated that Sana Ullah is his nephew. Original record is before me, I have noticed that in the cross-examination where such statement of DW is mentioned, through cut of blade the paper has been damaged and a piece of paper has been removed. I have requisitioned the record of Civil Revision No. 1793 of 1984, in which at Page No. 99 certified copy of statement of DW-2 is available and at Page No. 103 the cross-examination by the counsel of the plaintiff i.e. present petitioner is available. This certified copy was taken before the cutting and removing the piece of paper as mentioned supra which reads as follows:--

When the learned Additional District Judge has recorded the finding that DW-2 has admitted that Sana Ullah is his nephew, in these circumstances, I cannot disagree with the fact recorded by the learned Additional District Judge.

9. I am clear in my mind that when a plaintiff of a suit opts to get his statement recorded at the time of rebuttal evidence the part of his statement with regard to affirmative evidence cannot be considered and cannot be read in affirmative evidence because it is the principle of natural justice that when a plaintiff is required to produce affirmative evidence he must produce the same at the time of his turn and when he opts not to produce the oral evidence and to appear as his own witness the other side has no opportunity to go through or see that what affirmative evidence is in the mind of the plaintiff, therefore, in that eventuality defendant has no occasion to rebut the affirmative part of plaintiffs evidence, therefore, the evidence of the plaintiff- petitioner when he got recorded the same after the evidence of the rival pre-emptor can only be read in rebuttal evidence and the only documentary evidence specially 'Shajra Nasab' showing the superior right of pre-emption produced in the statement of the learned counsel for the plaintiff-petitioner does not prove the superior right as it is not per-se admissible, therefore, no benefit of that document can be given to the petitioner-plaintiff. In these circumstances, when at the time of turn of the defendant-rival pre-emptor there was no evidence in support of the claim of the plaintiff, therefore, the evidence produced by the defendant which has rightly been scrutinized and given weight thus the findings recorded by the learned first appellate court are in accordance with law.

10. In view of what has been discussed above, plaintiff-petitioner failed to make out a case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. and failed to make any dent in the findings recorded by the learned first appellate court. Resultantly, this civil revision having no substance stands dismissed.

ZC/G-1/L Revision dismissed.