BAKHT BAIDAR Versus NAIK MUHAMMAD

Through this single judgment I shall dispose of. Civil Revision No.307 of 2003 (Bakht Baidar and another v. Naik Muhammad and another) and Civil Revision No.308, of 2003 (Pervaiz v. Naik Muhammad and others) as both emanate from single judgment, and decree dated 18‑2‑2003 passed by the learned District Judge/Zilla Qazi Dir at Timargara. Nark Muhammad respondent No.1 filed suit against the respondents/defendants for possession through pre‑emption of land measuring 28000 square feet in the Court, of learned Civil Judge Dargai Camp Court Chakadara. The said suit was resisted by the respondents/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit for land measuring 28000 square feet in favour of respondent/plaintiff vide judgment and decree date 2‑6‑2000. Petitioners/defendants Nos. 1 and 2 feeling aggrieved with the said judgment and decree filed Appeal No.42/13/Neem whereas Parvaiz petitioner/defendant No.3 who had sold the property also filed Appeal No.41/13 Neem of 2000 in the Court of learned District Judge/Zilla Qazi Dir at Timargara. Both the appeals were dismissed vide judgment and decree dated 13‑11‑2000. Being not contended with the judgment and decree of the Courts below the petitioners/defendants Nos.1 and 2 filed Civil Revision No.32 of 2002 whereas Parvaiz petitioner/defendant No.3 has filed Civil Revision No.29 of 2001. Both the Civil Revisions were accepted by this Court vide judgment and decree dated 16‑12‑2002 and the case was remanded back to the learned District Judge with the direction to give decision on point of controversy chalked out by the learned Appellate Court alongwith the question of as to whether the Talbs were made by the plaintiffs in accordance with law. On receipt of the case file the learned District Judge Dir Paeen once again dismissed the appeals vide judgment and. decree dated 18‑2‑2003. Being not contended with the said judgment and decree, the petitioners have filed revision petition in hand.

2. Mr. Abdul Sattar Khan the learned counsel for the petitioners in Civil Revision No.307 of 2003 argued that after the remand of the case to the Appellate Court by this Court the learned District Judge was supposed to give issue‑wise findings as the petitioner had raised various objections in the memo. of appeal but the same was not done, therefore, the judgment/decree passed by the Courts below were not in accordance with the requirements of law.

3. It was also argued that respondent No. 1/plaintiff had failed to prove his case through reliable evidence. The petitioners had in the written statement denied the superior right of pre‑emption of respondent No. 1/plaintiff in their written statement, but the respondent No. 1/plaintiff failed to prove that he was owner of continguous property. Although in his statement recorded before the Court he claimed to have purchased land underneath Petrol Pump, but he neither produced any document of its purchase nor the vendor of the said property was produced to prove the said fact which shows that he was not owner of the contiguous property.

4. It was also argued that the respondent No. 1/plaintiff failed to prove that the petitioners had purchased 28,000 square feet land, on the contrary the, petitioners not only proved sale‑deed dated 27‑5‑1997 Exh.D.W.1/2 by producing its marginal witnesses namely Murad Ahmad D.W.2 and Bakht Rawan D.W.3, but the vendor namely Parvaiz also in his written statement stated that he had sold land measuring 15443 square feet to the petitioners, but the Courts below on the basis of presumptions granted decree for land measuring about 28,000 square feet, which is not maintainable.

5. It was also argued that Talbs were not made in accordance with law. The alleged sale took place on 20‑5‑1997 as is clear from sale‑deed Exh.P.W.1/2, but Talb‑i‑Muwathibat was made on 27‑4‑1997 and notice of Talb‑i‑Ishhad was given on 7‑5‑1997 i.e. before the sale actually took place. The Courts below have wrongly drawn inference that the sale took place on 27‑4‑1997.

6. Miss Nusrat Yasim the learned counsel representing Parvaiz petitioner in Civil Revision No.308 of 2003 argued that, petitioner (Parvaiz) has stated in his written statement that he had sold land measuring 15443 square feet to petitioners of Civil Revision No.307 of 2003. The said written statement was on solemn affirmation and the same had evidentiary value under Order 6 rule 15, C.P.C. and the same could not be discarded by the Courts below: It was also argued that the respondent No. 1/plaintiff was not owner of the contiguous property, therefore, had no right of pre‑emption.

7. On the other hand Sh. Wazir Muhammad, Advocate representing the respondent No. 1/plaintiff argued that this Court had rightly remanded the case to the learned Appellate Court vide its judgment dated 16‑12‑2002 with the direction to give its findings on points formulated by it and also to give its findings as to whether the Talbs were made in accordance with law. The learned Appellate Court has dealt with the formulated points in detail, hence not only remand order of this Court was complied with but the provisions of Order 41, rule 31, C.P.C. are were also fully complied with.

8. On merits the learned counsel replied that the respondent/plaintiff had proved his case through reliable evidence. Having come to know about the sale in 'question, he made jumping demand ‑and then sent notice of Talb‑e‑Ishhad on 7‑5‑1997 to petitioners of Civil Revision No.307 of 2003 and thereafter sent various Jirgas to them to accept the superior right of pre‑emption of respondent/plaintiff, but not only the notice of Talb‑e‑Ishhad was not replied despite its receipt but they kept on delaying the matter by telling the Jirga Members to wait for a while. This indicates that the oral sale had taken place, but in order to put a shame defence a sale‑deed dated 20‑5‑1997 was manufactured by mentioning therein that only land measuring 15443 square feet was sold, but this attempt of the petitioners was done away with by Murad. Ahmad D.W.2, their own witness, who stated that site- plan EXh.D.W.1/3 was prepared to save the property in dispute from pre‑emption. The petitioners were bound by the statement of their own witness.

9. It was also argued that the respondent No. 1/plaintiff had proved that he was owner of the contiguous property. This fact was also admitted by Murad Ahmad D.W.2.

10. It was further argued that the petitioners failed to produce Parvaiz from whom they had purchased the property in dispute to prove that they had only purchased 15443 square feet. Although Parvaiz filed his written statement but the said written statement could not be used as a substantial piece of evidence. Reliance in this regard was placed on the following judgments:‑‑

(i) Muhammad Ishaq v. Erose Theatre and others (PLD 1977 SC 109) and

(ii) Mst. Khairun Nisa and 6 others, v. Malik Muhammad Ishaque and 2 others (PLD 1972 8C 25).

The petitioners failed to produce best evidence, therefore, the Courts have rightly decided against them.

11. I have heard the arguments of the learned counsel for the parties and perused the record.

12. The argument of the learned counsel for the petitioner that the failure of the learned Appellate Court to give issue‑wise findings was in violation of remand order of this Court as well as the provisions of Order 41, rule 31, C.P.C. has no force. This Court vide its judgment dated 16‑12‑2002 had accepted Civil Revisions Nos.29 of 2001 and 32 of 2002 with the following observations:‑‑

"Therefore, the requirements of Order 41, rule 31, C.P.C. were not complied with. Both the revision petitions are allowed and the impugned judgment and decree passed by the learned Appellate Court is set aside and the cases are remitted back for decision on the points of controversy chalked out by the learned Appellate Court alongwith the question as to whether the Talbs were made by the plaintiff in accordance with law. The needful be done by the Appellate Court within a period of four months. Parties are directed to appear before the learned District Judge Dir at Timargara on.15‑1‑2003. Office is directed to send back the record to the Court concerned immediately."

13. The perusal of the impugned judgment/decree passed by the learned Appellate Court dated 18‑2‑2003 shows that the learned Appellate Court has given its findings on all the points of controversy chalked out by it as well as on the question as to whether the Talbs were made in accordance with law or not, therefore, the remand order of this Court has been fully complied with. So far as the question of giving issue‑wise findings by the Appellate Court is concerned, the same is not the requirement of law as under Order 41, rule 31, C.P.C. the Appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned.' If the Appellate Court chalked out a point of controversy and gives its findings thereon which are duly supported by reasoning, then the Appellate Court would be said to have given its judgment in accordance with the provisions on Order 41, rule 31, C.P.C. Reliance in this regard is placed on, the following judgments:‑‑

(i) Umar Din v. Ghazanfar Ali and 2 others (1991 SCMR 1816),

(ii) Mst. Husna Bano v. Faiz Muhammad Magsi and another (2000 CLC 709),

(iii) Iqbal Khan through Legal Heirs and 2 others v. Muhammad Ilyas and 5 others (1998 CLC 1216),

(iv) Karim Bux v. P.O. Sindh and others (1998 CLC 27) and

(v) Ghulam Hussain and another Y. Muhammad Hussain (1986 CLC 770).

14. Since the learned Appellate Court, as mentioned above on receipt of remand order not only dealt with the points of controversy which it had earlier formulated, but it had also given its findings on additional point as to whether the Talbs were made in accordance with law or not and the said judgment and decree passed by the learner Appellate Court has been given by application of its conscious mint after discussing the entire evidence on record, therefore, the said judgment and decree are in accordance with the provisions of Order 41, rule 31, C.P.C.

15. The argument of the learned counsel for the petitioners that respondent No. 1/ plaintiff failed to prove that he was contiguous owner and shared the amenities attached to the property in dispute, hence had superior right of pre‑emption also has no substance. The claim of the respondent No.1/plaintiff was that he had superior right of pre‑emption being "Shafi Jar" and "Shafi Khalit" i.e. on the Southern and Western sides of the property in dispute he was owner of contiguous property, and was sharing the amenities of the property in dispute. In order to prove this fact he appeared himself as P.W.1 and stated the same facts. His version was also supported by Fateh Rehman P.W.2, who stated that on the Western side the plaintiff had his property on which he had constructed Petrol Pump. Similarly Barehman P.W.3 also supported his version that the plaintiff had constructed a Petrol Pump on the contiguous property and he was serving in the said Petrol Pump since 1985. What to speak of the plaintiff's evidence, the defendant Mumtaz when appeared as D. W.1 also admitted in cross‑examination.

16. Though this witness stated that the land underneath the Petrol Pump was owned by Sher Afzal but the petitioners failed to produce Sher Afzal who was their brother‑in‑law to state that he was the owner of the property underneath the Petrol Pump. He further admitted in the cross‑examination.

17. The petitioner/defendants also examined Murad Ahmad as D.W.2. The said witness also admitted in cross‑examination:‑‑

18. It is worth‑mentioning that in order to defeat the right of pre emption of respondent No. 1/plaintiff the petitioners/defendants had with the written statement annexed a site‑plan duly prepared by them which was placed on record as Exh.D.W.1/3 (Wrongly mentioned as D.W.3/1 in the impugned judgment). Murad Ahmad D.W.2 in fact thwarted the attempt of petitioners/defendants to show that the property in dispute was not contiguous to the property owned by respondent No.1/plaintiff by admitting in cross‑examination;‑‑

19. The above mentioned evidence clearly shows that the respondent No.1/plaintiff not only proved that he was owner of the contiguous property, but he also proved that the property in dispute' was situated between his house and Petrol Pump and that he was using the said property for his passage from his house to Petrol Pump. This fact stands admitted in the evidence of petitioners/defendants also. Especially Murad Ahmad D.W.2 has made it very clear that site plan Exh. D. W. 1/3 was prepared to show that the property in dispute was not contiguous to that of respondent No. 1/plaintiff's property. It is by now settled law that a party is bound by the evidence it produces i.e. party producing a witness is bound by whatever deposition the witness makes. He cannot turn around that adverse statement given by his witness may be excluded from consideration particularly when witness is not declared hostile. Wisdom in this regard has been sought from Wali Muhammad v. Sarwar Bibi J (2001 SCMR 871) and Allah Dad v. Government of Pakistan and others (1989 CLC 1571).

20. The argument of the learned counsel for the petitioners that the alleged sale took place on 20‑5‑1997 and Talb‑e‑Muwathibat as well as Talb-i‑Ishhad were raised much before the sale has no force at all. The claim .of the respondent No.1/plaintiff is that the petitioners/defendants has purchased the property in dispute at the rate of Rs.15 per square foot and he came to know about the sale through Fateh Rehman P.W.2 on 27‑4‑1997 at 9‑40 a.m. It was Sunday and immediately on receiving the said information, he raised Talb‑e‑Muwathibat in presence of Bakht Munir and Barehman (P.W.3) and without wasting any time he went to village Bagh Mandi, contacted petitioners/defendants in presence or Fateh Rehman, Bakht Munir and Mahboob Subhani and informed him about his right of pre‑emption on which the petitioners/defendants stated that it was easy matter and asked for some time to settle it. On the next day i.e. 28‑4‑1997 a Jirga consisting of Muhammad Iqbal, Maulana Hazrat Muhammad and Dost Muhammad was sent to petitioners/defendants with the request to accept the superior rights or respondents/plaintiffs and on receipt of the sale consideration hand over the disputed property to him. Before the said Jirga members the petitioners/defendants again asked for some time and promised to settle the matter mutually. Thereafter, on 1‑5‑1997 Muhammad Iqbal again contacted the petitioners, upon which they requested to wait till 5‑5‑1997 and thereafter, for one week. It was on 7‑5‑1997 that notice of Talb‑e- Ishhad was sent to them. The said notice Exh.P.W.1/1 was duly witnessed by Fateh Rehman P.W.2 and Bareshman P.W.3, which was duly received, by the petitioners, but was not replied. Mumtaz D.W.1 admitted‑‑

The petitioner/defendant Mumtaz also admitted that the alleged sale‑deed Exh.D.W.1/2 was scribed after receipt of notice of Talb‑e‑Ishhad Exh.P.W.1/1. The question that arises here is that if sale of the disputed property had not taken place before 27‑4‑1997, then why the petitioners/defendants kept on telling Jirga members that it was an easy matter and would be amicably settled. Another question that arises here is as to why despite receipt of the notice of Talb‑e‑Ishhad Exh.P.W.1/1 the same was not replied by the petitioners/defendants and why they did not come out with the plea that, they have purchased land measuring 15443 square feet. Answer to these questions is not available on record from the evidence produced by the petitioners/defendants. The conduct of the petitioners shows that they had purchased land before 27‑4‑1997 and the respondent No. 1/plaintiff got the knowledge of the said sale on the said date i.e. 27‑4‑1997 on which date he made Talb‑e‑Muwathibat and, sent successive Jirgas to petitioners. Even the admission of Mumtaz D.W.1 that the sale‑deed Exh.D.W.1/2 was scribed after the receipt of the notice Talb‑e‑Ishhad Exh.P.W.1/1 is sufficient to hold that the actual Tale of the property in favour of petitioners had taken place earlier, but they did not come out with the true facts before the learned trial Court rather in order to defeat the right of pre‑emption of respondent No.1/plaintiff, the alleged sale‑deed Exh.D.W.1/2 was manufactured.

21. The argument of the learned counsel for the petitioners that there is no evidence available on record that petitioners/defendants had purchased land measuring 28000 square feet, in fact they had purchased only 15443 square feet as is clear from sale‑deed Exh.P.W.1/2, I am afraid is of no help to him.

Firstly, because despite receipt of notice of Talb‑e‑Ishhad Exh.P.W.1/1, wherein the measurement of the pre‑empted land was mentioned was not replied by the petitioners i.e. they did not come forward to state that they .had only purchased land measuring 15443 square feet.

Secondly, Mumtaz D.W.1 admitted that sale‑deed Exh.D.W.1/2 was scribed after receipt of notice of Talb‑e‑Ishhad Exh.P.W.1/1.

Thirdly, the petitioners/defendants failed to prove site‑plan Exh. D. W.113 annexed with‑their written statement. Murad Ahmed D.W.2 the witness of petitioners/defendants in cross‑examination admitted that an attempt was made through site‑plan Exh.P.W.1/3 to show that respondent No.1/plaintiff was not owner of contiguous property.

Fourthly, Parvaiz from whom the property was purchased and who was made defendant in the suit was not examined by the petitioners, though the said witness was available in the village, therefore, the best evidence with them to prove that they had only purchased land measuring 15443 square feet was withheld. There is no explanation available on record as to why Parvaiz the vendor of the land who had filed his written statement was withheld from examining. In such‑like situation the presumption would be that in case Parvaiz would have been produced, his deposition must have been against the petitioners/defendants: Wisdom in this regard is sought from the following reported judgments: ‑‑

(i) Muhammad Mal khan v. Allah Yar Khan (2002 SCMR 235),

(ii) Mst. Kashmira Jan v. Mahtab Shah and 2 others (PLD 1977 Peshawar 27),

(iii) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1959 (W.P.) Peshawar 81).

(iv) Rameshwar Singh and another v. Bajit Lal Pathak and others (AIR 1929 Privy Council 95) and

(v) Sardar Gurbakhsh Singh v. Gurdial Singh and another. (AIR 1927 Privy Council 230).

Fifthly, the respondent No. 1/plaintiff has proved that the property in dispute was one compact plot and it was being cultivated by the same person who was cultivating it before the sale. There is nothing available on record to indicate that a portion of the said plot was sold or that any demarcation was ever made during the time of sale or thereafter by the vendor.

22. The above discussion leads me to the conclusion that it was land measuring 28,000 square feet which was sold by Parvaiz to petitioner/defendants. The Courts below have rightly appreciated the evidence available on record.

23. The argument of the learned counsel for the petitioners in (Civil Revision No.308 of 2003) that Parvaiz had filed his written statement which was affirmed on solemn affirmation, hence was admissible also has no force. No doubt by virtue of amendment introduced by Ordinance XII of 1973 and section 6 of Oath Act, 1873 pleadings are now required to be verified on oath. When the pleadings are verified on solemn affirmation or‑on oath, the same still have no legal value if its deponent does not make himself available for cross‑examination, in such circumstances the written statement loses all its force as a probative piece of evidence and cannot be acted upon and it cannot be used as substantive piece of evidence in a case. Reliance in this regard is placed on the following reported judgments:‑‑

(i) Mst. Khairun Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25);

(ii) Muhammad Ishaq v. Erose Theatre and others (PLD 1977 SC 109),

(iii) Muhammad Nawaz v. Jiand Rai and 2 others (1981 CLC 867),

(iv) Muhammad Yousaf Ishaqui (Represented by Legal Heirs v. Abdul Majid Khan and 5 others 1984 CLC 243),

(v) Muhammad Noor Alam v. Zair Hussain and 3 others (1988 MLD 1122),

(vi) Syed Muhammad Saleem v. Ashfaq Ahmad Khan and another (1989 CLC 1883),

(vii) National Bank of Pakistan v. Alam Industries Ltd. Karachi and 5 others (PLD 1992 Karachi 295),

(viii) Zafar Mirza v. Mst. Naushina Amir Ali (PLD 1993 Karachi 775),

(ix) Zahid Ali Khan v. Darul Uloom Naeemia Trust 1994 MLD 871) and

(x) Mst. Zareena and 5 others v. Syeda Fatima Bi (PLD 1995 Karachi 388).

24. In the case in hand, the petitioner (Parvaiz) before submitting his written statement had filed an application before the trial Court for deletion of his name. The plea taken by him in the said application was that he had sold the property in dispute to petitioners/defendants Nos.1 and 2 therefore, his position in the case is that of a stranger, therefore, he prayed for deletion of his name, but the Court did not accept the said application. Thereafter, the petitioner/defendant No.3 filed his written statement. After filing the written statement he neither appeared before the Court in person or through his attorney nor did he bother to pursue his case. If he (Parvaiz) had not sold land measuring 28,000 square feet the petitioners/defendants Nos. 1 and 2, none had stopped him to defend his unsold land but his conduct shows that he had sold land measuring 28,000 square feet to petitioners/defendants Nos.1 and 2 and he was not interested to defend the suit. The Courts below have rightly, appreciated the law applicable in this regard.

25. The Courts of competent jurisdiction have rightly appreciated the evidence available on record while passing decree in favour of respondent No.1/plaintiff and I have not been able to find out any I misreading/non‑reading of evidence or any material irregularity or any jurisdictional error or defect warranting interference in their concurrent findings. Resultantly, the revision petitions in hand are dismissed with no orders as to costs.

H.B.T./966/P Revisions dismissed.