MUHAMMAD AKRAM and another Versus Mst. FARIDA BIBI

CH. IJAZ AHMED, J.--- Brief facts out of which the present appeal arises are that appellants purchased land in question measuring 76 Kanals, 18 Marlas vide Mutation No. 149, dated 18-9-1995 from the original owners Muhammad Iqbal and Muhammad Alam for consideration of Rs.6,20,000. The land in question is situated in Khasras Nos.425, 426, 443 to 446, 451, 452, 359, 360 and 628, Khewat and Khatooni No.4/14 to 16 in village Saddowala Neewan. Predecessor-in- interests of respondents Mst. Atri Begum filed suit for pre-emption in the Court of Civil Judge First Class, Narowal on 28-9-1995 against present appellants/defendants. The contents of the plaint reveal that she came to know about the impugned sale on 24-9-1995. She made Talb-i-Muwathibat. She also made Talb-i-Ishhad by sending notice through registered post. She claimed her right of pre-emption on the basis of being beneficiary of joint amenities and contiguity (on the basis of the suit-land being adjacent to her land and the common passage) with the prayer that the decree for pre-emption be passed in her favour. During the pendency of the suit original plaintiff predecessor-in-interest of respondents Mst. Atri Begum died before passing of decree in the suit. Present respondents predecessor-in-interest filed amended plaint in the said Court. Appellants/plaintiffs filed written statement controverting allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed 6 issues including the following material Issues Nos.1 and 2:--

"(1) Whether the plaintiffs have got superior right of pre-emption qua the defendants? O.P.P.

(2) Whether the plaintiffs have fulfilled the requirements of Talbs as required by law of pre-emption? O.P.P.

Learned trial Court after recording the evidence of the parties dismissed the suit of the respondents vide judgment and decree dated 31-7-2001. Respondents/plaintiffs being aggrieved filed appeal in the Court of Additional District Judge, Narowal who accepted the same vide its judgment and decree, dated 26-1-2002. Appellants/defendants being aggrieved filed Civil Revision No.344 of 2002 in the Lahore High Court, Lahore, which was dismissed by the learned High Court vide impugned judgment dated 12-7-2006. Appellants/defendants being aggrieved filed C.P. No.1480/L of 2006 which was fixed before this Court on 25-8-2006 and leave was granted in the following term vide order, dated 25-8-2006: --

"It is contended that all the Courts have misread and misconstrued the evidence in holding that respondent Mst. Farida had superior right of pre-emption in respect of the demised land. It was further submitted that the above finding is absolutely contrary to documentary evidence brought on record, viz. Aks Shajrah, Exh.P.5 (P.63).

From perusal of the record the contention appears to require consideration. Therefore, leave is granted to the petitioner for reappraisal of the evidence. Issue notice to the respondent."

2. Learned counsel for the appellants submits that respondents/plaintiffs had not adduced any evidence to prove their superior right of pre-emption and this aspect of the case was not considered in its true perspective by the First Appellate Court as well as learned High Court. He further maintains that both the Courts below had erred in law to non-suited the appellants/defendants merely on the ground that D.W.1 Muhammad Akram had accepted the claim of the respondents/plaintiffs that their land was adjacent to the land in question. He further maintains that respondents/plaintiffs have to prove their case and could not take benefit of the weakness of the appellants/defendants. He further maintains that documents produced by the respondents through their counsel which were exhibited by the trial Court even could not prove the case of the respondents/defendants. As the document Exh.P.5 Aks-Shajrah could not depict the position that the land in question is adjacent to the land of the respondents. Similarly Exh.P.8 Mutation No.172 does not show that respondents/plaintiffs have no superior right of pre-emption qua the land in question.

3. Learned counsel of the respondents has supported the impugned judgment. He submits that trial Court dismissed the suit of the respondents/plaintiffs mainly on the ground that original plaintiff predecessor-in-interest of respondents namely Atri Begum died before passing of a decree in her favour, hence, right of pre-emption could not devolve upon the plaintiffs/respondents which were reversed by the First Appellate Court with cogent reasons as the original plaintiff riled a suit for pre-emption against the appellants on 28-9-1995 when the Punjab Pre-emption Act, 1991 was in the field and according to section 16 of the said Act, the right of pre-emption stood transferred to the respondents as her legal heirs. He further maintains that appellants/defendants had not filed any cross-objection, therefore, appellants/defendants were estopped to raise question of superior right of respondents before the learned High Court in their revision petition. The learned High Court had dismissed the revision petition with cogent reasons after considering each and every aspect of the case.

4. We have considered the submissions made by learned counsel for the parties and have also perused the record. It is better and appropriate to reproduce basic facts in chronological order, contents of Exh.P.5 and relevant portion of cross-examination of D.W.1 Muhammad Akram to resolve the controversy between the parties:---

(i) Original plaintiff filed suit for pre-emption claiming her right of pre-emption on the basis of being beneficiary of joint amenities and contiguity in para.3 of the plaint (page 50 of paper book).

(ii) Appellants controverted this fact in reply of para.3 in their written statement.

(iii) Specific issue was framed by the trial Court which has already been reproduced hereinabove.

(iv) Respondents did not produce any evidence before the trial Court to prove the contents of para.3 of the plaint.

(v) Respondents had produced documents through their counsel as evident from order, dated 23-7-2001 (page 58 of the paper book) including Aks Shajra Exh.P.5 and Register of record of rights.

(vi) Appellants did not object at the time of producing the document by the respondents through their counsel on the said date.

5. The question for determination by us is what is the effect of the aforesaid portion from the cross-examination of D.W.1 and what is the status and effect of Exh.P.5. and other documents in the shape of Registers of Record of Rights.

6. In case the pleadings of the parties and portion of cross-. examination of D.W.1 be put in a juxtaposition, then D.W.1 had not admitted the claim of the respondents in that portion mentioned hereinabove with regard to the contiguity of the land in question with the land of the respondents. It is a settled law that nobody should get the benefit of the weaknesses of the defendants' plea. See Mian Iqbal Mehmood Banday's case PLD 1995 SC 351 and Faqir Muhammad's case 2003 YLR 1285. Both the Courts below erred in law to decide the case in favour of the respondents in view of aforesaid portion of the cross-examination D.W.1. We have examined the whole evidence of D.W.1, we do not find that D.W.1 had accepted the superior right of respondents. It is also a settled law that party can only succeed according to what was alleged and proved as law laid down by this Court in Amir Shah's case 1998 SCMR 593. It is a settled law that pleadings of the parties are not substantive piece of evidence unless and until the averments made in the pleadings proved from the evidence in Court or admitted by the other party. See Faqir Muhammad's case PLD 2003 SC 594.

6-A. It is an admitted fact that respondents did not adduce any evidence to prove the averments of plaint with regard to their superior right in their oral evidence as well as documentary evidence. However, the respondents have placed on record Exh.P.5 Aks Shajra through their counsel as depicted from order, dated 23-7-2001 without objection from the appellants' counsel. It is a settled law that document once it was brought on record and exhibited then the opposite party could not challenge the admissibility of the document in the Court. Therefore, the Court is duty bound to look into the document produced on record. It is also a settled law that even if no objection was taken by the other side when the document was exhibited the Court has not prevented from adjudicating its nature, where it is valid or not, or where it is fake or not. The burden was on plaintiffs in suit to prove their claim that they had superior right of pre-emption as alleged and they have failed to discharge that burden as evident from Aks Shajra and other documents produced by them do not depict that the land in question was adjacent to the land of the respondents. These documents were misconstrued by the First Appellate Court and the learned High Court. In the case in hand, as mentioned above, the plaintiffs relied upon in support of their claim that they have superior right and under the maxim "secundum allegata et probata" (he who alleges a fact must prove it). The respondents were required to satisfy the Court about the correctness and genuineness of documents relied upon by them. We have examined the said documents with the assistance of the learned counsel for the parties but the plaintiffs have failed to establish their claim through the Aks Shajra in question and other documents. It is pertinent to mention here that Qanun-e-Shahadat Order, 1984 is a code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. The document in question was not proved by the respondents in terms of the said code. It is a settled law that where a document is produced in Court but neither author of the document is produced nor Patwari appeared in support of his note written, it was held that such document was not proved. See Malik Muhammad Akram's case 2000 CLC 759 and Muhammad Jamal's case 1985 CLC 2353.

7. We are perfectly conscious that as ultimate Court in the land, this Court, as a rule, should give due weight and consideration to the opinion of the Courts below while exercising constitutional powers. This Court does not meddle with the findings of fact reached by the First Appellate Court or High Court when it is satisfied that the Courts below are of the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence. This would be notwithstanding that a different view might also be possible. In the instant case, however, it is difficult to avoid the impression that the conclusion reached by the High Court and the First Appellate Court suffer from serious error of law and fact, which unless set right arc likely to result in miscarriage of justice. We have already referred to misreading of the averments of the documents in question and evidence on record. As mentioned above, Aks Shajra, has to prove by the respondents/plaintiffs by producing Patwari, therefore, this document did not explain and prove the fact of contiguity. The controversy between the parties qua contiguity is factual in nature hence it has to be proved through evidence. Similarly record of rights could only prove the factum of ownership of the predecessor-in-interest of the respondents/plaintiffs but these document could not resolve or prove the factual controversy qua contiguity. This factual controversy was not prove by the respondents/plaintiffs in accordance with law.

8. For what has been discussed above, we are of the view that the learned High Court as well as learned First Appellate Court had committed material irregularity by misreading and non-reading of record, therefore, impugned judgment of the High Court as well as the judgment of First Appellate Court are set aside. Consequently, the suit of the respondents is dismissed as they failed to prove their superior right of pre-emption. Appeal is allowed with no order as to costs.

M.H./M-63/SC Appeal allowed.