SARFRAZ and 7 others vs MUZAFFAR KHAN
This matter concerns a petition for leave to appeal arising from a pre-emption suit regarding the sale of land via a registered deed dated 14-1-1978. The respondent, claiming to be a collateral of the vendor, successfully pre-empted the sale in the trial court, which found the petitioners' evidence regarding pedigree tables insufficient. The appellate court maintained the decree, invoking the principle of sinker, noting that while the petitioners were recorded tenants, the joint nature of the sale precluded them from asserting a superior right of pre-emption. The High Court dismissed the subsequent revision petition, primarily holding that the Khasra Girdawaris supporting the petitioners' tenancy claims were not properly exhibited and thus inadmissible. The core legal question before the Supreme Court is whether the High Court adopted an inconsistent approach by relying on unexhibited documents produced by the respondent while rejecting similar unexhibited evidence favorable to the petitioners, and whether the burden of proof regarding the superior right of pre-emption was correctly applied. The Court granted leave to appeal to examine these contentions regarding evidentiary standards and the burden of proof in pre-emption litigation.
- Whether an appellate court can rely on unexhibited documents while rejecting similar unexhibited documents produced by the opposing party?
- Does the principle of sinker apply to a joint sale where individual purchasers are recorded tenants of the suit land?
- Upon whom does the burden of proof lie to establish a superior right of pre-emption in a suit involving competing claims?
ORDER
1. ' FAZAL ILAHI KHAN, J. ---Sale of land through registered deed dated 14-1-1978 in favour of the petitioners was pre-empted by the respondent on the plea that he was a collateral of the vendor.
2. Petitioners in their written statement specially did not plead that they were in cultivating possession of the suit land as tenants before the sale made in their favour but simply denied the plaintiff's superior right of pre-emption, in respect of the suit land. The learned trial Court decreed the plaintiff's suit with the observation that the pedigree-table placed on file were discrepant and it was for the petitioners to have clarified it. The learned Additional District Judge on hearing the appeal against the judgment and decree feeling his inability to give a correct finding on the issue in the light of the documents placed on file and exhibited as evidence in the case, took judicial notice of other documents placed on file, but not exhibited, maintained the finding of the trial Court and dismissed the petitioners' appeal. The learned appellate Court, however, held that the petitioners have been recorded tenants in cultivating possession of various Khasra numbers in their individual capacity but that was not helpful to them as it being a joint sale in their favour the principle of sinker was attracted to their case and they could not be given the benefit of their having the first right of pre-emption as against the plaintiff/pre-emptor. The learned High Court, however, dismissed their revision petition on another ground that the copies of Khasra Girdawaris, in which the petitioners are recorded as tenants in cultivating possession of the suit land have not been placed on file by the order of the Court and that the same having not been exhibited could not be relied upon in support of their plea.
3. It was contended by the learned counsel that approach of the learned High Court is inconsistent as the documents placed on the file by the plaintiff/respondent, though unexhibited, were relied while those available on the file in support of the petitioners' case were rejected, though it was for the plaintiff/respondent to have provide his superior right of pre-emption in preference to the petitioners' through unambiguous evidence. Leave is granted to consider the contention of the learned counsel for the petitioners.