1990 PLP 1443 (CLC)

The relevant facts for the decision of this appeal are that Messrs Nabi Bakhsh and Ali Bakhsh, the appellants, purchased land measuring 171 kanals 5 marlas situated in Mouza Muhammadpur Hanbi, Tehsil Jampur, District D.G. Khan from Mst. Pathani for a total consideration of Rs. 5,

000. The sale was witnessed by mutation No. 1216 dated 20‑9‑1974. The respondent filed a suit to pre‑empt this sale. He claimed superior right of pre‑emption on account of relationship and co‑ownership. The appellants resisted the suit. The trial Court framed the issues, recorded the evidence and after hearing the arguments proceeded to dismiss the suit vide judgment and decree dated 3‑2‑1977. The respondent filed an appeal in the Court of District Judge, D. G. Khan, who ultimately accepted this appeal vide judgment and decree dated 6‑4‑1978. This way the appellants were constrained to file the present appeal, which was admitted to regular hearing and notice issued to the respondent.

2. I have heard the learned counsel for the parties. The learned counsel for the appellants in support of the appeal raised following arguments:‑‑ Firstly, that the appellants were non‑suited by the lower appellate Court only because that they were recorded as tenants since Kharif 1974 and not earlier to the sale, therefore, could not successfully defend the suit on the basis of tenancy. It is urged that the lower appellate Court failed to appreciate that the appellants were vendees and it is permissible under law for them to improve their status till the decree is passed in favour of the pre‑emptor; and Secondly, that the respondent failed to prove that he was a co‑sharer in the khata and, therefore, had no superior right. It is submitted that the respondent had failed to prove his claim on the basis of relationship.

3. On the other hand, the learned counsel for the respondent has argued that the appellants had purchased 4/8 share in khata No.210, which is equal to 129 kanals 11 marlas in terms of area while whole of khata No. 187 was purchased by them. They were not recorded as tenants for the land in dispute at the time of sale, therefore, they could not defend the suit successfully on the basis of alleged tenancy. It is maintained that the appellants failed to prove that they were tenants of the land. In reply to the other arguments it is submitted that the father of the respondent died on 10‑1‑1973, therefore, the plaintff as heir became the owner in the khata with the death of his father. In this behalf, the learned counsel for the respondent has referred to entry in Death Register, Ex. P.12 and mutation of inheritance, Ex. P.13. It is maintained that once these documents were admitted without objection, it is not permissible for the appellants to raise objection subsequently. 4. 1 have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. Now I proceed to deal with the points raised by the learned counsel for the appellants with reference to the counter‑arguments on behalf of the respondent.

5. The learned counsel for the respondent in the first instance, as already noted, has argued that it was proved that the appellants were in possession of the land as tenants. The suit was filed on 13‑9‑1975 while the appellants were recorded as tenants of the land in dispute in Kharif 1974.

6. The argument of the learned counsel for the respondent that the appellants became tenants after the purchase does not make any sense because once the appellants become owners, they could not have been recorded as A tenants. It is clear from the documents of the respondent‑plaintiff namely Ex.P.3, Ex.P.4 and Ex.P.5 that the appellants were recorded as tenants. Therefore, it does not lie in the mouth of the respondent to challenge the status of the appellants as tenants. The lower appellate Court has also admitted this fact in para 8 of its judgment. The decision in favour of the appellants was reversed without basis. Once the mutation of sale was sanctioned in favour of the appellants, there was no question of recording them as tenants for the first time in the khasra girdawari. The entries in the khasra girdawari have not been rebutted by any evidence. On the other hand, the respondent himself has relied on the same, therefore, he is estopped to find fault with the entries in khasra girdawari. 6‑A. Now coming to the other ground that the respondent‑plaintiff has failed to prove that he was co‑sharer in the khata. The respondent in order to prove this contention has heavily relied on entry in the Death Register i.e. Ex.P.12. According to this extract of the Death Register the father of the plaintiff died on 10‑11‑1973 while entry was made in the register on 9‑1‑1975. There is a presumption of truth as held in the case of Bhag Rhari v. Akbar Khan and others B (1987 C L C 1543) but the presumption is rebuttable. Now in the present case the entries in the Death Register are falsified by mutation of inheritance Ex. P.13. The report was made, as per column 14 of the mutation Ex.P.13, on 26‑10‑1975, wherein it was stated that Mitha father of the respondent had died about three months back. The documents Ex. P.12 and Ex.P.13 of the plaintiff when read together makes one fact absolutely clear that one of the two is bogus and fabricated and both cannot stand together.

7. Now to find out whether the date of death of Mitha as given in Ex.P.12 is correct or as given in Ex.P.13 is correct. I have gone through the remaining evidence. The very fact that the entry of death was recorded on 9‑1‑1975, makes the Ex.P.12 doubtful. The statement of DW1 Mst. Pathani makes the things clear. She is widow of Mitha and according, to her statement her husband was alive at the time of the sale in dispute. The respondent‑plaintiff had failed to cross- examine this witness on this point, therefore, this part of the statement will be deemed to have been accepted. This statement tallies with entries in the mutation of inheritance Ex.P.13. Therefore, I am clear in my mind that Ex.P.12 has been fabricated to boost up the claim as co‑sharer. The learned counsel for the respondent has heavily relied on the case of Bhag Bhari but the same does not support the arguments canvassed by the learned counsel for the respondent. The relevant portion of the judgment reads as under: "I have examined the original register with the assistance of the learned counsel for the parties and I am unable to agree with the appellant's learned counsel. The entry does not give indication of interpolation and spuriousness'. But on the other hand, in the present case, entry in the Death Register is falsified by the other evidence of the respondent himself. It is, therefore, clear that the lower appellate Court has wrongly and illegally upset the findings recorded by the trial Court.

8. The result is that I accept this appeal, set aside the judgment and decree of the lower appellate Court, restore the judgment and decree of the trial Court and dismiss the suit of the respondent with costs throughout. A.A./N‑328 Appeal accepted.