1989 PLP 3434 (MLD)

Muhib‑ullah Khan v. Sadiq Khan 1986 SCMR 270 and Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138 rel. Ch. Arshad Mahmood for Appellants. Syed Najam‑ul‑Hassan Kazmi for Respondent. Date of hearing: 10th April, 1989. This is defendants' second appeal against the judgment and decree, dated 3‑5‑1980 passed by the learned lower appellate Court dismissing their appeal from judgment and decree, dated 10‑7‑1975 passed by the learned trial Court through which the suit for possession of land through pre‑emption filed by the respondent has been decreed on the ground of collateral ship.

2. Learned counsel for the appellants challenged the findings of the Courts below on the questions of estoppel/waiver, court‑fee and superior right of pre-emption of the respondent as collateral.

3. Learned counsel for the appellants maintained that the suit was filed on 15‑4‑1972 just four days before the date of expiry of limitation with ridiculously low court‑fee, therefore, the suit should be deemed to have been filed on the date when the deficiency in the court‑fee was made which took after limitation, as such, the suit was liable to be dismissed as barred by time.

4. I am afraid the argument is contrary to the law laid down by the Supreme Court on this point, Reference may be made to judgments reported as Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227, Shahna Khan v. Aulia Khan and others PLD 1984 SC 157 and Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC

289. The learned trial Court on 18‑2‑1975 passed an order for filing statement of net profits on 1‑3‑1975. On 1‑3‑1975 the learned trial Court summoned the Patwari who filed the statement of net profits on 4‑3‑1975. The learned trial Court determined on the basis of this statement of net profits that the court‑fee of an amount of Rs.271‑8 annas was deficient which was directed to be made good before A 5‑4‑1975. The order passed by the learned trial Court on 5‑4‑1975 reads that the deficiency in the court‑fee had been made good. The deficiency having been made good after it was ascertained by the learned trial Court within time fixed by I the Court, therefore, the suit as originally filed shall be deemed to have been; properly filed and as such was rightly held to be within limitation.

4. Learned counsel for the appellants next argued that there was no evidence to establish that the respondent was collateral of the vendor. The respondent himself when appeared as his own witness categorically stated on oath that Waryam had two sons namely Sahloon and Bahu. He further stated that he was descendent of Sahloon while the vendors were the descendents of Bahu. He thus claimed himself to be the collateral of the vendors. On this point his statement was neither challenged nor questioned in the cross‑examination. According to the rule down in judgment reported as Muhib‑ullah Khan v. Sadiq Khan 1986 SCMR 270 and Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138, the said statement of the respondent shall be taken to have been accepted as correct. Realizing this difficulty learned counsel for the appellants tried to over come it by arguing that in the statement, one of the vendors who appeared as appellants' witness stated that he was not related to the respondent which was sufficient rebuttal of the statement of the respondent. I have gone through the statement of the said vendor relied upon by the learned counsel for the appellants and find that the statement is in general terms and he did not specifically state that he was not descendent of Bahu as stated by the respondent or that this Bahu was not descendent of Waryam or that the respondent was not the descendent of Sahloon. The statement of this witness, therefore, is of no help to the case of the appellants.

5. Learned counsel for the appellants lastly argued that it was proved on the record that the respondent was present at the time of bargain of sale and that in fact he got the bargain settled, therefore, he had waived his right to pre‑empt the land and was estopped from filing the suit. The evidence of the appellants on this point and also on the other point have been rightly rejected by both the Courts below on good reasons. It was rightly held by the learned lower appellate Court that the respondent when appeared as his own witness stated that he did not know about the sale having been made and no question was put in cross-examination challenging or questioning the correctness of the same. It shall be deemed to have been taken as correct for the reasons given above. Even otherwise in this case there are two written agreements of sale before the sale deed in question was executed. In all these three documents there is no recital that the respondent was in any way connected in getting the bargain settled. If the appellants were so conscious that the bargain be struck through him so that he may not enforce right of pre‑emption and had he got the bargain settled, his name would have been incorporated or his signatures obtained on these documents by the appellants. The two Courts below have recorded concurrent findings of facts on elaborate and careful appraisal and consideration of evidence produced by both the parties. The impugned judgments and decrees have not been shown to have suffered from any illegality. No evidence has been either misread or kept out of consideration. The findings recorded by the two Courts' below are perfectly valid and in accordance with the material brought on the record. After thoroughly examining the evidence of the parties I also feel myself' in complete agreement with the findings of the two Courts below. The appeal fails which is hereby dismissed with costs. M.Z.S./F‑123/L Appeal dismissed.