1990 PLP 219 (MLD)

Rana Muhammad Sarwar for Respondent. Date of hearing: 3rd October, 1989. This is defendant's regular second appeal against the judgment and decree of the Additional District Judge, Sargodha, whereby he affirmed the decree of the trial Court dated the 14th February, 1974.

2. On 14‑7‑1971, a suit for possession through pre‑emption, of land measuring 2 Kanals 1 Maria and 5 Sarsahis, situate within the Municipal limits of Noorpur Town Tehsil Khushab District Sargodha, which had been purchased by the appellant from its owner Malik Said Rasool, vide a registered deed of sale dated the 15th July, 1970, for a sum of Rs. 4,000 was filed by the respondent against the appellant. The superior right of pre‑emption was claimed on the basis that the respondent, was the son of the vendor. The price on which the sale had taken place was also disputed. This suit was contested by the appellant by raising various pleas inter alia that he being a displaced person from District Mianwali, on account of construction of Chashma Barrage, the sale in his favour was exempt from pre‑emption.

3. The learned trial Court, framed as many as 8 issues arising out of pleadings out of which, issue No.4, which is relevant for the present purposes was as under. (4) Whether the suit property is not pre‑emptible as alleged in preliminary objection No. 1 of the written statement? This issue was treated as a preliminary issue and the parties were asked to lead evidence on it. The appellant‑defendant produced a copy of certificate issued by the Commissioner, Sargodha Division, Sargodha, as Exh.D.1 while no evidence was produced by the respondent/plaintiff. By means of his order dated the 11th January, 1971, this issue was decided in favour of the respondent/plaintiff. The learned Civil Judge, thereafter proceeded with the suit on other issues and decreed it on 14th February, 1974. Aggrieved, the appellant filed an appeal in the District Court, Sargodha, which was heard by Additional District Judge, who dismissed it on 10th April, 1976.

4. As regards the question, as to whether the sale in favour of the appellant was pre‑emptible, the Additional District Judge was of the view that the notification on the basis of which the exemption was claimed was issued on 7th January 1972, while the sale had taken place on 15th July, 1970 before the notification and, therefore, the notification was inapplicable and could not be given retrospective effect. As a consequence of this finding, the appeal of the appellant .was dismissed.

5. The only question which falls for determination in this second appeal is as to whether the sale in favour of the appellant was exempt from pre‑emption. It is common ground between the parties that on 7th January, 1972, a notification under section 8 (2) of the Punjab Pre‑emption Act, 1913, was issued by the Board or Revenue, which provided that no right of pre‑emption shall exist for a period of 3 years inter alia in respect of sale of immovable property, the market value of which does not exceed Rs. 10,000 situate in Mianwali District in favour of a person displaced from Mianwali District by the construction of Chashma Barrage and certified to be so by the Commissioner, Sargodha Division, Sargodha. The sale in the present case had taken place on 15th July, 1970 and the suit was filed on 14th July, 1971. The view which prevailed with the Courts below was that the notification had no retrospective operation and was inapplicable to the sale made and the present suit which had been filed prior to the issuance of the notification. There is no cavil with the proposition that a notification cannot apply retrospectively but there is no gain saying that a pre‑emptor is required to establish his superior right not only at the time of sale and filing of the suit but I also at the time of the passing of the decree in his favour. Consequently, a notification issued during the pendency of the suit taking away the right cannot but result in dismissal of the suit. This proposition is too well established to need any authority but reference in this connection may be made to Mst. Bibi Jan and others v. R.A. Moni and another (PLD 1961 SC 69). Both the Courts below were clearly in error in holding that the notification has no applicability to the pending suits.

6. It was, however, contended by the learned counsel for the respondent that the appellant had failed to prove that he was person displaced on account of construction of Chashma Barrage from Mianwali District. The appellant had in this respect produced in evidence certificate Exh. D.1 issued by the Commissioner, Sargodha Division, Sargodha, to the effect that the appellant was a person displaced from Mianwali District, on account of construction of Chashma Barrage. No evidence whatsoever was produced by the respondent in rebuttal, though he was allowed an opportunity to do so. In the absence of any rebuttal, the certificate EX.D.1 was sufficient to sustain the plea of the appellant that he was a person displaced from Mianwali District on account of construction of Chashma Barrage.

7. Rana Muhammad Sarwar, the learned counsel for the respondent, next contended that certificate Exh.D.l. had not been proved in accordance with law and could not be relied upon. He sought to draw support from the judgment of the Supreme Court in Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others (PLD 1973 SC 160) to canvass that a document not proved in accordance with law cannot be taken into consideration. It is, however, to be noticed that the certificate Ex. D.1 was tendered in evidence and exhibited at the trial, without any objection on the part of the respondent. Even before the lower Appellate Court, no such objection appears to have been raised. It is, therefore, too late in the day for the respondent to raise any objection now. The Supreme Court of Pakistan in Gulzar Hussain v. Abdur Rehman and another (1985 SCMR 301) after considering its earlier decision in Khan Muhammad Yusuf Khan Khattak's case observed:‑ "Thus where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is exhibited and referred to, no such objection can be allowed to be raised in appeal or revision. This Court had occasion to pronounce this legal aspect in several decisions." As regards the case of Khan Muhammad Yusuf Khan Khattak, it was observed at page 309 of the report that :‑ "So far as the rule of law with regard to objection as to the formality of proof of a document is concerned, therefore, the majority did not dissent from the earlier view postulated. The reading of this judgment indicates that the decision of the Court turned on the peculiar facts of this case, as the document involved was a private document in which admissions made by a party on a matter in issue were being relied upon, without confronting the party concerned with the document. We have, therefore, come to the conclusion that the consistent view of this Court is as explained in the cases referred above:" There is thus no force in the objection of the learned counsel of the appellant. The other case 'relied upon by him viz. Amin Abdullah v. Commissioner, Sargodha Division, Sargodha, (1981 CLC 680) has also no applicability. In the precedent case, the respondent had challenged the correctness of the certificate before the Revenue Authorities. In the present case, the correctness of the certificate was not disputed at any stage of the trial by the respondent nor any evidence was led by them in rebuttal.

8. In view of what has been said above, this appeal is accepted, judgments and decrees of the Courts below are set aside and the suit of the respondent is dismissed, Leaving the parties to bear their own costs. A.A./M‑1623/L. Appeal accepted.