1988 PLP 41 (CLC)

On 2‑1‑1978, the respondent Muhammad Sarwar filed a suit for possession through pre‑emption with regard to 17 Kanals and 14 Marlas of agricultural land situated in Chak No. 10/G.D., Tehsil Okara sold by Sardar Khan in favour of the appellant Umar Din by means of a registered sale‑deed, dated 25‑2‑1977 for an ostensible price of Rs.30,

000. He based his superior right of pre‑emption on the plea of his being the heir as a son of the vendor Sardar Khan and alleged that Rs.10,620 only was the actual price paid by the vendee. The suit was contested by the vendee‑defendant who in addition to denying that the plaintiff may be a son of the vendor, also took up the plea that he had actively participated in the settlement of the bargain on account of physical disabilities of the vendor and reiterated to have actually spent Rs.30,000 to get the land. The suit was originally set down to be tried on the issues as under:‑ (1) Whether the suit is collusive? O.P.D. (2) Whether the plaintiff himself got the bargain struck off (sic for?) the disputed land with the defendant? If so, to what effect? O.P.D. (3) Whether the pl4intiff has superior right of pre‑emption qua the defendant? O.P.P. (4) Whether the sale. price of Rs.30,000 was actually paid or fixed in good faith as price of the suit land? O.P.D. (5) If above issue is not proved in affirmative, then what is the market‑value of the suit land? O.P. Parties. (6) Relief.

2. Deficient court‑fee had been paid by the plaintiff on his suit filed on 2‑1‑1978 to pre‑empt the sale registered on 25‑2‑1977 and on the basis of an objection on the point taken by the vendee‑defendant, the then learned trial .Judge had required the plaintiff to pay the deficient court‑fee amounting to Rs.672.50 before 19‑2‑1978 but so was not done by the plaintiff who instead applied for grant of extension of time which was allowed by the trial Court in exercise of its powers under sections 14i and 149 of the C.P.C. and the plaintiff paid up the deficient court‑fee within this extended time when the one year's limitation for filing the suit had actually run‑out. In the circumstances, vendee‑defendant thought that the suit against him had become barred by time and issue No. 5‑A was consequently raised as under:‑ "5‑A. Whether the suit is barred by time? O.P.D."

3. Evidence of their choice was led by the parties on the issues set‑down to be tried. Sardar Khan vendor appeared as P.W.1 and deposed that the plaintiff Muhammad Sarwar is his son. Muhammad Khan, a brother of the vendor, was examined as P.W. 2 and the plaintiff himself also appeared as P.W.3 to support this relationship which, however, was not satisfactorily refuted by the vendee or his witness and much less did they attribute his paternity to anyone else. Another important question which naturally arose in these circumstances was that if the plaintiff was not related to the vendor as his son then why may the defendnt have supposedly associated him for having his bargain settled with the vendor and which right of his may the vendee have desired to be defeated on the principle of estoppel? Plaintiff's relationship with the vendor having thus been irrefutably proved, there was not even an assertion made by the vendee or his witness in the course of their evidence that the plaintiff may have taken any part in negotiating the sale, so much so that his specific denial on the point was not challenged by means of cross‑examination and the vendee's counsel wanted to make assumptions on the basis of mere conjectures which were, however, not accepted by the learned trial Judge as a substitute of positive proof and he accordingly answered all the relevant issues in favour of the plaintiff with the finding that the sale‑price of Rs.30,000 had been proved to have in fact been paid. Trial Court decreed the plaintiff's suit accordingly by its judgment, dated 10‑4‑1983.

4. In an appeal there against filed by the vendee‑defendant, the trial Court's findings with regard only to issues Nos. 2 and 5‑A were challenged before a learned Additional District Judge who reconsidered the evidence and affirmed the findings of the trial Court by upholding its decree to dismiss the appeal by his judgment, dated 6‑1‑1986. He has now come up to this Court in this second appeal to challenge the decrees of concurrence passed by the two Courts below with regard to questions of pure fact, on the basis of record.

5. At the initial stage, counsel for the appellant had desired to contest the findings adverse to the vendee recorded concurrently by the two Courts below under issues Nos. 1 and

2. Trial Court's record was sent for to appreciate his contentions. The same has been received and perused. Whereas no evidence was led at all by the vendee with regard to issue No. 2, there is no convincing evidence available on the file to doubt the relationship of the vendor and the plaintiff as a father and son. The decrees passed by the two Courts below are clearly unexceptionable on the record.

6. Then, in the end, plea about limitation for the suit was raised by the counsel in complete oblivision of the provision contained in section 149 of the C . P . C . to the effect that the payment of deficient court‑fee within the time allowed by the Court would be as effective as it had been paid in the first instance. Where does then arise the question of limitation about the suit? Muhammad Siddique Khan's case reported as P L D 1984 SC 289 also completely negates the plea of the vendee‑appellant.

7. This case actually gets concluded with the concurrent findings of fact reached by the two Courts below which are justified on the record and there does not arise any question within the scope of section 100 of the P . C . for decision. Hence, dismissed in limine. A . A . / U‑14 / L Appeal dismissed.