1988 PLP 220 (CLC)

‑‑‑S. 15‑‑Civil Procedure Code (V of 1908), S. 115‑‑Revisional jurisdiction‑‑Court's discretion to accept or reject evidence, held, was not subject to any fetters‑‑Question, whether pre‑emptors were related to vendors being question of fact and concurrent finding reached on question by Courts below, held, was not open to further scrutiny in revisional jurisdiction. (c) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S.15‑‑Superior right of pre‑emption‑‑Pre‑emptors, held, were not obliged to maintain their superiority beyond trial Court's decision. Government of N.‑W.F.P. through Secretary Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 ref. Mirza Anwar Baig for Petitioner. Date of hearing: 16th November, 1987. Second appeal, on behalf of defendant, in the pre‑emption suit is against the judgment and decree dated 11‑10‑1987 of learned District Judge, Chakwal, affirming those of learned Civil Judge dated 15‑7‑1979 decreeing the suit in favour of the plaintiffs‑respondents. 2. 76 Kls 14 Mls of land situated at Mauza Chak Khushi, Tehsil Pind Dadan Khan, belonged to Mehr Khan son of Fateh Khan and Mst. Noor Jehan daughter of Ghulam Hussain. By registered sale deed dated 8‑5‑1976, this piece of land was sold by them to Muhammad Nawaz at the sale price of Rs.25,

000. Plaintiffs claimed pre‑emption in respect of this sale and filed suit for possession in the Court of Civil Judge, Pind Dadan Khan. Pre‑emption was claimed on the grounds of being relations of the vendors; co‑sharers in the Khata as also being owners of the estate. Initially, as the defendant did not submit written statement, suit was decreed against him on 21‑1‑1978. On appeal, this decision was reversed and the suit was remanded for decision it afresh. After remand, defendant submitted his written statement and contested the suit. Contest gave rise to as many as seven issues including that of relief. These issues have been correctly set out in the impugned judgment and to avoid repetition may not be reproduced.

3. On 15‑7‑1979, trial Judge found the plaintiffs and gave them decree for the suit land on payment of Rs.10,000 to be deposited by or before 15‑9‑1979 failing which pre‑emption suit was to stand dismissed with costs. Defendant preferred an appeal to learned District Judge, Jhelum. It was allowed on 26‑5‑1980 and the plaintiffs' suit was dismissed leaving the parties to bear their own costs. In further appeal to this Court (RSA No.793/1980), decision dated 26‑5‑1980 of learned District Judge was set aside and the case was remanded to his Court for recording fresh findings on issue No.6 which related to the superior right of pre‑emption. On reconsideration of evidence, oral as well as documentary, learned District Judge agreed with the trial Court in regard to its findings on the superior right of pre‑emption claimed by the plaintiffs and gave them decree for possession by pre‑emption in respect of the suit land conditional on payment of Rs.25,000 to be paid by or before 11‑11‑1980. In default, it was observed that pre‑emption suit shall be deemed to have been dismissed. Against this judgment, defendant has come up in civil revision to this Court.

4. Mirza Anwar Baig, learned counsel for the petitioner seriously disputed the findings of the Courts below in regard to the plaintiffs' right of pre‑emption. It was submitted that the oral evidence adduced in this behalf did not conform to the requirements of Section 50 of Evidence Act, now section 64 of Qanun‑e‑Shahadat, 1984, and was, therefore, inadmissible. In support of the contention, learned counsel relied on the decision of the Supreme Court in Shah Nawaz and another v. Nawab Khan P L D 1976 S C

767. Relevant observations of the Court are at page 778 of the Report.

5. Pivotal point falling for decision in the civil revision is about the plaintiffs' right of pre‑emption. Trial Court found that relation as set up in the plaint was proved. This finding was affirmed on appeal by learned District Judge. To establish relationship to the vendors, plaintiffs relied on the testimony of Shah Nawaz PW2, Noor Muhammad PW 3, statement of Jehan Khan plaintiff PW 5 and copies of pedigree tables Exts.P.4, P.5. It may be noticed at the outset that the vendee did not claim any right of pre‑emption for him either on the ground of relationship to the vendors or any other qualifications given in Section 15, Punjab Pre‑emption Act. Another material A circumstance to be noticed in this behalf is that while appearing in defence as DW 3, defendant neither expressly nor impliedly denied the relationship set up by the plaintiffs. It was also not denied that Mst. Noor Jehan (vendor) was daughter of Ghulam Hussain whereas Mehr Khan, the other vendor, was parental grandson of Ghulam Hussain. Correctness of pedigree table prepared by the learned District Judge in first part of paragraph 6 of the impugned judgment relating to ancestory of both the vendors was not disputed. What was really disputed was that there was no convincing evidence to establish that Mst. Piran Bano and Mst. Rajan Bano whose descendants pre‑emptors claimed to be were real sisters of aforesaid Ghulam Hussain. Shah Nawaz PW 2 deposed that Mst. Piran Bano and Mst. Rajan Bano were sisters of Ghulam Hussain. Further deposed that Jehan Khan pre‑emptor was son of Mst. Rajan Bano whereas Allah Dad was son of Mst. Piran Bano and Maula Dad, Mir Dad, Muhammad Aslam and Tariq Mahmood were his sons. However, it was also deposed by him that Mst. Noor Jehan vendor was daughter of Jehan Khan. To the similar effect was the statement of Noor Muhammad P.W.3. Except that PW 3 'had stated that Mst. Noor Jehan was daughter of Ghulam Hussain, both the aforesaid PWs were unanimous in stating that Mst. Piran Bano and Mst. Rajan Bano were sisters of Ghulam Hussain and that the plaintiffs were their descendants. Record indicated that statements on oath made by PW 2, PW 3, PW 5 (plaintiff) on question of relationship were not subjected to cross‑examination at all. It further appears that defendant led no evidence, much less confidence inspiring to rebut the evidence produced by the plaintiffs in support of their relationship to the vendors. PW 2, PW 3 belonged to and are residents of Chak Khushi. One is of 92/93 years age and the other was of 73 years of age at the time of his statement in Court. Except for minor discrepancy as to the parentage of Mst. Noor Jehan, plaintiffs' oral evidence was consistent and properly fitted in with the probabilities of the case. Absence of cross‑examination would lend further support to the truthfulness of the plaintiffs' case. In fact, there is no effective rebuttal of what was stated in the plaintiffs' evidence in regard to their relationship to the vendors. PW 2, PW 3 have been treated as independent witnesses and their oral testimony has been accepted and relied upon by the Courts of fact to hold that plaintiffs were related to the vendors. No reason has been shown as to why their testimony should not be accepted, particularly when there is no rebutting material available on the record. Section 50 of the Evidence Act is an exception to the general rule that hearsay evidence is inadmissible and also the opinion based upon such evidence. However, this Section lays down that when the Court has to form an opinion as to the relationship of one person with another it may rely upon the opinion of a particular witness expressed by conduct. Nature of the evidence that is required to be adduced to prove conduct may vary according to the circumstances of each case and it is not necessary that when a witness speaks about relationship of a particular person, he should first give an exhaustive list of circumstances from which his opinion about such relationship could be tested. Ordinarily and as a matter of general proposition of law, it is correct to state that unless proper foundation for admission of such evidence is laid by the party who seeks its admission, his evidence about the relationship may render it open to criticism of being irrelevant and inadmissible. To this statement of law, there can be no dispute and I would loyally respect and obey the pronouncement of the Supreme Court of Pakistan in this behalf. But at the same time, it may be pointed out that the facts of the case under consideration proceeded on slightly different premises. As observed above, both the P.Ws were old residents of Chak Khushi and were speaking about the contemporary events. From their old ages and the fact that they belonged to the same village to which the parties to the controversy also belonged, it can be safely assumed that they were aware of the stated relationship inter se vendors and pre‑emptors and were competent witnesses to depose to the fact in issue. Presumably, it was for this reason that the defendant did not L choose to effectively cross‑examine these witnesses as also the plaintiff Jehan Khan. His conduct in the witnesss‑box also cannot be lightly ignored. He did not deny the relationship set up by the other party. On the cumulative effect of the evidence, Courts of fact came to hold that plaintiffs were related to the vendors and had superior right of pre‑emption. This was really a finding of fact and in the absence of misreading or non‑consideration of material items of evidence, which in this case was not the ground, was binding in civil revision. Courts' discretion to accept or reject evidence is not subject to any fetters. In my view, question whether pre‑emptors were related to E the vendors was a question of fact and concurrent finding reached on this question is not open to further scrutiny in revisional jurisdiction. Except for the point noted above and dealt with, no other point was urged. It may be noted that though in the grounds of revision, petitioner had relied on the decision of Shariat Appellate Bench of Supreme Court in Government of N.W.F.P. through Secretary Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 to contend that ground on which the suit had succeeded was no longer tenable, yet at the hearing this point was abandoned and in my view rightly so, because the pre‑emptors were not obliged to maintain their superiority beyond the trial Court's decision and the judgment 1 of the Shariat Appellate Bench did not operate retrospectively so as to set at naught the decrees validly passed prior to its taking effect.

6. In these circumstances, no interference can be made. In result, civil revision fails and is dismissed summarily. M.Y.H/M‑464/L Petition dismissed.