1998 PLP 1793 (MLD)

MIAN NAZIR AKHTAR, J.

This Regular First Appeal arises out of a suit for possession through pre-emption filed by Muhammad Ibrahim deceased, son of Muhammad Din, predecessor-in-interest of respondents Nos.l to 4 and Muhammad Ibrahim son of Mahtab, predecessor-in-interest of respondents No.5 to 13, on 13-9-1975 in the Court of learned Senior Civil Judge, Bahawalpur Camp, Hasilpur. The disputed land measuring 400 Kanals situated in Chak No. 190/Murad, Tehsil Hasilpur, District Bahawalpur was sold by Naqeshband vendor in favour of the appellants through Mutation No.88 attested on 14-9-1974 in consideration of Rs.2,25,

000. The plaintiffs had claimed pre- emptive right on the ground of being owners in the Patti/estate. The suit was resisted by the appellants who filed their written statement in the Court which gave rise to the following issues:-- ISSUES: (1) Whether the suit has been properly valued for the purposes of court-fee and jurisdiction? If` not, what is the correct valuation? OPP and OP Parties. (2) Whether the court-fee paid by the plaintiff is deficient? If so, what is the correct fee? OPD (2.A) Whether this suit is "Bai-nami" and has been filed by Attaullah son of Ghulam Nabi for his own benefit and he is also bearing its expenses? OPD (3) Whether the suit is time-barred? OPD (4) Whether the description of the suit property has not been correctly given in the plaint? If so, what is correct description and its effect? OPD (5) Whether the plaintiffs have waived their right of pre-emption by their words and conduct? OPD (6) Whether the plaintiffs have superior right of pre-emption as against the defendants qua the suit land'? OPP (7) Whether Rs.2,25,000 were fixed in good faith or actually paid as sale price of the suit land? OPD (8) If issue No.7 is not proved, then what was the market value of the suit land at the time of its sale? OP Parties. (9) Whether the defendants have made any improvements upon the suit land? If so, when and to what compensation they are entitled for a such improvement? OPD (10) Relief.

2. In support of their case, the plaintiffs produced documents Exh. P.1 to P.7 and closed their evidence but reserved the right to make affirmative statements and to produce evidence in rebuttal. Thereafter, the appellants produced D.W.1 Abdul Ghani, D.W.2 Ata Muhammad, D.W.3 Allah Wasaya petition writer, D.W.4 Farzand Ali, D.W.5 Faiz Ahmad, D.W.6 Khushi Muhammad (appellant No.1) and D.W.7 Muhammad Naqashband, vendor. They also produced documents Exhs.D.l to D.13. In rebuttal the plain produced P.W.1 Muhammad Rafique. One of the plaintiffs Muhammad Ibrahim deceased son of Muhammad Din and Ata Ullah, special attorney of the other plaintiff appeared as P.Ws., 2 and 3 respectively.

3. After perusing the oral as well as documentary evidence produce by the parties, the trial Court held the plaintiffs to be owners in the estate and decreed the suit vide judgment and decree dated 17-7-1984.

4. The appellants' learned counsel has challenged findings of the trial Court on issues No.3 and 6 alone. He contends that the suit filed by the plaintiffs on 13-9-1975 was time-barred from the date of delivery of possession to the vendors which took place on 14-3-1974 when Mutation No.88 Exh.P-7 was entered; that the plaintiffs had initially failed to make affirmative statements to discharge onus of issue No.6 and were illegally examined after recording of the appellants,' evidence; that the plaintiffs had claimed to be owners in the Patti and not the village or estate; that they had failed to establish their ownership in any Patti of the village and that they could not be allowed to set up a different plea of being owners in the estate. In support of his contentions he relied on the following judgments:-- (1) Al-haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494). (2) Murid Hussain v. Muhammad Lal (1987 CLC 101). (3) Naseer Ahmad v. District Judge, Multan and 4 others (PLD 1992 Lahore 92). (4) Jhanda through Legal Heir v. Muhammad Younas (PLD 1994 Lahore 100).

5. On the other hand, respondents' learned counsel urged that the suit was filed within the period of one year calculated form 14-9-1974 the date of attestation of the mutation; that the land was in possession of the tenants and no change of possession had been taken place at the spot to constitute notice to the world at large; that the plaintiffs had claimed to be owners in the village/estate and mere use of the word "Patti" did not make any difference because in para.3 of the plaint, they intended to convery that they were owners in the village/estate and the present appellants had no such qualification. In support of his contentions he relied on the judgments in the eases of "Gul Muhammad and others v. Sadar-ud-Din and others" (PLD 1951 Lahore 437) and "Yaqoob Ali v. Ch. Muhammad Sultan" (1988 SCMR 999).

6. We have carefully considered the arguments raised by the learned counsel for the parties and perused the material on the record. The Register Haqdaran Zamin for the year 1970-71 Exh.P-1 shows that Square No.37 was in cultivating possession of Said Ali, Akbar Ali, Sadiq Ali and Hadayat Ullah sons of Lal Din, appellant No.4 while square No.36 was partly in possession of Farzand Ali and partly Maqsood Ahmad son of Rahmat Ali, appellant No.5. After the sale, the same tenants were shown to be in cultivating possession in the Khasra Girdaqwari from Kharif 1974 to Rabi 1975 (Exh.P.3). It may be mentioned that Said Ali, Akbar Ali and Sadiq Ali tenants are sons of Lal Din, appellant No.4 and Maqsood Ahmad is son of Rehmat Ali, appellant No.5. The entries regarding delivery of possession to the appellants made in they daily diary (Exh. D/7) dated 14-3-1974 and Mutation No.88 (Exh. D/8) would merely mean change of possession as an owner. Had some other persons been in cultivating possession as tenants and the vendees had managed to evict them through process of law or obtained possession through mutual consent and started cultivating the disputed land then it would have constituted notice to the world at large for the purposes of counting the period of limitation. The oral evidence produced to show change of possession cannot be accepted in the presence of documentary evidence which shows that the original tenants continued to cultivate the land. Even otherwise, it does not establish the appellants' claim regarding delivery of possession to them. D.W.4 stated that Naqashband alongwith Khushi Muhammad etc. came to him and informed him that he had sold the land; that he may continue to remain a tenant under Khushi Muhammad or obtain land on lease; that 2 Kanals of land was lying vacant which was ploughed by Khushi Muhammad; that he cultivated the wheat crops and then Khushi Muhammad cultivated it; that thereafter he had been working with Khushi Muhammad as a servant on payment of 1/4th share in the produce and that Square No.37 was in possession of Akbar Ali as a tenant who obtained it from Khushi Muhammad on lease. His statement at the most shows that initially only 2 Kanals of land was ploughed by Khushi Muhammad but the wheat crops were cultivated by him. He stated that thereafter the land in his possession was cultivated by Khushi Muhammad but he did not give the exact date when this had happened. Moreover, on his own showing, he continued to work at the land on payment of 1/4th share in the produce. Moreover, Akbar Ali had obtained the. same land on lease and continued to cultivate it. In this view of the matter, the claim made by Faiz Ahmad, D.W.5 and Khushi Muhammad, D.W.6 regarding delivery of possession to them cannot be given much weight. In the case of "Imam Ali Shah v. Muhammad Sharif Khan" (1976 SCMR 362) it was held that the requirement of law for counting the period of limitation is delivery of actual physical possession under the sale. It was further held:-- "Since vendor himself was not in actual physical possession of the land, he was not in a position to deliver its physical possession to the vendee and any agreement with the tenant with regard to future attornment would not satisfy the requirement of law for the relevant purpose: " Therefore, the suit filed within the period of one year from the date of attestation of mutation was held to be within time. In the present case also the period of limitation had to be reckoned from the date of attestation of mutation which took place on 14-9-1974. Therefore, the suit filed on 13-9-1975 was within time.

7. The argument raised by the appellants' learned counsel that the plaintiffs after having set up the claim of being owners in the Patti could not be allowed to lead evidence to prove their ownership in the estate, to the circumstances of the case, carries no weight. The argument as raised before us has not been taken in the memorandum of appeal wherein ground "(f)" having a bearing on issue No.6 reads as under:-- "(f) That some of the appellants are owners in Chak No. 190/Murad and the others are Chak No. 190-A/Murad. Both the Chaks constitute the same estate within the meaning of Pre-emption Act and as such the respondents/pre-emptors had no superior right. It may be stated that out of the appellants Rehmat Ali, Ghulam Rasul, Barkat Ali, Abdul Hameed and Allah Ditta are Patti-Dars of Chak No. 190/Murad. Issue No.6 has been illegally decided and decision on this issue requires to be set aside." Obviously, the appellants attempted to show that they were also owners/Ptatti -Dars in the same Chak and enjoyed equal status with the plaintiffs. They have also used the word "Patti-Dars" to convey the meaning of ownership in the estate/Chak. Being conscious of the implications of ground "(f)", the appellants' learned counsel did not agitate it as it is. Instead, he raised a different point to the effect that after having claimed to be Patt-Dars in the village, the plaintiffs could not be allowed to establish ownership in 'the estate. He laid great emphasis on the point that the respondents could not be permitted to deviate from their pleadings without realizing that his argument received on the appellants whose pleadings are incompatible with the point agitated before us. Anyhow, we are convinced that both the parties had used the word "Patti-Dars" to convey sense of ownership the village/Chak and not in an independent or well-defined Patti of the village. The plaintiffs had stated in para.3 of the plaint:-- In the written statement filed by the appellants, para.3 of the plaint was denied but it was not specifically stated that they were also owners in the Chak/estate. However, in the memo. of appeal for the first time the appellants have laid a claim to be owners in the Chak. In the replication filed by the plaintiffs para.3 of the written statement was controverted and para. 3 of the plaint reiterated. On the pleadings of the parties, the trial Court framed issue No.6 in this form:-- "Whether the plaintiffs have superior right of pre-emption as against the defendants qua the suit land?" The onus of the issue was upon the plaintiffs who initially produced documents Exhs. P/1 to P/7 and reserved the right to make affirmative statements after the defendants' evidence as well as to produce evidence in rebuttal. Exh.P/2 is Register Haqdaran Zamin in respect of Chak No. 190/Murad which shows that both Ibrahim son of Muhammad Din and Ibrahim son of Mahtab were owners of agricultural land in the Chak. They enjoyed superior pre-emptive right against the appellants who did not have any such qualification. While appearing as P. W.2 Muhammad Ibrahim, plaintiff had stated:-- P.W. 3 Ata Ullah had also stated that his father Muhammad Ibrahim was Patti -Dar of the village in question. Their claim was corroborated by Ata Muhammad D.W.2, Lambardar of Chak No.190/Murad who clearly stated in cross examination that the plaintiffs were Patti-Dars qua the disputed land while the defendants were strangers and did not own any land in the village. Thus the plaintiffs' claim of being owners in the village/Chak was proved by documentary as well as oral evidence.

8. The distinction drawn by the appellants' learned counsel in respect of ownership in the estate or ownership in the Patti may be relevant in a case in which the disputed land happens to be located in a well-defined Patti of a village. In such a case, the plaintiff can be required to establish his ownership in the Patti. Moreover, such a question arises only where a chak or a village is divided into sub-divisions. In the case of "Wazir Din v. Hidayat and 2 others" (1973 SCMR 254) it was held that mere mention of "Patti" in revenue record did not by itself prove a village to be divided into sub-divisions. On the same analogy, mere use of the word "Patti" by the plaintiff in the plaint and his statement before the court did not necessarily mean that the Chak/village was divided into Pattis and, therefore, the plaintiffs ought to have established their ownership in a well-defined Patti. In view of the facts established on the record the argument raised by the appellants' learned counsel regarding distinction between the ownership in the Patti and ownership in the estate amounts to much ado about nothing. The judgments cited by the appellants' learned counsel in support of his contention that where a specific plea is raised by a party, it cannot be allowed to deviate from the same need no elaborate discussion as the very foundation of his argument is not established in the present case.

9. True, the plaintiffs' affirmative statement should have been recorded before production of evidence by the defendants/appellants and reservation of the right to make such a statement after the defendants' evidence is against the procedure laid down under the Civil Procedure Code. Such a course has been deprecated or considered to be illegal in the cases of Al-Haj Khalil Ahmad, Murid Hussain, Naseer Ahmad and Jhanda, relied upon by the appellants' learned counsel. However, it is well-settled proposition of law that a party which does not object to or raise an effective protest against the wrong procedure is deemed to have acquiesced in it and cannot at a later stage turn around and object to it, particularly when no prejudice is caused to it. In the case of "Retnakar Gountia and others v. Chamra Satpasty and others" (AIR 1919 Patna 497), it was laid down that a party not raising any objection and thus consenting to a procedure not strictly in accordance with the rules is bound by it. In the case of "Hardeo Singh v. Hira Singh and another (AIR 1937 Oudh 275), it was held that where a party does not raise effective protest against the procedure and acquiesces in illegal procedure then it is bound by it. In the case of "Abdul Wahab and others v. Habib Ali and others" (PLD 1969 Lahore 365), it was held:-- "If a party, by its conduct, obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising the objection as to the procedure, on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them c4 be allowed to challenge the same." It was further held:-- "A party which leads the Court to deviate from the normal procedures, is normally estopped from challenging the order passed by the Court on the consent of such a party." The recent judgment by the Hon'ble Supreme Court in the case of "Allah Yar and others v. Ghulam Jeelani and others" (1996 SCMR 662) clinches the issue. It was held in the said precedent:-- ' "It is not denied by the learned counsel that the respondents while closing the affirmative evidence had specifically reserved the right to examine one of the plaintiffs in rebuttal as also in affirmative after the petitioners closed their evidence and that the petitioners had not taken any objection thereto at that stage. Not only that, they produced their own evidence without any protest and also cross-examined plaintiff No.1 when he appeared as P.W.2 after the close of the petitioners' evidence. This conduct of the petitioners' as rightly observed by the nigh Court, amounted to acquiescence on their part. Petitioners are also not shown to have suffered any prejudice as a result of the procedure complained of as they were unable to point out in the High Court as to what evidence they would have produced in rebuttal if plaintiff No. 1 had appeared as a witness at the stage of affirmative evidence." In the present case, the appellants did not object to the reservation of right by the plaintiffs to make statements in affirmative after recording of the appellants' evidence and willingly participated in the proceedings till the end. This amounted to acquiescence by conduct. Now they cannot be permitted at- this belated stage to turn round and complain that the Court had followed wrong procedure particularly when they are not able to show that any prejudice was caused to them. Therefore, the appellants' objection regarding procedural error committed by the trial Court is repelled.

10. The Court below has rightly recorded findings on issues Nos.3 and 7 in favour of the respondents after proper appraisal of evidence which do not suffer from any legal infirmity.

11. For the foregoing discussion, the findings of the Court below on all the issues are upheld and the appeal is dismissed with costs throughout. H.B.T./K-62/L Appeal dismissed.