1990 PLP 1819 (CLC)

‑‑‑‑Arts. 49 & 129, illustration (c)‑‑‑West Pakistan Land Revenue Rules, 1968, R.72‑‑‑Khatauni‑‑‑Evidenciary value of‑‑‑A holding slip/Khatauni, is merely in nature of a preliminary document which does not form part of Record of Rights or periodical records and entries in it do not attract presumption of truth‑‑ Though presumption of truth may not attract to Khatauni, but same having been prepared by public servant in discharge of his official duty, entries in it are not altogether valueless and such entries supported by unrebutted oral statement of witness, can be accepted as evidence of ownership of agricultural land in revenue estate. (e) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XLI, R.27‑‑‑Additional evidence‑‑‑Provisions of O.XL1, R.27, C.P.C. are not intended to allow a litigant to patch up weak parts of his case and fill up omissions in Court of appeal and this is more so in pre‑emption matter. Parsotim Thakur and others v. Lai Mohar Thakur and others A I R 1931 PC 143; Advisor,Town Planning v. Gulzar Muhammad P L D 1969 SC 60; Allah Ditta v. Ghulam Rasul P L D 1975 Lah. 138; Fazal Hussain v. Mst. Ilahi Jan and 2 others P L D 1975 Lah. 280; Bashir Ahmed v. Ahmadul Haq Siddiqui 1984 C L C 1105; Muhammad Saeed and another v. Muhammad Bashir and 7 others 1984 C L C 3284 and Bashir Ahmad v. Ahmad‑ul‑Haq Sid

000. On 25‑4‑1967, Mohammad Ismail as an owner of the estate sued to pre‑empt the above sale. In course of trial, Mohammad Ismail died and was substituted by his successors who then pursued the suit and are appellants before this Court. Vendees‑defendants resisted the suit and controverted material averments in the plaint including assertion of superior right of pre‑emption. Divergent pleadings gave rise to as many as eleven issues including that of relief. Material issue surviving for decision in second appeal is issue No.7 which related to the claim of superior right of pre‑emption by the plaintiffs. Dealing with this issue, the trial Court took the view that since the holding slip/khatauni is a map of the estate, it carried presumption of truth and as land wherever situate is liable to payment of land revenue, therefore, the omission about land revenue in the khatauni Ext. P2 was of no material consequence. Proceeding on the above premises, the trial Court found that Ext.P2 indicated that Mohammad Ismail was owner of 167 kanals of land in the village which was liable to be assessed to the land revenue under section 56 of the Punjab Land Revenue Act, 1967. Therefore, he, and, on his death, his legal representatives were owners of the estate. In appeal, learned Additional District Judge took a contrary view and found that Ext. P2‑holding slip/khatauni was neither a map of the estate nor was part of Record of Rights or Annual Records attracting presumption of truth to entries in it. He further found that the land shown in Ext. P2 was not assessed to land revenue. Therefore, neither the original plaintiff nor his successors could be classed as owners of the estate. It may be observed that at the final hearing of the first appeal, an application for production of copy of inheritance‑‑‑Mutation No.774 dated 26‑5‑1970 attested upon the demise of original plaintiff in favour of his successors as additional evidence was filed by the appellants but it did not succeed and was dismissed by the lower appellate Court by a separate order passed on 28‑6‑1988. Its correctness was also canvassed in course of hearing of the appeal by the appellants. It was submitted that learned Judge below was erroneous in not admitting the inheritance mutation as additional evidence which was necessary for proper and satisfactory decision of the appeal before him. Seen from the above, solitary material point surviving for determination in the second appeal is about plaintiffs' superior right of pre‑emption that is whether in terms of section 15 of Punjab Pre‑emption Act, they were owners of the estate. Term `owner of the estate' connotes ownership of agricultural land assessed to land revenue. Therefore, to be an owner of the estate, one must own agricultural land in the revenue estate and that it must be assessed to land revenue. Both the elements arc essential and must co‑exist. Reference with advantage can be made to the cases of Salchon Muhammad and another v. Shera and others 1977 S C M R 297, Murid Hussain v. Muhammad Lai 1987 CL C 101: Abdul Hamid and 2 others v. Mehrban Ali 1989 C L C 195, Abdul Rashid and others v. Khurshid Ahmad and others P L D 1989 S C 373 (2) and an unreported decision in Wahced Bakhsh v. Saleem Akhtar and others‑‑‑Civil Revision 599 D/1987 decided on 27‑3‑1988 by Munir A. Sheikh, J., at Multan Bench. Correctness of the above statement is not in dispute between the parties. Therefore, it is to be seen from the records whether the original plaintiff was owner of the estate as understood in the law of pre‑emption. It is not denied that pre‑emption is a right to acquire property in preference to less favoured by it. Its quintessence is clear preference and unless it is established beyond doubt substitution cannot take place. Therefore, in order to succeed, plaintiff is obliged B to show his superiorly at the time of the sale and maintain it till the decision by the trial Court. Onus of proof rests upon him lie can succeed on the strength of his own case and not upon any alleged weakness existing in the case of his adversary. Only evidence to establish that original plaintiff was owner of the estate at the time of sale sought to be pre‑empted was an oral statement of Ghulam Hussain PW‑4 and a copy of holding slip‑Khatauni, MaU7.a Marian which indicated that land noted in it was owned by Ismail son of Khair‑ud‑Din. As for oral statement of PW‑4, he merely stated that his father owned land in the village. He did not state the the land owned was also assessed to land revenue. Mere self -serving statement of a plaintiff in absence of more reliable material as to the land being assessed to land revenue was insufficient to hold that the plaintiff/plaintiffs were owners of the estate that is, that the land owned was assessed to land revenue which gave them the status of owner/owners of the estate. So far as holding slip khatauni‑ExLP2 is concerned, it merely records ownership of land in the name of Ismail son of Khair‑ud‑Din the original plaintiff in the suit. It did not show that the land in his ownership was assessed to land revenue. Previous jamabandi showing plaintiffs' ownership of land assessed to land revenue in the revenue estate was not filed. It was a material document which could have assisted the point at issue. Its omission adversely reacts on the plaintiffs' case holding slip .....khatauni which Ext.P2 is, merely in the nature of a preliminary document which does not form part of Record of Rights or periodical records. Entries in it do not attract presumption. Its purpose, mode of preparation and form are available in paragraph 256 and Appendix VII of the Settlement Manual by Sir James M. Douic, Chapter 7.39‑A of the Land Records Manual and Form XXXVIII (Appendix A) prescribed under Rule 72 of West Pakistan Land Revenue Rules, 1968. Though presumption of truth as such may not attract to Ext.P2, yet entries in it are not altogether valueless. It was prepared by a public servant in discharge of his official duty. No claim to forgery in regard to it was ever laid and no such presumption can be raised either, because all civilized laws presume in favour of validity. Therefore, in view of Article 49 read with illustration (e) of Article 129 of Qanun‑e‑Shahadal 1984, entries in Ext. P2 F supported by unrebutted statement of P.W.4 can be accepted as evidence of ownership of agricultural land in the revenue estate by the original plaintiff Muhammad Ismail who having died in course of trial, his rights in the land devolved upon his successors. To this extent, there is not much doubt that the original plaintiff, and upon his death, his successors owned agricultural land in the revenue estate of Marian. Real difficulty comes in whether the land waft assessed to land revenue. Admittedly, there is no evidence to indicate that the land owned by the plaintiff or his successors was assessed to land revenue. Ext.P2 gave no indication about it. In fact, there is no column in Ext. P2 to show assessment of land revenue on the land recorded in it. It was for this reason that the appellants who were respondents before the lower appellate. Court ruled an application under Order XLI rule 27 Civil Procedure Code for taking additional evidence in the shape of inheritance Mutation 774 dated 26‑5‑1970 sanctioned after the death of original plaintiff in their favour. Application was vehemently opposed by the opposite side and was by a detailed order dismissed by the learned judge below. Order refusing to admit additional evidence was questioned at the hearing. It was submitted that the certified copy of inheritance mutation was a public document. There was no dispute about its authenticity and to show that land owned by the plaintiffs was assessed to land revenue, the aforenoticed document was necessary to be looked into. As I have already said, upon the exiting records, there is not a shred of evidence to prove that land owned by the plaintiffs or their predecessor was assessed to land revenue and unless additional evidence is taken on file, they cannot succeed. In this view, the next question that arises for consideration would be whether learned Judge below was wrong in excluding the proposed additional evidence. Given careful consideration to the prayer for additional evidence in appeal to support pre‑emption which otherwise, upon the existing records, is bound to fail, I do not think that it would be a proper exercise of discretion to permit the failing appellants to fill in existing gaps in their evidence left at the trial by them. It is well‑settled statement of law that provisions in rule 27 of Order I XLI, Civil Procedure Code are not intended to allow a litigant to patch up the' weak parts of his case and fill up omissions in the. Court of appeal. This is more so in a pre‑emption matter. A good deal of case‑law decided in course of a large expanse of time illustrates and supports the above statement. Cases in Parsotim Thakur and others v. Lal Mohar Thakur and others A I R 1931 Privy Council 143, Jawala Singh and others v. Jagdish Singh and others A I R 1941 Lahore 144, The Secretary to the Government of West Pakistan, Communication & Works Department and the Advisor, Town Planning v. Guliar Muhammad P L D 1969 SC 60, Allah Ditta v. Ghulam Rasul P L D 1975 Lahore 138, Fazal Hussain v. Mst. Ilahi Jan and 2 others P L D 1975 Lahore 280, Bashir Ahmed v. Ahmadul Haq Siddiqui 1984 C L C 1105, Muhamma Saeed and another v. Muhammad Bashir and 7 others‑‑‑1984 C L C 3284 and Bashir Ahmad v. Ahmad‑ul‑Haq Siddiqui‑‑‑1985 S C ‑M R 1232 cited at the Bar to oppose the request for additional evidence are in point. Furthermore, proposed additional evidence was not a new discovery. It was a mutation sanctioned upon the death of the original plaintiff in favour of the appellants themselves. Its copy was filed and exhibited in the connected pre‑emption suit. There was no sound reason for the appellants not to file it in evidence in the trial Court. Additionally, mere entry showing assessment of land revenue on the land recorded in the inheritance mutation sanctioned in course of trial of the pre‑emption suit, in absence of sufficient support from any other quarter, could not be accepted as of forceful probative value to hold that the land owned by the plaintiffs was really assessed to land revenue. Looked at from proper perspectives, proposed additional evidence was merely intended to fill in gaps in the evidence left at the trial by sheer are lessness of the appellants. It may prove to be the need of the appellants but is not the requirement of the Court for satisfactory decision of the appeal. No fault could be found with the exercise of discretion by the lower appellate Court in refusing to admit additional evidence at the appeal stage. His view on reception of additional evidence in appeal was unexceptionable. As said elsewhere, without taking additional evidence to prove assessment of land revenue on the land owned by the appellants, they cannot succeed and as for additional evidence, I wholeheartedly agree with the learned Judge below‑that it could not be taken. Having regard to the aforesaid, second appeal has no merits. It is dismissed with costs. H.B.T./G‑349/L Appeal dismissed.