1999 PLP 1608 (CLC)

2. The judgment of the learned trial Court was challenged in appeal by the respondents which appeal was, however, accepted by a learned Additional District Judge, Muzaffargarh vide his judgment, dated 14‑12‑1968. This second appeal has been filed to challenge the aforesaid appellate judgment.

3. It is contended by the learned counsel for the appellant that the only ground which weighed with the learned appellate Court in upsetting the findings of the learned trial Court, was that the vendor and the vendees were Shia bar faith. It is contended that no such case was pleaded in the written statement nor any issue was framed thereon and the evidence produced by the respondents was liable to be ignored which was beyond the pleadings of the respondents. It is further, contended that the learned appellate Court has misread the evidence on record in particular statement of P.W.4 and P.W.5, who stated in clear terms that the vendor was not Shia by faith but a Sunni and that D.W.2, father of the vendees, had also stated that he was Sunni by faith. It is contended that even the evidence produced by the defendants in support of their assertion that they were Shia by faith is inconsistent and the findings recorded by the learned appellate Court are based on misreading of the evidence on record. It is further contended that the judgment of the learned trial Court was based on correct appreciation of the evidence on record and the learned appellate Court erred in law in reversing the findings and the judgment of the learned trial Court.

4. The learned counsel for the respondents, on the other hand, supports the judgment of the learned appellate Court and contends that there was no need to plead in the written statement as to whether the vendees/defendants were Shia or Sunni. It is further, contended that when the vendor stated that he was Shia by faith, the same should be accepted as a true statement.

5. In paragraph No.5 of the plaint, it was the case of the appellant/plaintiff that he was collateral of the vendor and also Khewat Dar of Khata No.6 whereas, the vendees/defendants did not possess any such qualification. This assertion of the plaintiff/appellant was simply denied and nothing was stated by the vendees/defendants as to their faith that they were Shia and were better placed than the plaintiff. Since there was no such controversy brought forth in the pleadings, no issue was framed thereon. The introduction of a new case through the evidence, later on, could not be permitted in view of the law laid down in the following judgments:‑‑

(i) Messrs Choudhary Brothers Ltd., Sialkot v, The Jaranwala Central Cooperative Bank Ltd., Jaranwala and others 1968 SCMR 804, it was held that facts not stated or raised in the pleadings and issues not framed would not entitle a party to lead evidence on the same. (ii) In Muhammad Shaft v. Rehmat Ali 1985 CLC 432, it was held that no evidence produced by a party could be considered unless a fact was pleaded specifically in the written statement. (iii) In Anayat Ali Shah v. Anwar Hussain and 2 others 1995 MLD 1.714, it was held that a fact not stated in the pleadings cannot be proved in evidence and any evidence led about the same would be liable to be ignored. The defendants/vendees had not even claimed any relationship with the vendor in the written statement nor that they were Khewat Dar, therefore, no such evidence could be allowed to be produced on a plea which was not taken in the pleadings.

6. It was held in Mst. Sahib Bibi v. Muhammad and others PLD 1961 (W.P.) Lah. 1036 that:‑‑

"The majority of Muslims of Pakistan being Sunnis, the presumption is that the parties to a suit or a proceeding are Sunnis unless it be shown I that they belong to the Shia sect." Similar presumption was noted in Mst. Sardar Bibi v. Muhammad Bakhsh and I others PLD 1954 Lah. 480 and Pathana v. Mst. Vhasai and another PLD 1965 SC

134. Thus, unless proved to the contrary by evidence the presumption is as to the Sunni faith in Pakistan.

7. To prove that the appellant/plaintiff was collateral of the vendor a pedigree table Exh.P.2 was brought on record showing Fateh Muhammad as their common ancestor. The appellant himself appeared as P.W.3 and stated his relationship with the vendor. He was not cross‑examined by the defendants/respondents on these points and the only suggestion given was as to certain improvements made by them in the land and as to the market price of the land.

8. The defendants/vendees, however, produced the vendor, Elahi Bakhsh, who stated that he was Shia by faith and that the vendees were his sister's sons. However, in the cross‑examination, he admitted that except himself and his father there was no Shia in the family. Muhammad Ramzan, father and Guardian at litem of the respondents/ vendees appeared as a witness and stated that he was a Sunni Muslim. The learned trial Court did not believe the version of Elahi Bakhsh, vendor, as he had expressed complete ignorance about the Shia Fiqa and that he had admitted enmity with the appellant/plaintiff. P.W.4 Faiz Muhammad, who is cousin and brother‑in‑law of Elahi Bakhsh vendor, stated that Elahi Bakhsh and his father were Sunni and had no connection with Shia Fiqa. He was not cross‑examined at all by the vendee/defendants. Manzoor Ahmed, who is Imam Masjid, and Mudarrass of the village appeared as P.W.5 and stated that Elahi Bakhsh vendor was a Sunni Muslim.

9. The learned trial Court in view of the state of the evidence brought on 'he record, believed the testimony of P.Ws.4 and P.W.5 to be the persons, who could well state on the matter of faith of vendor Elahi Bakhsh and the finding was recorded that "the vendor was a Sunni and not a Shia". Accordingly, the appellant was found to be the legal heir of the vendor to the exclusion of the vendees having a superior right as against them. The learned appellate Court has, however, disbelieved the evidence of Faiz Muhammad, P.W.4, for the reason that he was not a disinterested witness. He also disbelieved Manzoor Ahmed, P.W.5, for the reason that nephew of the plaintiffs/appellants was Lambardar of the village and P.W.5 used to accept gift "Wazifa" from the said nephew of the plaintiffs. He further observed that the plaintiff himself had not appeared in the witness‑box.

10. I do not agree with the approach of the learned appellate Court that simply this much that P.W.4 was a relation of the appellant/plaintiff and P.W.5 used to accept "Wazifa" from the nephew .of the appellant/plaintiff would make their testimony doubtful. Living in a village and the nature of the faith which a person was professing was a matter which could be better deposed by people who were well‑informed and connected with the person concerned It is undisputed that the vendor, the vendee and the plaintiff/pre‑emptor belong to one family, therefore, the simple reason that a witness was related to the plaintiff was not a good ground for disbelieving him. Similarly, P.W.5 who was Imam Masjid of the village, was the better informed person who could depose as to the faith of a particular person. The learned appellate Court has further ignored the fact that the appellant/plaintiff, had appeared as a witness as P.W.3 but no question was put to him nor any suggestion was given that the vendor Elahi Bakhsh was Shia by, faith. In fact, none of the witnesses produced by the plaintiff/appellant i.e. P.W.1 Ghaus Bakhsh and P.W.2 Karim Bakhsh were put any question or suggestion of this nature. This was for the first time stated by Elahi Bakhsh vendor when he appeared that he was a Shia Muslim. The observation of the learned appellate Court that the appellant /plaintiff did not bother to come in to witness‑box to rebut the Shia character of the vendor was uncalled for. Since this was never the case of the respondents /vendees in the written statement nor there was any issue on the point nor any of the witnesses produced by the appellant/plaintiff had been given any such suggestion or put question in the cross‑examination, there was no occasion for the appellant/plaintiff to make statement about the faith of the vendor. The learned ' appellate Court also ignored the statement of Muhammad Ramzan, father of the vendees/defendants who stated that he was a Sunni Muslim. The reasonings of the learned appellate Court, do not find support from the evidence on record and, thus, cannot be sustained.

11. In order to prove the superior right of pre‑emption the appellant/plaintiff produced copy of Jamabandi Exh.P.4 which showed that the appellant/plaintiff was a co‑sharer in the said Khata, whereas nothing was brought on record by the vendees/defendants. This document has gone unrebutted. It was thus, rightly found that the assertion of the appellant/plaintiff as Khatadar in the suit was proved.

12. Considering the facts, circumstances' and the evidence brought on record in its totality, does not prove that the vendor or the vendees were Shia by faith. I am inclined to agree with the findings recorded by the learned trial Court on Issue No.3 and uphold the same whereas the findings recorded by the learned appellate Court on this issue are found to be result of misreading of the evidence on record and are reversed. The appellant/plaintiff had produced convincing evidence and proved his superior right of pre‑emption.

13. The learned counsel for the appellant, with regard to Issues Nos.4 and 5 as to the actual price of the suit land has candidly conceded that he does not dispute the said amount and states that the appellant/plaintiff was ready to pay Rs.12,000 as price of the land.

14. In view of the above, this appeal is accepted. The judgment of the learned appellate Court is set aside and that of the learned trial Court restored with the variation as to price of the land which is Rs.12,

000. The balance price shall be paid by the appellant within a period of one month, failing which, the suit of the appellant shall stand dismissed. No order as to costs. Q.M.H./M.A.K./K‑90/L??????????????????????????????????????????????????????? ??????????????????????Appeal accepted.