P L D 2004 Lahore 300 (PLP)

‑‑‑‑O.XLI, R.33‑‑‑Power of Appellate Court‑‑‑Scope‑‑‑Party to suit could not be made to suffer by mistake of Court‑‑‑Where Court did not correctly appreciate evidence on record and came to a wrong conclusion, then duty of Appellate Court was to correct conclusion on basis of evidence on record‑‑‑Duty of Appellate Court was to correct error committed by Trial Court and pass judgment, which the Trial Court should have passed. Hafiz Khalil Ahmed for Petitioner. Sarfraz Hussain for Respondents. Date of hearing: 1st December, 2003. Muhammad Bakhsh and one another plaintiffs/respondents herein had instituted a suit for possession through pre‑emption over a sale of land measuring 23 Kanals 15, Marlas situated in Mauza Uttra Southern, Tehsil and District Khushab transferred through Mutation No.4995 attested on 17‑8‑1998 for a consideration of Rs.80,000 in favour of Atta Muhammad vendee/defendant by Fateh Muhammad vendor claiming his superior right of pre‑emption being co‑sharer/co- owner of adjacent immovable property and having common easement rights. The suit was contested by defendant‑vendee/petitioner herein, who filed his written statement denying the averments of the plaint.

2. From the factual controversies appearing on the pleadings of the parties, learned trial Court, vide its judgment and decree dated 23‑1‑2003 dismissed the suit. Feeling aggrieved thereby the plaintiffs/respondents preferred an appeal which came up for hearing before the District Judge, Khushab, who vide his judgment and decree dated 18‑6‑2003 accepted the appeal, set aside the findings of the trial Court and decreed the suit, subject to payment of Rs.1,19,000 along with incidental charges of Rs.13,209 with costs. The plaintiffs/respondents were directed to deposit the decretal amount less than Zari‑I‑Soim (ﻡﺋﻭﺴﺭﺯ) already deposited within one month of the date of judgment.

3. Learned counsel for the petitioner has contended that the suit land was situated in Khata Nos.1564, 1565, 1568 and 1570 and both the plaintiffs/respondents were not co‑sharers in the Khatas in dispute. It has been further contended that both the Courts below had committed gross illegality by non‑reading and misreading of documentary evidence. Also contended that plaintiffs have failed to establish their superior right of pre‑emption by oral as well as documentary evidence.

4. On the other hand, learned counsel for plaintiffs/respondents has vehemently opposed the argument of learned counsel for the petitioner contending that the plaintiffs have proved their superior right of pre emption by producing documentary evidence and it is established on the record that the plaintiffs are co‑shares in the Khatas in dispute and also entitled for decree of pre‑emption. Further contended that petitioner has not challenged the finding of the Courts below on issue of superior right of pre‑emption.

5. I have heard the arguments of the learned counsel for the parties and perused the record.

6. The onus to prove Issue No.2 i.e. whether the plaintiffs have got superior rights of pre‑emption qua the vendee/defendant was on the plaintiffs and in the evidence the plaintiffs have produced copies of Record of Rights pertaining to Khata Nos. 1564, 1565, 1568 and 1570. From minute scrutiny of these documents (copies of Record of Rights) it has transpired that name of Muhammad Bakhsh plaintiff is entered as co‑sharer in column of ownership in Khatas Nos. 1564 and 1565 and the name of Mehr Khan is not reflected in the column of ownership of said Khatas. In Khata No.1568 Mehr Khan is co‑sharer and his name is appearing in the column of ownership while name of plaintiff Muhammad Bakhsh is missing. Same is the position in Khata No.1570. In this Khata Muhammad Bakhsh plaintiff is not entered as a co‑sharer.

7. The property in dispute entered in all above‑mentioned four Khatas had been transferred through Mutation No.4995 and the vendor executed no separate sale deeds. The plaintiffs/respondents were under obligation to prove their superior right of pre‑emption in all the said Khatas and in order to succeed in a pre‑emption suit, the pre‑emptor should have a subsisting right at three stages, namely, on the date of the sale, on the date of institution of suit and on the date of passing of decree. In this context, reference may be made to the cases of Hasil and another v. Karam Hussain Shah and others (1995 SCMR 1385) and Allah Ditta and others v. Said (2000 SCMR 1257).

8. Both the Courts below have misread/non‑read the documentary evidence of plaintiffs/respondents. The plaintiffs are not co‑sharers in all four Khatas from where the suit land has been transferred in favour of the vendee/petitioner. In two Khatas i.e. 1564 and 1565 Muhammad Bakhsh is co‑sharer and in other two Khatas Mehr Khan is co‑sharer. Both the plaintiffs/respondents are not co‑sharers jointly in all the four Khatas.

9. The sale of land though situated in different Khatas had been made through a single transaction/mutation. The pre‑emptors in order to succeed in their claim for pre‑emption have to prove their preferential right in each Khata. Reference in this context can be placed to the case of Malik Mitha v. Jamal Din and 2 others (PLD 1990 Lahore 186). The transaction in dispute is a joint transaction and plaintiffs have failed to establish their superior right of pre‑emption as co‑sharers in the said four Khatas.

10. Although the present petitioner had not challenged the finding of the learned trial Court on Issue No.2 before the Appellate Court by filing a separate appeal or cross‑objection but the Appellate Court is empowered to vary or reverse the decree of lower Court in favour of a party failing to prefer appeal. Filing of appeal by a party claiming equitable relieve not necessary as enshrined in Order 41, rule 33, C.P.C. The basic principle underlying the said provision is that where the trial Court failing to take stock of important legal point, the Appellate Court can interfere with judgment and decree passed against a person who has not challenged it in appeal. In such‑like circumstances, the High Court can set aside the judgment of the lower Appellate Court under section 100, C.P.C. Reliance can be made to the case of Mahboob Alam v. Mir Zaman and others (PLJ 1974 Lahore 95). The provisions of firs appeal/second appeal of the Civil Procedure are applicable to the revision petition mutatis mutandi and by applying above‑said principle laid down in the above‑referred case to the case in hand; this Court in exercise of revisional jurisdiction would interfere to correct the errors of the lower Courts and finding based on misreading, misconstruction, non- reading of evidence could be set aside in a revision as laid down in the cases, of Shabbir Ahmad and others v. Khushi Muhammad and others (1993 CLC 2316), Muhammad Bakhsh and 4 others v. Province of the Punjab and 2 others (1994 SCMR 1836), Nasir Abbas v. Manzoor Haider Shah PLD 1989 Supreme Court 568) and Jan Muhammad Khan v. Shah Mir Hussain and others (1985 SCMR 2029).

11. The suit of the plaintiffs/respondents had been dismissed by the trial Court on the basis of finding on Issue No. 1 that the plaintiffs failed to fulfil the requirements of `Talbs'. Plaintiffs preferred appeal against the judgment and decree passed by trial Court dismissing their suit for pre‑emption but finding on Issue No.2 (superior right of pre‑emption) though had not been challenged by the petitioner through a cross -objection and the lower Appellate Court set aside the judgment and decree of the trial Court reversing findings on Issue No.

1. The petitioner had not challenged the finding on Issue No.2 (superior right of pre emption) but a party to suit could not be made to suffer by the mistake of Court, if such Court did not correctly appreciate the evidence on record and came to a wrong conclusion, it is the right of a litigant and duty or the Appellate Court to come to the correct conclusion on the basis of evidence on record. Where the Court commits an error, it is the duty or the Appellate Court to correct it and pass the judgment, which the Court of first instance should have passed on the date when it gave its decision.

12. Where right of pre‑emption on the basis of co‑sharership could not establish on record, findings of Courts below passing decree in favour of plaintiffs would be set aside by the High Court in exercise of its revisional jurisdiction. Reference can be made in this context to the case of Jalal Khan v. Muhammad Banaras and 2 others (1988 CLC 414). Institution of Courts exists for sole purpose of administering justice to parties, in cases brought before them‑‑‑Rules of Procedure are enacted to assist Courts in reaching, correct and just decision‑‑‑Unless un -surmountable technicalities, if found to obstruct cause of justice, must be avoided. Reference may be made to the case of Khuda Dad v. Ahmad Khan (1988 CLC 25). Right of a co‑sharership for superior right of pre emption had been claimed by the plaintiffs/respondents is a person who owns a share in undivided joint property with other persons and from minute scrutiny of the record it is proved that plaintiffs are not Co -sharers in the four Khatas in dispute.

13. Both the Courts below have omitted to take into consideration the important documentary evidence produced by the plaintiffs/respondents in order to establish their superior right of pre‑emption being co‑sharers of the Khatas in dispute. Hence, findings of both the Courts below on Issue No.2 are set aside. No other point was urged before this Court by learned counsel for the parties.

14. For the foregoing reasons, this revision petition is accepted, the judgment and decree of the lower Appellate. Court is set aside and that of the trial Court is restored. There shall be no order as to costs. S.A.K./A‑11/L Revision accepted.