1988 PLP 714 (MLD)

Alongwith this appeal, an application for staying the proceedings in the lower Court was filed, but the same was not fixed for hearing as the appeal was returned with the objection that the fresh documents should either be removed or an application under Order XLI; Rule 27, C.P.C. duly, supported by an affidavit be filed. The appeal, it appears was refiled on 26-5-1966. The appeal, as office stamp indicates, was fixed for hearing on 27-5-1966 but for the same reason the appeal was not laid before the Court on the said date. Another office stamp bearing signature of Deputy Registrar dated 31-5-1966 shows that the appeal was fixed for 11-6-1966 (actual) in motion and the record was also directed to be called for the said date. In the meanwhile, on 25-6-1966, another application was filed by the appellants seeking permission to file on record two certificates issued by the Commissioner Mangla Dam Affairs, Mirpur declaring the appellants to be the persons affected by the construction of Mangla Dam Reservoir on account of acquisition of land for the purposes of Mangla Dam Reservoir. These certificates were sought to be brought on record so as to press into service Notification dated 15th September, 1965, of the Board of Revenue, West Pakistan published in the Gazette of West Pakistan dated September 24, 1965. A copy of this notification was earlier attached with the memo. of appeal. This notification reads as under:-- "In exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913 (Punjab Act I of 1913), the Board of Revenue, West Pakistan, is pleased to declare that for three years from the date .of publication of this notification, no right of pre-emption shall exist with respect to the sale of agricultural land not exceeding 50 acres in a canal irrigated area and other immovable property not exceeding the market value of Rs. 10,000 (Rupees ten thousand only), in favour of a person displaced from the Azad Kashmir who is affected by the construction of Mangla Dam and certified to be so affected by the Commissioner, Mangla Dam Affairs, Azad Government of the State of Jammu and Kashmir"

3. The appeal was laid before a learned Judge of this Court, it appears, for the first time on 16-2-1967, and the same was admitted and status quo was ordered to be maintained. In the admission order the certificates and the aforesaid notification were duly noted. It is pertinent to state here that in the meanwhile the trial Court vide judgment dated 13-6-1966 decided issue No. 3 holding that the market value was not less than Rs. 13,000 but as the case of the defendants (present appellants) was that they had paid only a sum of Rs. 12,350 the same was held to be the market value of the land in dispute. The respondent, it was stated before me, deposited the amount on 6-7-1977 and obtained possession of the land in dispute in the year 1967, as the execution proceedings after satisfaction of the decree were consigned to record vide order dated 6-10 1967 of the Executing Court.

4. At this stage, it is important to mention that on 26-6-1983 the appeal was fixed for arguments when an application (C.M. No. 3262 C/85) was filed for permission to amend written statement and to produce additional evidence. Learned counsel for the parties have addressed arguments on the Misc. application as well as on the appeal.

5. Learned counsel for the appellants raised the following contentions:-- (i) that the amendment application was moved so as to formally include the legal objection in the written statement as otherwise the' purpose of giving proper notice of the pleas by inclusion in the written statement was fully achieved as the legal objection was raised in the memo of appeal and was noticed in the order admitting this appeal; (ii) that the existence as well as the legal effect. of the notification should have been noticed by the Court itself as it is the primary duty of every Court to give effect to the law irrespective of the failure of a litigant to raise a question of law: (iii) that with the issuance of the notification, the right of pre-emption no longer existed and, as such, the appeal could not be accepted by the learned Additional District Judge; (iv) that the evidence produced by the plaintiff pre-emptor failed to establish that he was the son of Fazal Ali and nephew of Abdul Aziz, the two vendors, and the finding to the contrary recorded by the learned Additional District Judge is illegal. Reliance was placed on Ghulam Muhammad v. Allah Yar (P L. D 1905 Lah. 482); and (v) that Zakaullah respondent having participated in the sale transaction, had lost the right of pre-emption, if any, and the finding recorded by the learned trial Court was illegally reversed.

6. Learned counsel for the respondent on the other hand, argued that the amendment cannot be allowed to be made in the year 1984 i.e. after expiry of almost 18 years of the filing of the suit. Reliance was placed on Fateh Muhammad v Ghulam Muhammad (P L D 1961 B J 62) and Jalal Din v. Muhammad Aslam (1982 C L C 1282). He further submitted that the relationship between the plaintiff pre-emptor and the vendors stands fully established on record and that no adverse inference can be drawn on account of non-production of testimonials or birth certificate of the respondent. Finally, it was submitted that mere presence at the time of the sale transaction cannot give rise to estoppel.

7. I have considered the respective submissions of the parties and have also gone through the evidence on record. The submissions of the parties on the question of relationship may be noticed first as in case the decision on this issue goes in favour of the appellants, the question of amendment and legal effect of notification dated 15-9-1965 need not be gone into. The respondent-plaintiff claimed in the plaint that he being the son of Fazal Ali and nephew of Abdul Arif was heir of the vendors and, as such. held superior right of pre-emption. In the plaint it was further asserted that Fazal Ali and Abdul Aziz vendors were sons of Fateh Khan. In order to prove this relationship he produced three witnesses. Sardar Khan (P.W. 1) stated that he was a Lambardar and he belonged to the brotherhood of the vendors and was connected with them in eight or ninth degree. He deposed that the plaintiff was son of Fazal Ali who was brother of Abdul Aziz. In cross-examination, on the question of price and mortgages he prevaricated and, as such, was adversely commented upon by the learned trial Court. Ahmad Khan (P.W. 2) deposed that Fazal Ali vendor was his relative as ;aid Fazal Ali and his father were real brothers and they were sons of Lal. He deposed .that the plaintiff was son of Fazal Ali. In cross-examination he stated that Fazal Ali lived with his brother Zafarullah and the plaintiff lived separately from his father. He also stated that the attorney of the plaintiff contacted him in the Courts where he had come to prosecute his own case pending in the Court of Mr Ghulam Rasool Civil Judge. He does not appear to be knowing other facts relating tc the sale and the land in question. Mehar Din (P.W. 3) attorney of the plaintiff stated that the plaintiff was the son of Fazal Ali and Abdul Aziz was brother of Fazal Ali. He further deposed that he was relative of the vendors. In cross-examination, he, however, deposed that his relationship with the vendors came into existence only about a year ago, as his daughter was married to a son of Fazal Ali. He further deposed that the plaintiff and Fazal Ali lived in the same house, that the plaintiff was unmarried and that he was not aware whether the plaintiff and his father had a common kitchen and that the vendors had got this fictitious suit filed through the plaintiff. It is also in the evidence that the plaintiff respondent was F.A. and the Birth and Death Register was being maintained by the Chowkidar of the village and that the pedigree-table of the vendors was also available in the revenue record. None of these documents was admittedly produced in the trial Court. In this respect learned counsel for the respondent submitted that the respondent-plaintiff did seek time from the trial Court on 30-6-1965 for production of documentary evidence but could not produce as only one day's adjournment was given. It may be mentioned that on 30-6-1965 the testimony of the witnesses produced by the plaintiff was recorded and the suit was adjourned for 1-7-1965 for production of documentary evidence of the plaintiff and the evidence of the defendant. On the adjourned date i.e. 1-'7-1965 evidence of the defendants-appellants was recorded and closed, but the Court on the request of the counsel for the plaintiff allowed time for production of documentary evidence as the suit was adjourned to 22-7-1965. On this date, documentary evidence was produced through the statement of Zakaullah plaintiff, himself. In this statement, Zakaullah respondent did not depose about the averments contained in the plaint or as to the relationship on the basis of which superior right of pre-emption was claimed. It will be noted that Zakaullah plaintiff appeared at this stage personally, though earlier it was his attorney Mehar Din who was prosecuting the suit and who had appeared as P.W.

3. It is also important to note that neither Fazal Ali nor Abdul Aziz appeared as witnesses in support of the assertion of the plaintiff. According to P.W. 2, the name of the father of Fazal Ali was Lai whereas the name of the father of Fazal Ali, as recorded in mutation (Exh. P. 1) is Fateh Ali. Ahmad Khan (P.W. 2) on his own showing was caught hold of in the Court premises and he obliged the attorney of the plaintiff by appearing in the Court as a witness. Moreover, except for the relationship deposed to, he does not appear to be knowing anything about the sale transaction or about the land in dispute. His testimony was, therefore, rightly discarded by the learned trial Court. The learned lower Appellate Court failed to correctly evaluate the statement of this witness. The testimony of this witness as well as the other two witnesses is not sufficient to prove the alleged relationship as these statements do not qualify the test laid down by section 50 of the Evidence Act. Reference in this connection may be made to Ghulam Muhammad v. Allah Yar (P L D 1964 Lah. 482). In this case, evidence of the witnesses produced also proving the relationship was commented upon by the learned Judge as under:-- "In the present case the Courts below have failed to critically examine the statements of the witnesses as to the relationship from this angle and it has, therefore, become necessary for me to go into the evidence again to see if it was rightly admitted. D.W. 1 Lai Khan is a resident of Mauza Kaurewala Tehsil Kabirwala and is a Sarbarah Lambardar. He knew Sardar Khan, son of Bahawal Khan. According to this witness, Shah Alam Khan, the brother of Bahawal Khan used to cultivate lands in Kariwala. Sher Khan, the son of Shah Alam, was born to him from one of his wives. This statement of the witness about the relationship is not based on any opinion. He has spoken from his knowledge about one of the wives of Shah Alam Khan and the birth of Sher Khan from that wedlock. His evidence about the birth of the child is admissible independently of section 50 of the Evidence Act. D.W. 2 Sada is also a resident of Kaurewala. He has merely stated that he knew Sher Khan who was the son of Shah Alam Khan. D.W. 3 Gul Muhammad is a resident of Maddoki and is related to the family. He has deposed that Sher Khan was the real brother of the plaintiffs. He has also deposed that Ser Khan deceased was the brother of the plaintiffs. D.W. 5 is Muhammad Khan, defendant No. 8, who has similarly testified about this relationship. There is little doubt that the last mentioned four witnesses would be having special means of knowledge about the relationship of the parties but it is equally clear that they have given no evidence of the conduct on which their opinion about the relationship is based. In the light of the law discussed above, their opinion about the relationship of the parties is legally irrelevant and inadmissible in evidence. I shall, therefore, rule it out of my consideration." In the instant case also, Sardar Khan son of Fateh Ali (P.W. 1) claimed that he was a Lambardar and was related through Baradri to the vendors. From this, what could be inferred is that he had the special means of knowledge. He, 'however, failed to give evidence of the conduct on which his opinion about the relationship was based. Similarly, Mehar Din (P.W. 3) came into contact with !he vendors only about a year or so prior to 30-6-1965 i.e. the date of recording of his statement. On the basis of that relationship he asserted that the plaintiff was the son of Fazal Ali. Nothing was stated by him with reference to the conduct on the basis of which he deposed about the relationship. It may be noted that it is the opinion expressed by conduct which is relevant under section 50 of the Evidence Act. Moreover, it cannot be said that Mehar Din or Sardar Khan P.Ws. were deposing about contemporary events of which they had direct knowledge. Mehar Din P.W. knew the parties only for the last about one year and the statement of Ahmad Khan P.W. fails to inspire confidence. He in the examination-in-chief failed to give any pedigree-table of the vendors. Learned trial Court which had recorded his evidence thought it fit not to act upon his testimony. In these circumstances, the learned Appellate Court was not at all justified in reversing the finding of the learned trial Court recorded on issue No.

1. I am, therefore, of the considered view that on the basis of the evidence on record, the plaintiff utterly failed to establish the relationship. Consequently, the finding on this issue of the learned lower Appellate Court is set aside and that of the trial Court is restored.

8. As regards estoppel, the finding of the learned Appellate Court needs no interference as on account of mere presence at the time of the transaction, estoppel cannot be spelt out, Though the finding of the learned trial Court on issue No. 1, which has been upheld and restored by me, is sufficient to set aside the impugned judgment and to render the judgment dated 13-6-1966 passed after remand inconsequential, yet it is appropriate to offer some comments on the question of amendment. It is pertinent to note in this connection that the suit was dismissed on merits on 29-9-1965 whereas the notification dated 15-9-1965 was published in the official Gazette on 24-9-1965 i.e. one day after the decision of the suit. Thus, the plea that the plaintiff had no right of pre-emption in view of the aforesaid notification became available to the appellants after the decision of the suit. Thus, the objection which can be raised is that the aforesaid plea should have been raised during the hearing of the first appeal. It is also pertinent to note that the appeal was filed on 1-11-1965, the appellants who were respondents before the lower Appellate Court appeared through counsel after service of notice on 11-1-1966. The record was not available even on the next date of hearing i.e. 27-1-1966 and the appeal was adjourned to 19-2-1966 when the arguments were heard and the appeal was accepted in the manner noted above. The second appeal was filed on 23-5-1966 placing reliance on the notification. It will, therefore, be seen that the plea based on the notification was raised within a period of about three months of the decision of the first appeal. The notification itself was published after the decision of the suit. The question of law was thus raised within a year of the enforcement of the notification and in these circumstances, it cannot be said that question of law is being raised after a period of 18 years. This appeal was admitted, inter alia, to examine the legal aspect of the notification. In these circumstances, there is force in the submission of the learned counsel for the appellants that amendment application riled in 1983 was a mere formality and made so as to comply with the technical provisions of procedural law. The purpose of law of pleadings i.e. that the parties should have notice of the questions raised, was achieved by raising the point at the time of filing the appeal and, as such, no prejudice has been caused to the respondent. The formal application to incorporate the amendment in the written statement' moved in the instant case cannot be equaled with application for amendment filed and disallowed in the reported cases, referred to above. In the Baghad-ul- Jadid case of Fateh Muhammad v. Ghulam Sarwar, amendment was sought at the appellate stage when the suit itself remained pending before the trial Court for a period of seven and a half years. In the other case of Jalal Din, after issuance of the notification, for well over six years the objection was not taken. In these circumstances, it was held in these precedents that it would not be proper exercise of the direction to allow an amendment which would involve the setting up of a new case. As against the view taken in the aforenoted two cases, learned Judges of the Supreme Court of Pakistan in the case of Karamat Ali and another' v. Muhammad Yunas Haji and another P L D 1966 S C 191 allowed the amendment at the stage of appeal in the Supreme Court as the nature of the suit was not altered by addition of prayer for possession. Reference may also be made to Mst. Zubeda Begum and another v. Wali 1Nluliammad Khan and 2 others (1974 S C M R 181) and Sardar Mir Usman Tarcen v. Syed Muhammad Hassan & Sons and 2 others (1980 S C M R 871). 1 am of the view that had this appeal. not concluded on the finding returned by me on issue No. 1, 1 would have allowed the amendment and remitted the case for proof of the certificates available on the record and for evidence in rebuttal, if any.

9. The net result of the above discussion is that this appeal succeeds. The judgment dated 19th February, 1966 of the learned First Appellate Court is set aside with the result that the decree of dismissal- of suit dated 23-9-1965 of the learned trial Court stands restored. The judgment dated 13-6-1966 of the trial Court passed in respect of issue No. 3 is rendered ineffective. In the peculiar circumstances of the case, there shall be no order as to costs. M.Y.H./2918/L Appeal allowed.