1980 PLP 1611 (CLC)

(3) Whether the sum of Rs. 9.000 was fixed in good faith or actually paid as the sale consideration ? O.P.D. (4) If Issue No. 3 is not proved what is the market value of suit land 7 O.P,P. (5) Relief.

6. The learned trial Court 7found Issue No, I against the appellants, whilst Issue No. 2 was found in favour the respondents. Under Issue No. 3 it was held that Rs. 9,000 was the actual sale price paid which was bona fide fixed. As a result of the findings arrived at by the trial Court it decreed the suits by judgments dated 4th June 1969 on payment of Rs. 9,000 on or before 28th June 1969 failing which the suits were to stand dismissed

7. Aggrieved by these judgments and decrees passed by the trial Court, the appellants preferred two separate appeals before the learned Additional District Judge, Gujrat who concurred in the findings as arrived at by the trial Court and dismissed the appeals with costs by his judgments dated 2nd October 1969. Hence these second appeals.

8. The learned counsel for the, appellants contended :- Firstly that the pedigree table which was the best evidence to prove that the respondent was a collateral of the vendors was not produced on record and was intentionally withheld as the same went against the case of the respondent ; secondly that the evidence relied upon by the Courts below, viz. statements of Muhammad Latif P. W. ? and Shahzada P. W. 3 to hold that the respondent-pre-emptor was a collateral of the vendors, was not admissible in evidence and was hit by the provisions of section 32 (5) read with section 50 of the Evidence Act. Reliance was placed, in this regard on Shah Nawaz area' another v. Nawab Khan P L 1? 1976 S C 767 and Mt. Chunna hcutwar v, Lala Mukat Behari Lai and others AIR1934All.117. It was also asserted that the evidence of D. W. 4 was not adverted to by the Courts below and his assertion in the examination in-chief to the effect that the respondent was neither a collateral nor a co-sharer of the vendors having not been cross-examined had to be taken as correct. It was also submitted that the mere statement of the respondent claiming himself to be the collateral and a co-sharer of the vendors should not have been given any weight in view of the above position. Thirdly that in order to assist the Court and to arrive at a just finding request was made before the lower Appellate Court to allow leading of additional evidence by production of pedigree table of the respondent which request was without justification and illegally brushed aside. Elaborating his contention the learned counsel submitted that the pedigree table of the respondent was available in the Central Record Office, and a request was made to the lower Appellate Court to allow production thereof which was not acceded to. He further submitted that a copy of the pedigree table has been placed on record of these appeals; and Lastly, relying on Mst. Raj Bibi v, Additional Chief Land Corm missioner, Punjab, Lahore and 2 others P L D 1975 Lah. 408 the learned counsel submitted that there was a gift in favour of the appellants in respect of the land in the same village made prior to the institution of the suit by the respondent and the appellants having improved their status by becoming owners in the village, the Courts below acted illegally in hold ing that the appellants were not owners in the estate.

9. On the other hand learned counsel for the respondent submitted that whether the gift had completed or not, is a question of fact and the Courts below having concurrently held that there was no complete gift in favour of the appellants due to non-fulfilment of condition as to delivery of possession, their finding was not open to question. He said the Courts below were justified in holding that the appellants were not owners in the estate. Learned counsel for the respondent also submitted that the position whether the respondent was a collateral of the vendors being also a question of fact and having been concurrently found in favour of the respondent by the two Courts below it was not open to scrutiny by this Court in a second appeal. .

10. The contention raised on behalf of the appellants that Issue No. 2 as to whether the respondent had a superior right of pre-emption did not stand proved, has merit. It has been rightly pointed out by the learned counsel for the appellants that none of the two witnesses produced by the respondent-plaintiff conformed to the requirement of a witness who could depose as to the relationship between the respondent and the " vendors. Nothing has been said by these two witnesses about the special knowledge they had about the relationship between the vendors and the respondent/ pre-emptor. Muhammad Latif P. W. 2 merely stated that respondent-plaintiff was the collateral of the vendor in the fourth degree. He gave name of the father of the vendors, but was unable to give the name of his sister or mother. Fie also gave the name of the father of respondent and tried to connect the vendors with the respondent. He answered in the negative when asked whether he was a collateral of the vendor or the respondent-plaintiff. He also stated that their families were different. The-testimony of Shahzada P. W. 3 is still more scant on this point.- Fie just stated that the respondent was -collateral of the vendors in the fourth degree. In the cross-examination he admitted that the family of the respondent was different and that he was not related to him. The respondent himself appearing as P. W. 4 made a bald assertion that he was a collateral of the vendors and a co sharer. In the cross examination he could not give the name of the grandfather of the vendors nor could name the sisters of their grandfather. He also stated in reply to a question in the cross-examination that there was no pedigree table of his family.

11. It has also been rightly pointed out by the learned counsel for the appellants that the pedigree table had been intentionally withheld by , the respondent, the same being against the case set up by him on the false pretext that there was no pedigree table ref his family. The pedigree table of respondent, he being a refugee, could be conveniently obtained froth the Central Record Office

12. The onus of proving of Issue No. 2 being on the respondent- plaintiff, it was necessary for him to have discharged the onus effectively and by a reliable evidence. He withheld the documentary evidence and the oral evidence adduced by him did not conform to the legal standards required for proving the relationship. In fact as rightly pointed out by the learned counsel for the appellants, the oral evidence adduced on the issue of relationship between the vendors and the respondent was inadmis sible. The Supreme Court authority Shah Nawaz and another v. Nawab Khan (P L D 1976 S C 767) squarely applies to the present case.

13. It may also be pertinently pointed out that the learned counsel lot' the respondent very candidly conceded that the oral evidence brought on record was inadmissible as it did not conform to the provisions of section 23 (5) read with section 50 of the Evidence Act.

14. Yet another aspect of the mutter is the non-consideration of the evidence of appellants on this issue. The- testimony of the appellant Muhammad Inayat appearing as D. W. 4 wherein lie categorically asserted as under :-- had not been adverted to at all by the Courts below. It may be pointed out that not a single question was put to this witness to negate his above assertion. Not even a suggestion was made that his statement to the o above effect was incorrect. It is well established that a portion of the testimony of the witness which has not been cross-examined about has to be taken as correct. 15 It may also be observed that the respondent did not produce any evidence at all not even a copy of Jamabandi to prove that he .was a c o- E sharer in the suit land or was an owner in the village or estate. He contented in this regard only on his own bald assertion which was con troverted by the appellant .in his statement.

16. In the presence of the above evidence, the finding of the Courts below holding the respondent a collateral of the vendors and a co-sharer, are apparently not well placed. The findings are otherwise also based on inadmissible evidence and thus cannot be sustained especially in view of the unrebutted evidence of the appellants-defendants that the respondent was neither a collateral of the vendors nor a co-sharer.

17. Before parting it would be worthy of mention that it has been' persistently held that the right of pre-emption is a predatory inroad on free transactions of sales and as such the right of pre-emption has to be established. most positively and that technicalities have to be strictly applied to the case of a pre-emptor. In this view of the matter also it can be safely said that the respondent had not been able to discharge the onus of proof of Issue No. 2, The findings of the Courts below on this issue are, therefore, reversed and it is held that the respondent-plaintiff did not possess a superior right of pre-emption.

18. I am not unmindful of the position that generally concurrent findings of the Courts below are not interfered with in a second appeal. But then if the findings are based on inadmissible evidence and are also recorded in disregard of other provisions of Evidence Act, there is no impediment to reverse such concurrent findings in a second appeal.

19. In view of my above findings on Issue No. 2 I do not feel called upon to deal with the other contentions raised by the parties.

20. As a result these appeals succeed, and judgments and decrees of the learned Additional District Judge and of the Civil Judge-I1 Class, Mandi Bahauddin dated 2nd October 1969 and 4th June 1969 respectively are set aside and the suits tiled by the respondent-plaintiff are dismissed. In the peculiar circumstances of the case the parties are left to bear. their own costs. S, A. H, Order accordingly.