P L D 1995 Lahore 409 (PLP)

(2,A.) Whether proper court-fee was paid within time? OPP. (3) Whether the plaintiffs are estopped by their words and conduct from bringing the present suit? OPD. (4) Whether the pre-emptors have a preferential right of pre-emption ? OPP. (5) Whether a sum of Rs.2,95,875 was fixed in good faith or actually paid as price of land in dispute? OPD. (6) If issue No.5. is not proved, what was the market value of the land in dispute at the time of sale? OP. Parties. (7) Relief.

3. In support of their case, respondents/plaintiffs, in addition to producing certain documents, examined Sh. Riaz Ahmad, Office Qanungo, P.W.1 and one of the respondents/plaintiffs namely Ghulam Jilani appeared as P.W.2. The evidence of the appellants/defendants comprised of the statements of Mehr Khizar Hayat, D.W.1, Allah Yar, D.W.2, Asghar Ali, D.W.3, Muhammad Ramzan, D.W.4, Shahamand, D.W.5 and Haq Nawaz, D.W.6, one of the appellants and documents Exh.Dl to Exhs.Dll.

4. The suit was decreed by the .trial Court on 31-5-1981 which found that the respondents being owners in the estate had superior right of pre-emption as against the appellants who were strangers. Their pleas that they were too owners in the estate and tenants of land in suit were held not to have been proved. Aggrieved, the appellants have come to this Court by filing this appeal.

5. Mirza Manzoor Ahmad, learned counsel for the appellants, has challenged the finding of the trial Court on issue No.4 only. He has contended that the respondents/plaintiffs have failed to establish their superior right of pre-emption and there was no evidence to support the findings of Court that respondents were owners in the estate. It was emphasized that onus of issue No.4 was on respondents who examined Sh. Riaz Ahmad, P.W.1, as their solitary witness in affirmative who did not say anything on that issue. According to the learned counsel, the statement of one of the respondents/plaintiffs recorded after the evidence of the appellants could not be read in evidence. He relied upon Murid Hussain v. Muhammad Lal 1987 CLC 101 and Naseer Ahmad v. District Judge, Multan and 4 others PLD 1992 Lah. 92 in support of this contention. Learned counsel further maintained that in the absence of any document to establish that the respondents were owners of the agricultural land in the revenue estate, the suit could not have been decreed. In that respect, Asad Ali Alvi v. Nasir PLD 1982 Lah. 358, Tehmas Khan etc. etc. v. Mst. Bastari PLD 1985 Pesh. 86, Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026 and Muhammad Naveed v. Ghulam Muhammad 1994 SCMR 559 were cited.

6. None of the contentions raised by the learned counsel for appellants, have any force in the circumstances of the case. There can be no cavil that under Order 18, Rule 1, C.P.C. the plaintiff must produce whatever evidence he wishes to rely upon in the first instance to prove those issues, onus of which lies on him and he cannot be permitted as a general rule to lead any evidence in affirmative while producing evidence in rebuttal.

7. In the present case, however, it is to be seen that while closing the affirmative evidence on 15-11-1978, the learned counsel for the plaintiffs/respondents had specifically reserved the right to examine the plaintiffs after the defendants' evidence in rebuttal as also in affirmative. No objection whatsoever was raised by the appellants at that stage. On the other hand, they acquiesced in this procedure by producing their evidence without any protest and cross-examined the plaintiff/respondent No.l (Ghulam Jilani) when he deposed as P.W.2 in support of all those issues. It is too late in the day for them to urge this objection for the first time before this Court in appeal. The procedural irregularity, if any, cannot be made a ground for having the decree set aside especially when the procedure was adopted with at least tacit consent of the appellants. Furthermore, according to section 99 of C.P.C. a procedural irregularity not affecting the merits does not vitiate the decree in the absence of any prejudice. Learned counsel for the appellants has not been able to point out as to what evidence defendants could have produced in rebuttal had plaintiff No.l appeared as a witness before 'the evidence of the appellants was recorded. .

8. Reliance of the learned counsel for appellants on Al-Haj Khalil Ahmad v. The Australasia Bank Ltd. Lahore and another 1979 CLC 494 and Naseer Ahmad v. District Judge, Multan and 4 others PLD 1992 Lah. 92) is misplaced as those cases are clearly distinguishable. In the first case, an objection was raised at the very stage at which the plaintiff wanted to reserve his right to examine himself in affirmative while leading evidence in rebuttal while in the latter case no evidence whatsoever was produced by the defendant. In the present case, it hardly lies with the defendants/appellants to raise any objection after having led their complete evidence.

9. We are not impressed by the contention of the learned counsel for the appellants that there is no evidence to support the finding of the trial Court that the respondents were owners in the estate or that this fact could only be proved by documentary evidence. The plaintiff/respondent No.l, while appearing as P.W.2 categorically stated that he was owner in the estate. Not only was he not cross-examined on this aspect by the appellants but no evidence whatsoever was led by them to rebut his statement. Even defendant appellant No.l while appearing as D.W.6 did not say anything in this behalf.

10. To us, it is evident that plea of the respondents that they had superior right of pre-emption was primarily contested on the ground that the appellants too were owners in the estate and further that they, being the tenants, had superior right of pre-emption. The appellants do not appear to have seriously challenged the claim that the respondents were the owners in the estate. Although in the written statement there was denial of the contents of para. 5 of the plaint but that denial was explained by the defendants/appellants themselves by alleging that they were also owners in the estate as tenants.

11. Learned counsel for the appellants has himself conceded that the appellants have not been able to establish either their tenancy or that they were also owners in the estate. Both D.W.5, a witness produced by the appellants in the cross-examination as also by Haq Nawaz, appellant No.17, while appearing as D.W.6 have admitted that the respondents were owners of the land in the same village. Learned counsel for the appellants has contended that these admissions were not sufficient to warrant the finding that the respondents were owners in the estate as neither D.W.5 nor D.W.6 had stated that the land owned by the respondents was agricultural in nature. We are unable to agree with the learned counsel for appellants. The categorical admissions of D.W.5 and D.W.6 cannot be brushed aside on a plea which to us appears to be an afterthought besides hyper-technical and is nothing but hair splitting.

12. So far as the cases relied upon by the learned counsel for the appellants are concerned, none of them has any applicability, as what has been held therein is that a plaintiff must appear as a witness to support his case. There is nothing in these precedents to support the contention that in order to prove ownership in the estate it is necessary to produce documentary evidence. This fact may well be established by oral evidence. Be that as it may, this question does not arise in the present case in view of clear admissions of D.W.5 and D.W.6. No other ground has been urged in support of this appeal which is found to be without any merit and accordingly dismissed with no order as to costs. AA./A-816/L Appeal dismissed.