1999 PLP 2633 (SCMR)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the judgment dated 10-4-1993, passed by the Lahore High Court, Lahore, whereby it dismissed R.S.A. No.212 of 1987 filed by the appellant.

2. The facts, in brief, are that Abdul Ghaffoor, Faqir Muhammad , Wali Muhammad and Muhammad Iqbal, respondents Nos. l to 3 and 5 herein, filed a shit for possession through pre-emption against Muhammad Ashraf appellant with regard to the suit land on the ground that they were owners of agricultural land in the 'Khata' in which the land in dispute was situate and that they were also owners in the estate and as such they had superior right to pre-empt the sale. It was also stated in their plaint that the sale price of Rs.50,000 was fictitiously shown against the actual sale price of Rs.34,

062. Muhammad Arif respondent No.4 herein, also filed a separate suit against the appellant for possession through pre-emption of the suit land on the basis that he was a joint owner in the khata in question and was also owner in the estate and had superior right to pre-empt the sale in dispute as against others. He also stated that Rs.50,000 were fictitiously shown in the sale-deed whereas in fact the same was sold for Rs.41,

000. Both the suits were consolidated.

3. By judgment dated 9-6-1984 the learned trial Court decreed the suit in favour of Abdul Ghafoor, Faqir Muhammad, Wali Muhammad and Muhammad Arif, respondents Nos. l to 4 and against the appellant, whereas the suit filed by Muhammad Iqbal, respondent No.5 herein, was dismissed, as it was withdrawn by him.

4. Feeling aggrieved, Muhammad Ashraf appellant filed an appeal, which was dismissed by the learned Additional District Judge, Gujranwala, vide judgment dated 17-11-1987. He then filed a second appeal in the Lahore High Court, which, too, was dismissed vide judgment and decree dated 10-4-1993.

5. Leave to appeal was granted by this Court on 29-5-1994 to consider the effect of the sale dated 12-3-1973 and the decree of the Civil Court dated 12-12-1981 passed in favour of the appellant. 6.. It is contended that the Courts below erred in not considering the improvement made by the appellant in his status before the institution of the suits for pre-emption and the learned High Court also misdirected itself in holding that the decree dated 12-12-1981 in favour of the appellant was collusive. It is further maintained that oral as well as the documentary evidence was not considered in its true perspective. 7.The sale, which is subject-matter of the suits, took place on 5-3-1973, while- the sale agreement pressed into service by the appellant was entered into on 12-3-1973 for a piece of land measuring 5 Marlas for a consideration of Rs.94 through an unregistered document. No mention of it was made by the appellant in the written statement filed by him in the suits for pre-emption filed by the respondents. There, the appellants simply denied the existence of any superior right of pre-emption in favour of the respondents. This was a clear violative of Rules 3, 4 and 5 of Order VIII, C.P.C., which require a defendant to specifically deny each allegation of fact, which he does not admit and disapprove the evasive denial.

8. The learned Additional District Judge observed that the appellant could not be considered as owner in the estate on 5-3-1974 when the pre-emption suits were filed by the respondents, for, the title of the suit land was confirmed in his favour through a decree of the Civil Court dated 12-12-1981. The crucial date was the date of filing the suits. The position would have been certainly different if the decree had been passed in favour of the appellant before the said date.

9. It would not be out of place to mention here that the declaratory suit was filed by the appellant in respect of the said agreement to sell on 30-11-1981 i.e. 7 years after the filing of the pre-emption suits. The suit was not contested 8 by Khuda Bakhsh and a consent decree was passed in favour of the appellant on 12-12-1981. No efforts were made by the appellant to get a mutation sanctioned in his favour prior to the passage of the said decree. The learned High Court while rejecting this circumstance observed as under:-- "The suit was filed on 5-3-1974. In the written statement filed on 14-4-1974 it was not mentioned that the appellant had become owner of the estate by virtue of purchase of land from one Khauda Bakhsh through sale deed Exh.D.l which is unregistered document, the consideration having been fixed as Rs.94. The said sale deed is dated 12-3-1973. In the list of reliance the same was not mentioned by the appellant. After long period of eight years the appellant filed a suit against said Khuda Bakhsh who appeared before the Court - and conceded the decree in his favour as is manifest from Exhs.D.2 and D.3. On the basis of this consent decree mutation was got sanctioned (Exh.D.4) bearing No.365 and an application was made before the trial Court for production of these documents as additional evidence. Scribe of sale-deed (Exh. D.1) namely Ch. Muhammad Azam Cheema, Gujranwala, was not examined. The document is unregistered, therefore, in these circumstances I have no hesitation in concluding that it was prepared later on in collusion with Khuda Bakhsh and consent decree was collusively obtained from the Court in order to create evidence for getting mutation sanctioned in the Revenue Record, for, if Khuda Bakhsh vendor. of the appellant had sold his land on 12-3,-1973 and he was not disputing the title of the appellant on the basis of the said sale as subsequently while appearing in the Court he did not contest the suit, there was no explanation as to why mutation of sale directly was not got entered and sanctioned by producing Khuda Bakhsh before the Revenue Officer at the relevant time."

10. In the circumstances discussed above, it was rightly held by the Courts f below that the appellant had failed to establish that he was owner in the estate at the relevant time. Hence, finding no misreading of evidence or any l lacuna/infirmity in the impugned judgment, we dismiss the appeal. However, 1 the parties are left to bear their own costs. M.B.A./M-340/S Appeal dismissed.