P L D 1990 Supreme Court 972 (PLP)

5. A Revision was preferred against this order of the. Additional Commissioner to the Member, Board of Revenue, who, it appears, by an order dated 13‑10‑1973 remanded the case to the Collector for decision afresh. However, on a Review Petition having been filed, the same was allowed on. 22‑3‑1974 with the following operative order:

‑ "Lastly the issue now appears to be whether the decree related to `Adna or Ala Malkiat'. This is a question of interpretation of the contents of decree and has nothing to do with the rectification of clerical mistake. I have therefore, no option but to set aside the impugned order. It means that Review Petition No.12/73‑74 is accepted and the impugned order is set aside, also in result the order of Addl. Commissioner (Cons.) dated 13‑6‑1973 is upheld." The order of the Additional Commissioner dated 13‑6‑1973 as upheld by the Member, Board of Revenue, in review was given effect to by mutation No.1305.

6. In this factual background each of the appellants filed a separate suit for declaration and perpetual injunction claiming to be the owner of 79 Kanals of land out of 636 Kanals 1 Marla of Khata No.268/266 (formerly bearing No.45) as Malkiat Adna and they challenged the Mutation No.1305 made in favour of the respondent. (In the plaint the appellants of each case have claimed 110 Kanals 16 Marlas each). It was averred that the entire land sold by Ram Singh was pre empted but the respondent did not allow his name to be deleted from the ownership column of the Jamabandi. The suit was contested by the respondent on the ground that the sale made by Ram Singh in favour of the respondent had been in respect of 7,274 Kanals 5 Marlas, 636 Kanals 1 Marla being Adna Malkiat and 6,638 Kanals 4 Marlas being Aala Malkiat, but the decree of Hussain Bakhsh did not relate to 636 Kanals 1 Marla of Adna Malkiat and the same remained in his ownership and possession. It was also stated that Hussain Bakhsh filed suit in respect of 6,038 kanals and 4 marlas, the remaining 636 kanals 1 marla belonged to the respondent. An alternate plea was also taken that the respondent had become owner by way of adverse possession. On the pleadings of the parties 17 issues were framed.

7. The main contest centred round Issues No.12 to 14 which relate to the nature, extent, validity and proper execution of the pre‑emption decree obtained by Hussain Bakhsh. The Civil Judge decided these issues as hereunder:‑‑ "The decree passed in favour of Hussain Bakhsh was in respect of the land measuring 6,638 Kanals 4 Marlas. The mutation in compliance to the decree was Mutation No.263. With the sanctioning of Mutation No.263, the decree was satisfied and the other mutation could not be sanctioned so long as there was no direction from the Court to enter a new mutation as some land was left out of the decree passed in favour of Hussain Bakhsh Under the above circumstances I have come to the conclusion that Major Ram Singh had sold away the property in favour of the defendant vide the registered deed on 28‑4‑1943. The Mutations No.214 and 217 were rightly sanctioned in favour of the defendant. Thereafter Hussain Bakhsh pre‑empted the sale and the suit was decreed. The decree was in respect of the land measuring 6,638 Kanals 4 Marlas while Adna Malkiat was excluded from it. The Mutation No.263, was rightly sanctioned in favour of Hussain Bakhsh while the Mutation No.276 was wrongly sanctioned in his favour. The plaintiffs have failed to prove the Mutation No.1304 dated 10‑8‑1973 which is illegal in any way. Hence they have failed to prove that they are the owners in possession of the suit land. All these issues are decided against them:" The suits of the appellants were all dismissed on these findings on merits.

8. On appeal the Additional District Judge gave a different reason for coming to the same conclusion and his conclusions are as hereunder:‑

"The sale, according to the sale‑deed purports to be of the land. The parties are agreed that the words so used covered the rights of Aala Malkiat as well as the rights of Adna Malkiat. In the plaint of the pre emption suit, however, these words were not mentioned; and the suit purports to have been brought only for possession of the land in question along with the rights of Shamilat etc. The moot point before me is whether the rights of "Shamilat etc." include the rights of Adna Malkiat; and my finding is in the negative, because the rights of Adna Malkiat are of a special nature and ought to have found a specific mention, if their sale was intended to be pre‑empted. In these circumstances, I confirm the view of the learned lower Court that the suit of pre‑emption was instituted, but it covered only the rights of Aala Malkiat; and that the suit was decreed only to the said extent as is further evidenced by the copy of the judgment and decree (Ex.P.21 and P.3 respectively):' The appeals were dismissed on this finding.

9. In Regular Second Appeal the High Court affirmed the finding but on a different reasoning as would appear from the following:‑ "The question whether the land sold included both Adna and Aala proprietary rights has never been disputed by any of the parties and I need not go into it.

It can thus safely be said that the suit to exercise the right of pre‑emption over 6,638 Kanals 4 Marlas without specifically including Adna Malkiat of 636 Kanals 1 Marla did not relate to that malkiat: The learned District Judge was, therefore, justified in holding that the pre‑emption suit, so far as the land in dispute is concerned, covered the rights of Aala Malkiat alone and the same was decreed only' to that extent. The question whether the land in suit comprised in the pre‑emption decree related only to Ala malkiat is one of fact and having been concurrently decided by both the Courts below cannot be interfered with, particularly where no material misreading of evidence has been made out. Issues 14 to 16 have rightly been answered against the appellants."

10. Ch. Khurshid Ahmad, Advocate, the learned counsel for the appellants has taken us through the original sale‑deed and the pre‑emption suit to demonstrate and prove that neither the sale‑deed mentions nor does the pre emption suit/plaint, the Adna Malik's interest in the property sold. The pre emption suits had been instituted by reference to the registered sale‑deed and the entire sale was pre‑empted. Therefore, according to the learned counsel, the Courts were not justified in holding that though Adna Malik was not expressly mentioned in the registered tale‑deed its sale took place but its non‑mention in the plaint reduced the claim or made the suit one of partial pre‑emption. He has also referred to the decree, the two mutations consequently sanctioned and the execution of the decree to establish that in fact the whole of the property sold had been pre‑empted and the decree of pre‑emption properly and fully executed. If thereafter, the name of the respondent persisted in the Revenue Record it was by inadvertence and the same could be corrected. Even if it be not corrected as the title of the predecessor‑in‑interest of the appellants rested on pre‑emption decree and not on either mutation proceedings or entries in the Revenue Record, the Court's judgment had in any case to be recognised and given full effect as against the entries of the Revenue Record irrespective of what the Revenue Officers understood of the decree and did with the decree.

11. Mr.Bashir Ahmad Ansari, Advocate, the learned counsel for the contesting respondent in the first place contended that the very suits of the appellants were incompetent because under Martial Law Regulation 64, Aala Malkiat stood abolished and Adna Maliks have become owner and as the appellants enjoyed no interest as Adna Malik, they had no interest in the property at all. His effort was to show that the pre‑emption decree related to only a part of the property sold by registered deed and Adna Malkiat was excluded from it. He has referred to concurrent finding of three courts on fact such as to exclude the jurisdiction of the High Court or of this Court interfering with it in Second Appeal or Appeal arising out of it.

12. At the conclusion of the hearing we found that the order of the Additional Commissioner dated 13‑6‑1973 was not on the record and it had an important bearing on the entire proceedings. We directed the parties to file an attested copy of it and both the parties have filed a copy of it which has been utilised for determining and deciding the questions raised in these appeals.

13. There arc certain features of these appeals which must be noted. The first is that the main controversy relates to the period prior to the enforcement of the Martial Law Regulation

64. The controversy relates to the nature and extent B of the pre‑emption decree. If it is co‑extensive with that of the sale‑deed then the plaintiffs were entitled to succeed leaving the Martial Law Regulation to take its own course 6n their rights after its enforcement. The question to be examined was whether the Revenue Records correctly reflected the decree of the Civil Court in respect of the suit property. In that sense it was not the interest of the appellants which was in issue but that of their predecessor‑in‑interest.

14. Another fact to be noted is that the pre‑emption suit was contested by the respondent and the pre‑emptor claimed a superior right of pre‑emption on the ground of being both Aala Malik and Adna Malik in the estate and claimed that the vendee was an utter stranger. The ground which the respondent is invoking now and all the Courts have upheld would imply that the pre‑emption suit was bad for partial pre‑emption as the entire property was not being sought C to be pre‑empted though price for the entire property was being paid under the decree. A ground which was available to the respondent for defeating the pre emption claim of the predecessor‑in‑interest of the appellants and was not utilised and invoked, cannot now be made a ground for defeating the claim of the successors‑in‑interest as a successful pre‑emptor as against him. However, as this specific ground was not pleaded at any stage it cannot be made the basis of decision.

15. The third fact to be noted is that it is not finding of fact which is in issue. The High Court was in complete error about it. The question before the Courts was one of construction of the pleadings and the decree of the Court. It was whether the plaint included the whole of the suit property as contained in the sale‑deed or a part of it and whether the decree passed related to the full or a portion of it. Construction of such a foundation or title documents and also the legal effect of such documents are not questions of fact but pure questions of law. p It is for this reason that one finds all the three Courts giving different reasons and interpreting these documents differently for arriving at the same conclusion. The operative parts of the judgments of all the three Courts have been reproduced and they show that all of them concede that though Adna Malkiat as such is not specifically mentioned in the sale‑deed, it was included in it, but then proceed to hold that its omission from the plaint, even after mentioning the registered deed, amounted to its being abandoned. The first appellate Court held that by adding rights in the Shamilat not something more was claimed over and above sale‑deed but something in the nature of Adna Malkiat was excluded from the pre‑emption suit. The High Court admitting that sale‑deed did not require specific inclusion of Adna Malkiat over 636 kanals 1 marla held that it should have been specifically mentioned in the plaint of the pre‑emption suit.

16. The confusion from which the respondent suffered for a time is apparent from the fact that at one stage the case set out was that Ram Singh was owner of 7,274 Kanals 5 Marlas out of which he was Adna Malik of 636 Kanals 1 Marla and that the respondent had purchased the entire 7,274 Kanals 5 Marlas and that Hussain Bakhsh, the predecessor‑in‑interest of the plaintiff had pre‑empted only 6,638 Kanals 4 Marlas leaving with him and excluding from the pre‑emption suit 636 kanals 1 marla. But as the litigation advanced and during the course of the arguments it was admitted that though the ownership of Ram Singh extended to more areas, the purchase was confined to Aala Malkiat of 6,638 Kanals 4 Marlas out of which over 636 kanals 1 marla, the Adna Malkiat rights were also purchased from the vendor.

17. Taking up the crucial issue No.12 with regard to the extent of property covered by the pre‑emption suit, it is quite clear that the pre‑emption claim sought to be enforced was made by reference to the registered sale‑deed. Admittedly the registered sale‑deed included both, the Aala Malkiat as well as the Adna Malkiat. Such a reference to the registered deed had the effect of incorporating the whole of the document in the plaint. There being no conditions, no words of qualification or limitation governing such incorporation by reference, the incorporation was of the entire contents thereof. Sir Roland Burrows, K.C. on page 49 of `Interpretation of Documents' (Second edition) mentions this feature in the following words:‑ The contents or part of the contents of another document may be incorporated by reference, and in such cases the other document, so far as it is incorporated, is read with the document under consideration:

The trial Court gave no reason for reading exclusion of a part of the subject -matter from the suit. The first appellate Court referred to the recital reproduced in the vernacular above which was additional to the Registered deed for inferring exclusion. How could those additional words imply reduction in the claim is not clear. The High Court did not touch it considering it a question of fact. The defendant too in the earlier suit, did not object to the suit being bad and incompetent for partial pre‑emption. All the Courts have held that though Adna Malkiat was not mentioned specifically in the Registered deed but it was included in it. Nevertheless, the Courts ignoring the incorporation of the registered sale deed by reference inferred that as in the suit Adna Malkiat was not mentioned, it was not the subject‑matter of suit. This is inconsistent reasoning, self- contradictory and unsustainable.

18. The High Court held and the learned counsel for the respondent supports the conclusion, that there was a concurrent finding of fact immune from challenge in second appeal even though erroneous. Where the nature of the title is to be ascertained by reference to foundational documents (in this case the pleadings in the pre‑emption suit and the decree therein), then the question is 1 one of law and not of fact. For example, in Secretary of State v. G.Krishna Rao AIR (32) 1945 Privy Council 165, the Privy Council held as hereunder:‑ "What has to be decided is the nature of the respondent's title, which in their opinion involves a question of law. There is also the question as to whether the draft cowle upon which, as already observed, both the lower Courts largely based their judgments constituted any evidence of the conditions on which the original grant was made, and that again is a matter of law." In Sir Chunilal v. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. (AIR 1962 SC 1314‑‑ From Bombay) the Indian Supreme Court held as under:‑ "Applying these tests it would be clear that the question involved in this appeal, that is, the construction of the Managing Agency agreement is not only one of law but also it is neither simple nor free from doubt:" In Bhusawal Borough Municipality v. Amalgamated Electricity Co. Ltd., Bhusawal and another A I R 1966 S C 1652 --From Bombay) the Indian Supreme Court held as hereunder:‑ "In our opinion the trial Court and the District Court had wholly misconstrued this document which is not merely of evidentiary value but is one upon which the claim of the respondent No.9 for the surcharge is based. Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it." Finally, in Jades Gopal Chakravarty (dead) after him his legal representatives v. Panama Bowlike and others (AIR 1978 SC 1329 ‑ From Calcutta) the Indian Supreme Court held as under:‑ "The existence or non‑existence of both these primary facts depends on a construction of the basic documents: Deed of Trust (Ex.1), Deeds Ex.3 and Ex.2. Construction of these basic documents, which go to the root of the matter, is a question of law and could be gone into in second appeal. Our only regret is that the High Court did not go into the question far enough."

19. It is thus clear that the entire case of the parties depended on the construction of pleadings of the parties and the decree in the earlier pre‑emption suit for ascertaining the extent of property for which pre‑emption claim was made and had succeeded. It is also clear that all that was sold by registered deed was successfully pre‑empted leaving nothing with the contesting respondents out of the purchased property. What the Revenue Officers have been doing in giving effect to Court's adjudication in the matter is of no consequence in view of decrees of Civil Courts. These appeals are, therefore, allowed with costs throughout. The judgments and decrees of all the three Courts are set aside and A the claim of the plaintiff is decreed.