1998 PLP 808 (CLC)

2. This suit was contested tooth and nail by the defendant and the parties were put to as many as five issues including Issue No.2 which runs as under: "

2. Whether the plaintiff has got better right of pre‑emption as against the defendant/OPP?"

3. The plaintiff, then, proceeded to lead evidence on these issues. Muhammad Asghar Patwari Halqa Dongian was examined as P. W.1 on '3‑10‑1973. On 11‑3‑1974, however, the plaintiff moved an application for amendment of his plaint in order to claim that he was not only an owner and co‑sharer in the Khata but also in the Taraf and Patti. This application was also contested by the defendant but was finally accepted on 18‑9‑1974 and the plaintiff was allowed to amend his plaint on the payment of certain costs. The amended plaint was filed on 29‑10‑1974. A fresh written statement was also filed by the defendant on 3‑12‑1974. The remaining evidence of the parties was recorded on 14‑7‑1975. It consisted of the statement of Ch. Khurshid Anwar, Advocate counsel for the plaintiff who tendered certain documents in evidence. Asghar Ali defendant appeared as the only D.W. and his counsel Muhammad Yousaf, Advocate also tendered certain documents in his statement. It was thereafter that the statement of the plaintiff was recorded in affirmative as well as in rebuttal of the evidence produced by the defendant.

4. The learned Civil Judge, who was, then, seized of the matter, besides giving his findings on the other issues discussed the evidence of the parties and the arguments addressed at the Bar in detail on Issue No.2 and finally came to the conclusion that the plaintiff had failed to discharge the onus of this issue and to prove that he was possessed of a superior right of pre‑emption as against the defendant. Consequently he dismissed the plaintiff's suit with costs by means of his detailed judgment dated 13‑11‑1975.

5. Feeling aggrieved by this judgment and decree, Muhammad Sarwar plaintiff preferred an appeal. Asghar Ali died during the pendency of the appeal and his L.Rs. were, therefore, brought on record and an amended memo. of appeal was filed.

6. It was only on Issue No.2 that the parties confined their arguments. The learned Additional District Judge, who was, then, seized of the matter, did not agree with the learned counsel for the respondent that the plaintiff/appellant had failed to establish that he was an owner in the Taraf and Patti and relying on Exh.P‑4 and Exh.P‑5 which are the abstracts from the Jamabandi for the year 1967‑68 and in which Taraf Dudhial and Patti Abdullah are mentioned on the top against Mahala Dongian, came to the conclusion that the plaintiff/respondent had a superior right of pre‑emption and that the defendant/respondent had failed to produce some evidence to controvert the averments or to negate the material which was on record in order to show that the Taraf and Patti mentioned in the Revenue Record were not a sub‑division of the village. He, therefore, accepted the appeal, set aside the judgment and decree of learned trial Court and decreed the plaintiff's suit with costs vide his judgment dated 21‑11‑1982. This judgment and decree of the Appellate Court have been challenged by the L.Rs. of the defendant through this revision petition.

7. I have today heard the learned counsel for the parties and have carefully considered the evidence on record. It was first of all in Ram Partap v. Kishan Singh (AIR 1937 Lahore 32) that the question regarding sub‑division was considered and it was held that for Pattis to be distinct sub‑divisions, they must be distinct entities, having nothing in common between them, each having homogeneity of area or descent. This view was followed and further elaborated in Gul Muhammad and others v. Sadar‑ud‑Din and others (PLD 1951 Lahore 437) and it was observed as under: "The mere word 'Patti', whether in the record or otherwise, does not by itself establish a 'sub‑division' of the village, to which reference is made in the Punjab Pre‑emption Act. A Patti may or may not be a 'sub‑division' and it shall be determined, on the history of the village, the homogeneity of area or of descent. The Legislature has nowhere laid down, that the word 'Patti' should immediately be taken to mean a separate 'sub‑division'. It appears to have been used by way of illustration. Where a village is proved to have been divided into distinct and separate entities, be they known as Tarafs, Patinas or Pattis, each of the entities, shall be called a 'sub division' within the meaning of clause (c) of section 15 of Punjab Pre emption Act of 1913. " The same view was followed in a large number of subsequent reported cases such as Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171), Yaqoob Ali v. Ch. Muhammad Sultan (1988 SCMR 999), Muhammad Tufail and others v. Muhammad Ikhtiar Khan and others (1990 SCMR 1034) and finally in the Full Bench judgment of the Hon'ble Supreme Court of Pakistan Re: Mst. Rasul Bibi and others v. Sikandar Hayat and others (1993 SCMR 1336). The plaintiff merely placed reliance upon the entries in the Revenue Record which could hardly be accepted as sufficient to discharge the onus of proof placed on him; but failed to establish with any evidence worth the name that he was owner of the "Patti" in which the land in question was situate.

8. The learned counsel for the respondent/plaintiff had made a futile effort to show that the assertion of the plaintiff in this behalf as contained in his amended plaint was not specifically controverted by the defendant in his written statement and the simple denial was not sufficient and it, therefore, would follow that the plaintiff's assertion that he was the owner in Patti was impliedly admitted. I do not find any force in this contention. In fact, the plaintiff produced no affirmative evidence on this aspect of the case except placing on record abstracts from the Jamabandi wherein the names of the Taraf and Patti also find mention. It was specifically maintained by the defendant in his own statement that there was no defined Patti in the village. Muhammad Sarwar plaintiff did nothing to substantiate his claim in this behalf. Although he claimed that the land was situate in Taraf Dudhial but had no knowledge with regard to Patti. He, then, claimed that he was the owner in Patti and Taraf while the defendant was not. On being cross‑examined, he stated that there were three Pattis in the village but he did not know their names nor did he know as to how many Tarafs were there in that village. This evidence was not at all sufficient to discharge the onus of Issue No. 2 and the same was rightly answered against the plaintiff/respondent by the learned Civil Judge. The finding of the learned Additional District Judge cannot sustain and is. accordingly set aside. The result is that I accept this revision petition, set aside the impugned judgment and decree of the learned lower Appellate Court and upholding the finding of learned Civil Judge on Issue No.2 dismiss the plaintiff's suit. Parties are, however, left to bear their own costs regard being had to the peculiar facts and circumstances of the case. A.A./I‑42/1 Revision accepted