1986 PLP 1079 (CLC)

Date of hearing: 11th February, 1986. This order shall dispose of three appeals, R.S.As. 384, 385 and 386 of 1980 which arise out of substantially identical facts and also raise a common questions of law. Facts are: On 24‑6‑1974, Mst. Hajran Begum, widow, Shamaun Bahadur; Rohail Bahadur sons of Falak Sher, sold property measuring 35 Kanals 10 Marlas for Rs.15,530 to Ahmed Shah, Noor Shah, Abdul Sattar and Noor Ahmad. Mst. Khurshid Begum, daughter of Falak Sher, also, sold her property, (8 Kanals 16 Marlas) for Rs.3,830 to the same set of vendees on 24‑6‑1976, vide sale Mutation No.

80. Yet, through another mutation, Anwar Sher alias Balakh Sher, sold his property, measuring 31 Kanals 14 Marlas, to the same vendees, vide Mutation No. 78 sanctioned on 24‑6‑1974. Munawar Begum, as heir and owner of the estate, pre‑empted the sales and brought three separate pre‑emption suits against the vendees, in the Court of Civil Judge, Pakpattan. Suits were instituted on 22‑4‑1975. Vendees contested the suits. In written statements, submitted by them, it was pleaded that the plaint for purposes of court‑fee and jurisdiction had not been property assessed and in the result requisite amount of court‑fee payable, was not affixed; that the suit property was offered for sale to the plaintiff who had refused to purchase it and thus, had waived her pre‑emption rights; that the suit was Benami and was instituted in the interests and for the benefit of Allah Ditta son of Ghulab Ali. On merits right to bring pre‑emption suits was denied. As regards the price paid for the suit property, vendees averred that they had purchased the same for the sale price given in the respective sale mutations. Since defence offered was identical, the Court in view of the respective pleading of the parties, raised following issues for trial:‑ (1) Has the plaintiff got superior pre‑emptive right qua the defendant‑vendee? (O.P.) (2) Has the plaintiff waived her right? (O.D.) (3) Were Rs.13,890 fixed in good faith or paid as sale price of the suit land? (O. D . ) (4) What was the market price? (

0. Parties). (5) Is the suit 'Benami' for the benefit of one Allah Ditta? (O.D.) (6) Is the suit valuation for the purposes of court‑fee and jurisdiction incorrect? (O.D.). (7) Relief. Except for the price paid for the suit property in each suit, there was no difference in the issue formulated. Plaintiff, to prove her superior right, relied on copy of pedigree table EXh.P.l, report 'Roznamcha Waqiati' Exh.P.2, copy of Jamabandi Exh.P.3, copy of mutation Exh.P.4 and closed her affirmative evidence. However, she reserved her right to appear both in affirmative as well as in rebuttal after the defence was closed. As against this, Ahmed Shah, defendant appeared and deposed that suit property was purchased at the flat rate of Rs.3,500 per Acre. It was further deposed that plaintiff was asked whether she wanted to sell her own property. According to witness, at first, she expressed her readiness but then declined. Witness further deposed that the plaintiff had not expressed her desire to purchase the suit property. It is also available in his statement that pre‑emptor brought suits for the benefit of Allah Ditta and was herself a mere 'Benamidar'. To the similar effect, was the statement of Ghulam Rasool, D.W.2 and Rohail Bahadur, D.W.3. However, the pre‑emptor when she appeared as P.W.1, denied that she had instituted pre‑emption suits either at the instance of or for the benefit of the aforesaid Allah Ditta. She claimed that she had pre‑empted the sale in her own rights. On the consideration of aforenoted material, learned Judge of trial Court found in favour of Munawar Begum and decreed her suits. It was found that plaintiff had superior right to get the suit property. Issues Nos. 2 and 5 were answered in the negative and the Court held that the pre‑emptor had neither waived her right nor acted 'Benami'. Sale price as given in the mutations was conceded by the pre‑emptor. Result of issue No.6 also went against the vendee appellants. Against the judgments and decrees of the trial Court, dated 19‑5‑1977, three separate appeals were preferred before District Judge, Sahiwal. Appeals were, however, heard by learned Additional District Judge, who after hearing arguments and examination of the record did not see any merit in these appeals and accordingly dismissed the same with costs on 13‑4‑1980. Order of Additional District Judge shows that the appellants, before him disputed findings of the trial Judge of issue No. 5 only. Decisions on the rest of the issues as the tenor of the judgment shows, were not contended. These appeals were admitted on 29‑4‑1980 and have come up before me today for actual hearing in presence of the counsel for the parties Counsel have been heard at length and with their assistance, I have also looked into the trial Court's record. At the outset, it may be noticed that, though the pre‑emptor and the vendees were same in all the suits, which also raised common questions of fact and law, yet suits were not consolidated for a joint trial and each suit proceeded to its trial independently and evidence was also recorded separately. Therefore, objection raised in ground 'H' becomes meaningless. It was contended for the appellants that the respondent‑ pre‑emptor had brought pre‑emption suits 'Benami' for Allah Ditta and had no personal interest to prefer the pre‑emption suits. She was just a nominal figure and the real beneficiary who was ultimately to gain in case suits were decreed in favour of the pre‑emptor, was tae aforesaid Allah Ditta. Counsel contended that the Courts of fact have not properly appreciated oral evidence led to support 'Benami' nature of the suits and in the result of the gross mis-appreciation of evidence, Courts were led to erroneous conclusions. Counsel also invited my attention to an application put in before the trial Court to show that the thumb- impressions appearing on the plaints in the pre‑emption suits were not those of the pre‑emptor and urged that the learned trial Court was erroneous in disallowing the application. Complaint was also made to show that correct amount of court‑fee had not been paid on the plaints. Pre‑emptor had not provided 'Jhar Padawar' to show the exact amount of net profits accruing from the suit property in the relevant year. This deliberate omission on the part of the pre‑emptor had made it difficult for the Court to record a correct finding on issue No.

6. Counsel pointed out that in these circumstances, Court was bound to abandoned in first appeal, held, could not be reagitated in second appeal invoke its powers under section 9 of the Court Fees Act, order inquiry into the net profits and then determine the exact amount of court‑fee payable. Mr. Abdul Sattar Saleemi, Advocate, in reply defended the orders of the Courts below and submitted that when the appellants had themselves narrowed down the controversy before the first appellate Court and questioned decision on issue No.5 only, they could not be permitted to enlarge the scope of appeals and urge on those points also which had not been agitated before the appeal Court. He also argued that the Courts of fact were in agreement to hold that suits brought were not 'Benami' and the findings of fact reached by the Courts below, were not open for re‑examination in second appeals. Superior right was not denied parties are not in dispute on the issue of sale price also. In second appeals, only two points were seriously urged, first, was as to the waiver and second was Benami nature of the claims. Munawar Begum conceded in her evidence that Allah Ditta was her cousin. She was a 'Pardah'‑observing lady and had minor children and on some occasions, Allah Ditta helped her in prosecution of her claims. This was a forthright and straight forward frank concession and properly explained the presence of Allah Ditta on scene of the litigation. Much, therefore, did not turn on this point. It is not disputed that Allah Ditta was owner of the estate and if he was so minded, he could have, in his own right, brought pre emption suits to acquire suit property. Ahmad Shah, vendee, though owner of the estate, had joined strangers with him in, admittedly, indivisible sales, and had lost his right and had sunk to the level of the stranger. Therefore, if Allah Ditta had come up in a pre‑emption suit, vendees could not have successfully defended the sales in their favour. This was an important factor which was properly taken note of by the Courts below in answering the question whether pre‑emptor was acting Benami. Allegations of 'Benami' were controverted by the pre emptor in her statement on oath. Pre‑emption is that a plaintiff sues for his own benefit. The plea of suit being 'Benami' is one very easy to make but unless it could be established beyond reasonable doubt that the plaintiff was just a figurehead, and his sole purpose was to get the land for another person, his suit could not be dismissed. It was a necessary corollary of the personal aspect of the right of pre‑ ,q emption that a pre‑emptor can exercise the right himself alone and if he acts 'Benami' that is, that another person can and will on the plea that he is the real plaintiff be entitled to take from the pre‑emptor whatever may be decreed to him without regard to the willingness or. unwillingness of the pre‑emptor, he acts not as himself but has the other person and his suit would fail. When such a plea is raised, the Court shall require a very strict proof of the allegations and the mere fact that the pre‑emptor has been instigated by another person or that the funds were being supplied to him by the other person may not be held sufficient to prove 'Benami' nature of the suit. Therefore, before the suit could be dismissed on this score, it was necessary for the vendees to have established by the strictest evidence that the object of the pre‑emptor was really to secure the land for another person. View taken by me gets ample support 'from a decision of this Court in Lal Din v. Allah Ditta and others P L D 1967 Lah. 703, Ghulam Qadir v. Mst. Chattal 1983 C L C 2572. In my opinion, evidence brought on record was totally insufficient to hold that Munawar Begum acted 'Benami' for Allah Ditta and that she did not intend to exercise her pre‑emptive rights for her own benefit. Findings of the Courts below, therefore, cannot be disturbed. As regards question of court‑fee paid on .the plaint, suffice it to observe that onus probandi of issue No. 6 was on the vendee‑defendants. They had led no evidence to discharge the burden placed on them. No attempt was made by either party in the course of the trial to prove annual statement of net profits. Appellants accepted the amount of court‑fee affixed on the plaints by the pre‑emptor and paid the same amount when they preferred appeals before District Court and in this Court. Even otherwise as observed in Bahadar Shah and others v. Sharaf Major and others P L D 1967 Lah. 154, "ordinarily the statement in the plaint had to be accepted as correct unless it was proved to the contrary. It was, therefore, for the defendants to prove that the valuation of the suit was not correct". Applying afore noted rule of law, with which I find myself in respectful agreement, it could not be contended with success that issue of court‑fee was not properly resolved. Additionally, appellants in first appeal had not questioned findings except on issue No.5. In the circumstances, it may not apposite to allow them to reagiter the points which they had conscious` abandoned and not urged in the Courts below. In my opinion, Court; below have properly appreciated the evidence and also reached correct conclusions on issues raised before them. I see no reason to differ would accordingly, uphold the judgments and dismiss the appeals wits costs. A . A . Appeals dismissed