P L D 1990 Lahore 397 (PLP)

This second appeal by a vendee‑defendant against the trial Court's decree for possession of land through pre‑emption passed on 30‑11‑1985 in favour of the respondent and upheld in appeal below on 18‑2‑1989; is sought to be supported on two main grounds; namely, first, that his application for additional evidence being allowed to be adduced at the appellate stage has not been given adequate consideration in being rejected in the course of writing appellate judgment and, the second, that since there was a recital contained in the document of sale made on 20‑4‑1977 that possession had been delivered to him, therefore, suit brought on 17‑5‑1978 was barred by time.

2. Neither of the foregoing contentions has any substance because, as regards the first in Rule 27 of Order XLI of the C.P.C. entitlement of a party to an appeal to produce additional evidence stands clearly negated and there having not been made any wrongful refusal by the Trial Court to admit such an evidence, the request could be allowed by the appellate Court, in its discretion and for the reasons to be recorded, only if it may have required such evidence for being able to pronounce judgment and this occasion could arise only when the material available on the record had, first been gone into by the appellate Court. Thus, it is only preposterous to urge that the vendee's request for additional evidence deserved being considered before attending to the appeal itself. Moreover, even in a case coming under clause (a) of the Rule; discretion of the appellate Court, of course to be exercised judicially and not arbitrarily, has to be determinative of the request and no right of any party can possibly get involved in it. Order on tile point has been passed by learned District Judge judiciously, on the basis of admission contained in the written‑statement, the plea for revocation whereof has also been properly refused by him inasmuch as vendee could not be allowed to benefit from his own complicity in the so‑called misrepresentation about the sale‑ price in the sale‑deed and that too at a belated stage and after making admission thereabout in the written statement. So long as he did not first make out a proper case for being relieved of such an admission there could not arise any occasion for allowing either of his three inter‑dependent applications to enable production of evidence because admitted facts get excluded from the realm of proof and disnroof. Thus, the first‑mentioned contention is untenable.

3. As regards the other, relating to limitation, suffice it to say that the sale had been made through a deed registered on 17‑5‑1977 and the document referred to by the counsel for the appellant is a mere agreement to sell made on 20‑4‑1977 so that the recital made therein, even if accepted to be a correct representation satisfying the requirements with regard to nature of possession requisite for setting the law of limitation into motion, would not qualify it as the C one taken 'under the sale sought to be impeached' which undeniably came into existence a month later, on 17‑5‑1977 upon registration of the sale‑deed and this is the starting point of limitation under Article 10 of the Limitation Act for the pre‑emption suit brought against the vendee. Contention about limitation also fails. thus.

4. In passing, half‑hearted attempt has been made to urge that the plaintiff was acting Benami and was even stopped from exercising the right of pre -emption. These are two mutually destructive pleas and still they were sought to be urged on the premises that the pre‑emptor happens to be a son of the vendor, though grown up, yet, a minor. It was conceded that there was no statement or conduct amounting to some representation proved as capable of being attributed to him. But it was urged that he had remained present at the time of sale without evincing any interest in the transaction whereabout he did not put forward any claim at all. This cannot be accepted as a broad proposition of universal application that for the mere fact of being a dependant‑member of the family of a vendor, without something more, any one may become liable to be denied the exercise of the right of pre‑emption conferred by clause (b) of section 15 of the Punjab Pre emption Act, 1913 which has to therein get robbed of its utility despite its being recognised an indefeasible ground of superiority for the claim of pre‑emption, at the relevant time. It need not be emphasised that each case has to depend upon its own facts and there can well be cases in which dependants of vendors may legitimately get debarred from suing for pre‑emption on account of unambiguous conduct established or positive statements proved to have been made but the mere presence of a son of a vendor at the time of bargain of sale or execution (if sale‑deed by his father, just as a passive spectator, would not provide any basis for a plea of estoppel unless, of course, there be a duty laid by law to act in a particular manner have failed to act. in absence of such a requirement, mad where n C rilay by law, a prospective pre‑emptor has to be taken to be acting 'I within the limits of law to follow the Policy of wait and see before asserting his right in a suit to be able to get the property at the price which may happen to ultimately be settled between the vendor and vendee or, else, his interposing at any earlier stage may become a cause of raising the sale‑price. It will not be unreasonable to concede that no one can be expected to either himself become instrumental in raising of price which has to ultimately become his own liability for payment or be able to decide about purchasing any property without knowing the price that he may have to actually pay for it. In such a view of human conduct, question of waiver of right of pre‑emption at any time before settlement of price acceptable to the vendor and its being offered to the prospective pre‑emptor to be paid for getting the property, would simply not arise. Since there is no evidence led in this case with regard to any offer made to the plaintiff for sale being made to him for any definite amount offered to be paid by the vendee, therefore, plea of waiver had to be repulsed as being simply untenable. It has been rightly repelled below. Plea about the plaintiff acting as a mere figure‑head or benami in maintaining the suit, though not capable of being urged side by side with the admission that the plaintiff did in fact possess his own right of pre‑emption, which he had waived due to his passiveness; has to, a fortiori, fall to the ground on account of absence of any clear and cogent evidence to the effect that he was acting for someone else. This contention has to also fail thus.

5. Nothing more falls for determination in this second appeal.

6. No error of law or defect of procedure within the scope of section 100 of the C.P.C. has been pointed out to be involved in the judgments and decrees passed below. This second appeal is altogether devoid of substance and is, accordingly dismissed in limine. M.BA./M‑2092/L Appeal dismissed.