P L D 1975 Lahore 97 (PLP)

Haji Jan Muhammad and Mian Muhammad filed a suit for possession by pre-emption of 9/19th share of land measuring 3 kanals and 16 marlas detailed in the plaint sold by Karam Shah to the defendants. The defendants took up the plea that it was an exchange and not sale wherefore it was not subject to the law of pre-emption. They further denied that the plaintiffs had a right superior than theirs. The following four issues were framed:- (1) Whether the land in suit was in fact sold and the exchange is just fictitious now. O. P. P. (2) If issue No. 1 is in favour of the plaintiffs whether the right of pre-emption of the plaintiffs as compared to the vendees is superior. O. P. P. (3) If issue No. 1 is in favour of the plaintiffs what is the market value of the land in suit. O. P. P. (4) Relief. The parties entered into a compromise to the effect that Muhammad Khan be asked to make a statement on oath on the Holy Qur'an regarding the nature of the transaction and that they would be bound by it. Had Muhammad Khan done so the matter would have properly come to rest. He, however, declined to take the oath and stated that the land was acquired by exchange. Somehow or the other the learned Civil Judge came to the conclusion that this refusal of Muhammad Khan to take the oath that the land was acquired by exchange led to the inference that the land had, in fact, been acquired by sale. He found the market value of the land to be Rs. 100,8-12-0 and further that the right of pre-emption of the plaintiffs was superior to the defendants. He consequently decreed the suit on 16th February 1960. The defendants filed an appeal. The learned District Judge by his judgment and decree dated 22nd April 1960 came to the conclusion that since Muhammad Khan had refused to take the oath it was not open to the trial Court to have drawn an inference that this refusal proved that the land had, in fact, been sold. Hence this Second Appeal. The sole question is as to the effect of the refusal of Muhammad Khan to make a statement on oath. The law on this point is contained in section 11 of the Oaths Act which provides that the evidence given by a person on oath on an offer made by a party to be bound by it shall, as against the person who offered to be bound as aforesaid, be conclusive proof of the matter stated. This would he the east if the party or witness accepts the offer to make a statement on oath. If, however, he declines to do so, the provisions of section 12 come into play which lays down that in case of such refusal, he shall not be compelled to make it, but the Court shall record as part of the proceedings, the nature of the oath or affirmation proposed, the facts that he was asked whether he will make it, and that he refused it, together with any reason which he may assign for his refusal. In the present case, Muhammad Khan had refused to take the oath and, therefore, neither section 11 is attracted to the facts of the case nor can the refusal be taken as a substitute for proving that it was a sale and not an exchange. The learned District Judge, therefore, correctly came to the conclusion that the learned trial Court had not acted in conformity with law in deciding A issue No. 1 in favour of the plaintiffs. This Second Appeal is, therefore, dismissed with costs and the judgment and decree of the learned appellate Court is armed. K. B. A.????????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.