2001 PLP 2012 (MLD)

4. Learned counsel for the appellants in support of the appeal made the following submissions (1) That the respondent/plaintiff Mst. Zainab Bibi failed to prove that she was mother of vendor Abdul Aziz to claim superior right of pre‑empt n In the title of the plaint she described herself as Noor Muhammad whereas Aziz Ahmad vendor was shown as son of Nazir Ahmad in para. two of the plaint. In the plaint there is no explanation that she at any stage married Nazir Ahmad after the death or divorce of Noor Muhammad and Aziz Ahmad vendor was son from the second wedlock. The plea was incomplete and is fatal to her case. Reliance was placed on the law laid down in Ghaus Rakhsh v. Chief Election Commissioner of Pakistan (PLD 1969 Karachi 662). (2) That the best evidence to prove the relationship of the plaintiff Mst. Zainab Bibi with vendor Aziz Ahmad was herself but she never appeared in support of this plea during the trial. The failure of the plaintiff to appear merits an adverse presumption. In support of this contention learned counsel relied on Feroz Khan and others v. Mst. Waziran Bibi (1987 SCMR 1647). (3) That the appearance of P.W.3/8 Aziz Ahmad is of no avail to the plaintiff on the question of relationship as the question whether she gave birth to him or not could best be answered by her and not Abdul Aziz. (4) That having closed affirmative evidence on 17‑7‑1978 the respondent‑plaintiff could not produce D.W.4/8 either in affirmative or in rebuttal. Reliance is placed on Al‑Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494). (5) That to prove that Mst. Zaiab Bibi was mother of Aziz Ahmad, vendor neither any birth certificate was produced nor Nikahnama evidencing Mst. Zainab Bibi's Nikah with Nazir Ahmad, in absence of which no presumption could be drawn in her favour with regard to Issue No. 1.

5. Learned counsel for the respondent/plaintiff Mst. Zainab Bibi, on the other hand, supported the impugned judgment and decree and submitted as under:‑‑ (i) That the appellants/defendants never challenged the relationship of Mst. Zainab Bibi with Abdul Aziz, vendor either in the written statement or by leading evidence. (ii) That the question whether Abdul Aziz, vendor was son of Mst. Zainab Bibi is a question of fact which cannot be re‑opened in regular second appeal.

6. Heard.

7. Neither before the learned trial court nor before the learned 1st Appellate Court any one appeared on behalf of the‑rival pre‑emptors to pursue their case. In fact the observation of the learned 1st Appellate Court was that Ali Muhammad etc., did not deposit the pre‑emption money and they m fact withdrew 1/5th of the pre‑emption amount. They did not even challenge the judgment and decree passed in favour of Mst. Zinab Bibi. They are, therefore, proceeded ex parte.

8. The learned trial Court decreed the suit in favour of Mst. Zainab Bibi plaintiff on the basis of its finding primarily on Issue No. l and the reasoning given is as under:‑‑ "In support of her case on this issue she has examined D.W.2/8 Mehr Abdul Hameed, Advocate, D.W.3/8 Aziz Ahmad, vendor, D.W. 4/8 Mehr. Abdul Qadir.

It was revealed that Mst. Zainab Bibi was married with vendor's father who had died subsequently she married with vendor's uncle.‑ This finding was affirmed by the learned 1st Appellate Court and it was held as under: ‑‑ Aziz‑Ahmad, vendor appeared as D.W.3/8 and he stated on oath that Mst. Zainab Bibi, pre‑emptor was his real mother. This assertion in the statements of these two witnesses of the pre‑emptor was not challenged by the vendee/defendants in cross‑examination. They only confined their cross‑examination on the point of collusion in filing the suit and the price paid. Mehr Abdul Qadir appeared as D.W. 4/8 as attorney of the pre‑emptor. He stated that the pre -emptor was ill and she could not come to the Courts to depose. He deposed with regard to relationship of the vendor with the prey emptor and stated that they were real sons of mother inter se. Even his assertion on this point was not challenged during the cross-examination by the appellants/defendants.

9. Both the Courts below by relying on the evidence of D.W.2/8, D.W.3/8 and D.W.4/8 on Issue No.l have fallen in error as the best evidence on the relationship of Mst. Zainab Bibi with the vendor Abdul Aziz was Mst. Zainab Bibi herself. Her non‑appearance would raise against the plaintiff. In Feroz Khan and others v. Mst. Waziran Bibi (1987 SCMR 1647) the fact of non‑appearance of the plaintiff as their own witnesses particularly on question of relationship was commented upon and at page 1648 it was held as under:‑‑ "In the circumstances the High Court was justified in drawing an adverse inference against Adalat Khan and Feroz Khan for not appearing in the witness‑box in support of their assertions of fraud and non‑payment of consideration and thus offer themselves for cross‑examination of the opposite side. It is unnecessary to comment upon the reported cases cited by the petitioners as, on facts, they can be easily distinguished from the one before us. ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ This view was reiterated in Muhammad Naveed and others v. Ghulam Muhammad and others (1994 SCMR 559).

10. The statement of D.W.4/8 Mehr Abdul Qasir as the alleged attorney of Mst. Zainab Bibi was not legal evidence which could be considered and relied upon firstly because no power of attorney was placed on record to show that he validly represented Mst. Zainab Bibi, secondly it is not denied that the plaintiff had closed her affirmative evidence on 17‑7‑1978 and D.W.4/8 was produced on 30‑3‑1981 which is not tenable in law and is against the spirit of Order XVIII, Rules 1 and 3, C.P.C. In Al‑Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1979 CLC 494), it was observed at page 497 as under:‑‑ If the plaintiff therefore falls to prove any of the above issues by affirmative evidence there will be nothing required to be enquired into the matter. Since the plaintiff had to prove the above issues, he had to begin the evidence, and, in fact, had begun the same, but before completing the whole of the evidence in the affirmative, part of it was sought to be produced after the evidence of petitioner defendant by reserving the right. As already pointed out above, the conjunctive reading of rules 1, 2 and 3 of Order XVIII, C.P.C., clearly shows that where the onus of proving some of the issues lies on the plaintiff, it is the plaintiff who has to begin the evidence on such issues and conclude the same thereon and may reserve evidence on such issues only the onus of proving of which lies on the defendant. This view was reitered in yet another judgment reported in Murid Hussain v. Muhammad Lai (1987 CL 101).

10. The observation of both the Courts below that the testimony of D.W.2/8 and D.W.3/8 qua the relationship was not challenged in cross- examination is against the record as both these witnesses were specifically suggested that Aziz Ahmad Vendor was son of Mst. Nooran Mai and not Mst. Zainab Bibi. The credibility of D.W 3/8 Aziz Ahmad who claimed to be the son of Mst. Zainab Bibi stood shaken when he could not tell even the approximate age of Mst. Zainab Bibi. A person who claimed to be the son of a lady about whose age he could not say a word could not be a credited with reliance.

11. There is force in the contention of the learned counsel for the appellants that the plaintiff Mst. Zamab Bibi claims to be mother of vendor Aziz Ahmad was inconsistent inasmuch as on the first page of the plaint she is described as Mst. Zainab Bibi wife of Noor Muhammad whereas, in para. l of the same plaint Aziz Ahmad, the vendor is shown as son of Nazir Ahmad. There is no explanation in the plaint as to how she became the wife of Aziz Ahmad. This inconsistent plea is not in consonance with the mandate B of Order, VI, Rule 2, C.P.C. In Ghaus Bakhsh v. Chief Election Commissioner of Pakistan (PLD 1969 Karachi 662), relying on the precedent case‑law it was observed as under at page 679:‑‑ "The principle :hat a plea should be complete is expressed in Order VI, Rule, 2, C.P.C. as follows: 'Every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleadings relies for his claim or defense, as the case may be..,. "the words underlined" by us should be noted. It may also be noted that an incomplete plea is much more objectionable than an imprecise plea, because, as pointed out by Sect, L.J. in Brook v. Adan Press Ltd. (1936) 1 KB 712. 'The word 'material' means necessary for the purpose of formulating a complete cause of action.' Incompleteness of a plea may be fatal to it, because it cannot be made whole by leading evidence of its missing parts. Siddiq Mahomed Shah v.' Mst. Saran and others (AIR 1930 PC 57(1)) and Adsumilli Gopalkrishnayya Garu v. Province of Madras (AIR 1947 PC 132) Sir Gilbert Stone and S.R. Iyer, Authors of the valuable book called 'Pleadings,' have brought out the distinction at page 116 (1942 Edition) as follows:‑‑ "If a material fact is omitted it may cost a party his whole case."

12. Both the Courts below by relying on an incomplete and in consistent plea contained in the plaint of Mst. Zainab Bibi as also on D.W.4/8 Mehr Abdul Qadir who appeared to support affirmative evidence have arrived at a finding of fact which is vitiated by error 'of law and can be interfered with in a regular second appeal. The evidence which constitutes fundamental basis of the findings given was not legal evidence to have been considered.

13. There is yet another aspect of the matter. The appellants who are small landowners who purchased the suit land about more than 20 years ago. It may not be in consonance with the canons of equity to uproot them at this stage when even the law of pre‑emption has undergone a sea change.

14. For what has been discussed above, this appeal is allowed, the judgment and decree of the learned trial Court dated 23‑4‑1985 as also the p judgment and decree of learned 1st Appellate Court dated 5‑1‑1989 are hereby set aside and the suit is dismissed. There shall be, however, no order as to cost. Q.M.H./M.A.K./F‑53/L Appeal allowed