2017 PLP 296 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this civil revision the petitioners/ plaintiffs have challenged the judgment and decree dated 28.09.2000 passed by the learned District Judge, Layyah, whereby the appeal filed by the respondents/defendants was accepted, by way of which, the judgment and decree dated 15.07.1986 passed by the learned Senior Civil Judge, Layyah decreeing the suit for pre-emption filed by the petitioners-plaintiffs, were set aside.

2. The brief facts as leading to this civil revision are that the respondents/ defendants purchased the suit property through registered sale deed No.1585 registered on 21.04.1982. The suit to pre-empt the sale of said land was filed on 22.03.1983. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. The plaintiffs opted to produce Ex.P-1 schedule of produce and Ex.P-2 Khasra-girdawari for Rabee 1982 to Khareef 1982 and documents pertaining to Register Haqdaran Zamin 1970-71 as well as mutations and pedigree table as Ex.P-3 to Ex.P-18 and reserved the right of statement of plaintiffs as affirmative to record the same at the time of rebuttal evidence. The defendants produced oral as well as documentary evidence on 17.11.1985. One of the plaintiffs Mehboob Hussain appeared as PW-1 on 29.04.1986. Vide judgment and decree dated 15.07.1986 the suit was decreed by the learned trial Court. An appeal was preferred by the vendees-defendants before the learned first appellate Court, which was accepted vide judgment and decree 28.09.2000. Hence, this civil revision.

3. The petitioners/plaintiffs have filed an application, C.M. No. 2108 of 2015, for permission to produce some documents annexed with this petition as additional evidence.

4. Learned counsel for the petitioners-plaintiffs argues that before the learned first appellate Court issues Nos.1, 2, 4, 5, 6 and 7 were challenged by the vendees-defendants but the learned first appellate Court has only dilated upon issue No.7 and reversing the findings on this issue accepted the appeal, set aside the judgment and decree passed by the learned trial Court without commenting upon the findings on issues Nos.1, 2, 4, 5 and 6, therefore, it is in violation of Order XLI, Rule 31 of the C.P.C. Further that through Ex.D-8 it is evident that Mouza was under consolidation operation, therefore, mutation No.3352 of consolidation was passed on 25.01.1982; that mutation of distribution No.3353 was also passed on 25.01.1982, therefore, in both these mutations there is reference of Jamabandi for the year 1970-71 and as such the plaintiffs could produce Jamabandi for the year 1970-71 and it was not a defect which has been noted by the learned first appellate Court while non suiting the petitioners/plaintiffs. Learned counsel while referring the entries of copies of Jamabandies Ex.P-3 and Ex.P-4 as well as copies of mutations produced in evidence argues that the petitioners/plaintiffs were able to prove that they are having superior right of pre-emption. Further argues that a controversy was created that the suit was filed against Fida Hussain Shah as one of the defendants; that in the written statement and in the documents produced by the plaintiffs in shape of summons issued by the trial Court it is evident that actually the sale was in favour of Fida Hussain Shah, subsequently this controversy was introduced to damage the rights of petitioners-plaintiffs. Argues that the petitioners/plaintiffs have moved an application, CM-2108-C-2015, for permission to produce the documents annexed with this petition i.e. Jamabandi for the year 1982-83 for various Khatas, certified copy of registered sale deed as well as copies of summons and the applications moved before the learned trial Court and the order passed in the previous round of litigation in case C.R. No.106/98, as additional evidence, therefore, the acceptance of this application is necessary in the interest of justice. Lastly prays for acceptance of this civil revision.

5. On the other hand, learned counsel for the respondents/defendants argues that the sale of land is through registered sale deed registered on 21.04.1982, therefore, it was the responsibility of plaintiffs to prove their superior right of pre-emption by producing the revenue record of the year 1982-83 at the time of sale, at the time of filing of suit and at the time of passing of decree but they miserably failed to prove the same. Further argues that the argument of learned counsel for the petitioners/plaintiffs that learned first appellate Court has not decided issues Nos.1, 2, 4, 5 and 6, states that the present respondents, who were appellants before the learned first appellate Court, have not pressed these issues, therefore, the findings recorded by the learned trial Court will be confirmed and even today the respondents do not agitate against the findings upon these issues and only issue No.7 was pressed before the learned first appellate Court, which has been decided in favour of respondents while reversing the findings recorded by the learned trial Court. Argues that the findings on issue No.7 recorded by the learned first appellate Court are absolutely in accordance with law, therefore, this civil revision is not maintainable. Further argues that it is clear in the written statement as well as in the original sale deed that Nazar Hussain Shah purchased the suit property and not by Fida Hussain Shah, states that the tampering made dishonestly by the plaintiffs by making Nazar Hussain Shah as Fida Hussain Shah is visible in the written statement, whereas sale deed was got sealed before the learned trial Court, therefore, it remained intact and clearly Nazar Hussain Shah is mentioned as one of the vendees. Prays for dismissal of the civil revision.

6. I have heard the learned counsel for the parties at full length and also gone through the record minutely with their able assistance.

7. First of all, I deal with the application for permission to produce additional evidence. The principle for permission to produce additional evidence is that if the documents sought to be produced as additional evidence were not in access or knowledge of the party who wants to produce the same as additional evidence and further if the Court requires that the documents are necessary for coming to a just conclusion, nothing has been mentioned that how these documents were not in access or knowledge of the petitioners. Most of the documents they want to produce are the record of trial Court for which under the law the petitioners were required to annex along with this civil revision at the time of filing of the same in accordance with section 115 of the C.P.C. So far as production of certified copy of the sale deed is concerned, learned counsel has referred the correction made by Sub-Registrar in the name originally recorded as Nazar Hussain Shah, whereas same was recorded as Fida Hussain Shah. It is a copy from Bahi No.1 Book No. 649 where the impugned sale deed was recorded. This document is also not helpful when the original sale deed which was kept sealed with the file of case and is available on the file as Ex.D-10. So far as the application is concerned, I do not think that at this stage when the original suit was filed on 22.03.1983 and rebuttal evidence of the plaintiffs was completed on 09.04.1986 and subsequently at the appellate stage some additional evidence was also produced by the parties and this civil revision is pending before this Court for the last 15 years and yesterday this application was filed, which has been fixed for preliminary hearing for today. In this view of the matter, this application is not maintainable. It is hereby dismissed.

8. Now I come to issue No.7, which is as under:-

7. Whether the plaintiffs have superior right of pre-emption qua the vendees? OPP The plaintiffs have filed the suit for pre-emption to pre-empt the sale of land through registered sale deed in favour of vendees-defendants. It was their duty to prove the case pleaded by them that they have a superior right of pre-emption. The plaintiffs opted not to appear as a witness at the time of affirmative evidence. Only documentary evidence was produced in the statement of learned counsel for the plaintiffs. During the scrutiny of evidence I have noticed that Ex.P-5 the mutation of inheritance to show that Sohanra received property from the inheritance of his father is a Part-Patwar. This document is not per se admissible in evidence. Even otherwise I am of the considered view that when a plaintiff opts not to appear as his own witness at the time of affirmative evidence and reserves his right to appear as a witness at the time of rebuttal evidence, his evidence can be read in rebuttal only and not in affirmative evidence, if the statement recorded at the time of rebuttal evidence is read in his affirmative evidence, the other party will be prejudiced as the evidence when produced by the defendants, there were two parts of evidence, one part was affirmative evidence of defendants and the second part was rebuttal evidence produced by the plaintiffs. When the suit in hand was filed under Punjab Pre-emption Act, 1913, it was the primary duty of plaintiffs to prove their superior right of pre-emption pleaded by them by producing documentary evidence in shape of Jamabandi for the year 1982-83 and the mutations to connect that the plaintiffs received property from inheritance or through purchase. I am clear that the mutations, which are mostly of the years 1971 to 1974, do not prove that even if the property was transferred in favour of plaintiffs/petitioners they were still owner of their purchased property in the year 1982 at the time of sale of land in favour of vendees-defendants and further that at the time of filing of suit and at the time of decree, this could only have been established by producing Register Haqdaran Zamin (Jamabandi) at the time of sale of suit property, at the time of filing of suit and at the time of passing the decree. In this view of the matter, when the only witness from plaintiffs' side as I have noted supra appeared at the time of rebuttal evidence, therefore, his statement cannot be read in affirmative evidence, is sufficient to hold that the petitioners/plaintiffs failed to prove their superior right of pre-emption. Even otherwise learned first appellate Court has minutely discussed in detail the documentary evidence produced by the parties, there is no need to further dilate upon the same. I am unable to disagree with the findings on issue No.7 recorded by the learned first appellate Court.

9. So far as the controversy that whether Fida Hussain Shah was the purchaser or Nazar Hussain Shah. I have minutely scrutinized Ex.D-l0 the original sale deed, which clearly shows that Nazar Hussain Shah has been mentioned and the said sale deed was got sealed during the proceedings before the trial Court and by perusal of written statement filed by the vendees-defendants it is clear that Nazar Hussain Shah has been written and it has been tempered as Fida Hussain, as word ( ) is visible to have been made subsequently. In these circumstances, there is preliminary objection No.6 that suit is bad for partial pre-emption.

10. When the respondents have conceded that before the learned first appellate Court they have agitated against the findings on issue No.7 recorded by the learned trial Court, therefore, the findings on all other issues remain intact. Non recording of this fact is not fatal in these circumstances.

11. The crux of above discussion is that the petitioners/plaintiffs have miserably failed to show any illegality or material irregularity in the findings recorded by the learned first appellate Court. Therefore, this civil revision fails and the same stands dismissed. ZC/S-126/L Revision dismissed.