1989 PLP 3956 (MLD)

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan etc. P L D 1970 S C 139 and Kanwal Nain and another v. Fateh Khan and others P L D 1983 SC53re

1. Hakam Qureshi for Appellant. CA. Rehman for Respondent. Date of hearing: 21st May, 1989. This Regular Second Appeal arises from the judgment/decree, dated the 22nd of February, 1978, passed by the learned District Judge, Gujranwala, whereby the respondent‑vendee's appeal was accepted and the appellant‑pre emptor's suit was dismissed.

2. The land in question was sold by Ghulam Ahmad son of Muhammad Hussain on the 26th of May, 1970. The appellant brought the suit to pre‑empt it claiming himself to be the real 'bhanja' of the vendor and an owner in the estate. Later, however, he got his plaint amended to show that he was only a distant 'bhanja' of the vendor.

3. The respondent‑vendee contested the suit denying the appellant's aforementioned qualifications. The trial Court found that the appellant was an heir of the vendor and as such decreed the suit. The other qualification, of course was not proved. The respondent‑vendee preferred an appeal and was able to establish before the lower appellate Court that the pre‑emptor was not, as a matter of fact, 'bhanja' of the vendor. Consequently the appeal was accepted and the appellant's suit was dismissed. Aggrieved by it, the latter brought the present appeal.

4. The appellant made an application under Order XLI, Rule 27, C.P.C., for additional evidence to show that he was even agnatically connected with the vendor Ghulam Ahmad. The application was seriously opposed stating that there was no question of allowing the appellant any additional evidence m the second appeal and that too in, regard to a question of fact. Reliance was placed upon Wali Muhammad etc. v. Muhammad Bakhsh etc. I L R 1924 Vol. V Lah. 84 wherein additional evidence was disallowed on the ground that the relevant provision did not contemplate such evidence in second appeals.

5. Mr. Qureshi for the appellant submitted that additional evidence could be ruled out only on merits of each individual case and that practically it was left to the Court to consider if there was need to allow the same in order to dispense justice. Be that as it may, it was a suit for pre‑emption where the appellant‑pre emptor had to show rather extra vigilance to bring all possible material on the record in time in order to claim the land in preference to the vendee. Initially he relied upon the qualification of his being real 'bhanja' which expression later, he thought to be incorrect and got it amended to show himself only a distant 'bhanja'. 'Bhanja' as such is not included in the list of heirs as a female intervenes between him and the propositus. Ordinarily it is the agnatic descent, which is basis for heirship. It was not shown if the appellant's father Abdul Shakoor was somehow agnatically related to the vendor Ghulam Ahmad. Obviously he came from a different clan having no common descent with the vendor and being a son of such an outsider, he could not assert a better right against the vendee. Additional evidence as cursorily seen in the course of arguments would as well not suffice to establish the appellant's contention. Even otherwise it is not permissible in second appeals. The case cited above provided ample authority for disallowing the document sought to be tendered at such a late stage. Nor was there any justification for the Court to feel inclined to permit those documents. Pre‑emption is nothing but a war of wits and if a pre‑emptor like the present appellant did not show wits in time, he cannot be helped to fill in the gaps subsequently and that too at the late stage of the second appeal. The application is dismissed.

6. Counsel for the appellant in the alternative submitted that owing to the demise of his wife, he had inherited property in the estate and thereby acquired the other qualification but he fact remains that the lower appellate Court held that she died after the sale in dispute. Evidently any post facto event making the appellant an owner in the estate would not be helpful. He should have possessed the qualification on the date of the sale and continued to avail it till the date of decree. If. he did not own such qualification on the date of sale, he would not be allowed to improve it.

7. Mr. Qureshi tried to show that the finding of this question of fact was erroneous inasmuch as the date of death of his wife as shown in the mutation (Exh.P.l) was wrongly ignored by the learned District Judge. This entry was thoroughly discussed qua the other evidence on the record in the impugned judgment‑and the conclusion was drawn against the appellant. I do not think the appraisal of the evidence on the point was faulty or wanton as held in Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan etc. P L D 1970 S C 139 and Kanwal Nain etc. v. Fateh Khan etc. P L D 1983 S C 53 to call for interference.

8. As a result, the appeal is dismissed leaving the parties to bear their own costs. H.B.T./A‑750/L Appeal dismissed.