2006 PLP 1799 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioners/plaintiffs impugn the appellate judgment arid decree dated 10-6-1992, whereby the decree of the learned trial Court dated 22-4-1981 was set aside and the suit filed by the petitioners seeking possession of the suit property through pre-emption, was dismissed.

2. The contest in this case is between the petitioners/plaintiffs, on the one hand, and respondents Nos.1 to 6, who are the L.Rs. of one Muhammad Rafique, on the other. The case of the petitioners was that they had a superior right of pre-emption on the basis that they were co-sharers/Pattidars and owners of the estate. They have established this right.

3. Muhammad Rafique claimed that he was tenant of the land and therefore, had a right of pre-emption superior to that of the petitioners. Here it may be noted that Muhammad Rafique had obtained a decree for possession though pre-emption from a Revenue Court. However, in the suit before the Revenue Court, the petitioners had not been impleaded.

4. In the foregoing circumstances, the dispute between the parties is confined to the question as to whether or not Muhammad Rafique was tenant of the land in dispute on 12-9-1975 which is the date on which the petitioners acquired the land. The petitioners produced Khasra granary (Exh.P.2) from Rabi, 1974 to Rabi, 1975 B and Khasra Girdwari (Exh.P.3) from Rabi, 1976 to Rabi, 1977. These two documents show one Ali to be the tenant cultivating the suit-land. From Exh.P.2 and Exh.P.3, it is thus, establisher) that on 12-9-1975 the tenant on the land was All rather than Muhammad Rafique. Muhammad Rafique only produced Exh.D.2, which is Khasra Girdawari from Kharif, 1973 to Kharif, 1974 and Exh.D.3, which is Khasra Girdawari for the year 1972. These documents do not cover the date of B 12-9-1975 and, as such, are not relevant for the purpose of deciding the present controversy. The onus of proving that he was a tenant on the land on the relevant date was on Muhammad Rafique, but he failed to discharge the same.

5. The learned Appellate Court, however, relied on a Khasra Girdawari, which was not exhibited on record, but was available on file. This document relates to Khasra Girdawari from Rabi, 1974 onwards and shows Muhammad Rafique to be the tenant of the land. Here it may be noted that the petitioners or their witnesses were never confronted with this document and c nor was any attempt made to make it part of the evidence in the case. In the circumstances and keeping in view Exh.P.2 and Exh.P.3, the aforesaid document cannot be given any evidentiary value. In the circumstances, the reliance by the learned Appellate Court on the said un exhibited document clearly is against the law. The appellate judgment, therefore, is not legally sustainable.

6. Learned counsel for the contesting respondents referred to the case titled Mian Tajammul Hussain others v. State Life Insurance Corporation of Pakistan (1993 SCMR 1137) to argue that a document on file though not exhibited, can be relied upon by a Court. This case, however, is clearly distinguishable on facts because the party, which was adversely affected by an unexhibited document, was confronted with the said document. This is not the situation in the present case. Furthermore, this document is in conflict with Exh.P.2, which has been properly exhibited. The unexhibited document, for this reason also, cannot be a basis for decision in this case.

7. Learned counsel also referred to the case titled Syed Phul Shah v. Muhammad Hussain and 10 others (PLD 1991 Supreme Court 1051). Certain aspects of the cited case are similar to the facts of the present case inasmuch as there was a pre-emption decree obtained by a tenant from a Revenue Court and a pre-emption decree obtained by a co-sharer and owner in the estate from a Civil Court. However, the precedent case is distinguishable because therein the question as to whether the decree-holder from the Revenue Court was or was not actually a tenant, was not in issue. In the present case, the status of Muhammad Rafique as a tenant was materially and substantially in issue. It was, therefore, for Muhammad Rafique to prove that he was indeed, a tenant. On the basis of the available evidence, it is clear that he was unable to do so. The document relied upon by the learned Appellate Court to support the case of Muhammad Rafique, was not part of the evidence for the reasons discussed above. It, therefore, could not have been the basis for holding that Muhammad Rafique was tenant of the disputed land on 12-9-1975.

8. For the foregoing reasons, I find that the appellate judgment and decree suffer from illegality. The same are set aside. As a consequence, the decree of the learned trial Court dated 22-4-1981 stands restored. H.B.T./B-9/L Revision allowed.