2001 PLP 180 (MLD)

2. Brief relevant facts of the case are that 52 Kanals, 2 Marlas of land, fully described in the headnote of the plaint was sold through registered sale deed dated 29‑10‑1978 by Mst. Allah Jawaie to Gul Muhammad predecessor- in‑interest of appellants Nos. l to 7 and Baqir son of Muhammad Waryam for an ostensible sale price of Rs.20,

000. The transaction was pre‑empted by Sada (who has died during pendency of the appeal and is represented by his legal heirs. Baqir Ali and four others) on the ground of being co‑sharer in the Khata and owner in the estate. The price mentioned in the sale‑deed was disputed with the averment that actually Rs.5,000 were paid and Rs.20,000 were shown to defeat the right of pre‑emption of the plaintiff. Appellants resisted the suit and controverted the assertion of his superior right of pre‑emption. It was asserted by the defendants that they were in possession of the lands as tenants hence plaintiff has no superior right of pre‑emption against them. They also pleaded that the land was sold for Rs.20,000 and further claimed Rs.25,000 as cost of improvements. On divergent pleadings of the parties the following issues were framed:‑‑ Whether the plaintiff has superior right of pre‑emption, qua the vendee‑defendants over the suit land? OPP (2) Whether this suit is the result of collusiveness with vendor? OPD (3) Whether the suit land is not pre‑emptible? OPD (4) Whether this Court has no jurisdiction? OPD (5) Whether the plaint is correctly valued for the purpose of court‑fee and jurisdiction, if not so, what is correct value? OP Parties. (6) Whether the defendant effected improvement over the suit land, is so, of what value and with what legal effect? OPD (7) Whether the ostensible sale price of Rs.20,000 was fixed in good faith or actually paid? OPD (8) If issue No.7 is not proved, what was the market value of the suit land at the time of sale? OP Parties. (9) Relief. Learned trial Judge dismissed the suit in view of his findings on issue No. l holding that Mst. Allah Jawaie vendor was in exclusive possession of the disputed property which was under cultivation of the defendants as tenants, hence the pre‑emptor has no superior right of pre‑emption against them. This judgment was passed in post‑remand proceedings previously the suit was decreed on 10‑4‑1985 to the extent of 42 Kanals, 17 Marlas and remaining 9 Kanals, 5 Marlas was left with the defendants being 2/11 share of the tenancy in the whole Khata. Both the parties went in appeal and the case was remanded through judgment dated 15‑3‑1986 whereafter the aforesaid judgment dated 4‑10‑1987 was rendered by the trial Judge. Plaintiff aggrieved against the decree preferred an appeal which was partly accepted by the learned Additional District Judge through impugned judgment.

3. Learned counsel for the appellants contends that they are the tenants of the entire suit land i.e. 52 Kanals, 2 Marlas. The land was privately partitioned and Mst. Allah Jawaie vendor was their landlady prior to sale and she used to receive rent from them exclusively: He has relied upon the evidence of D.W.1 Muhammad Sharif and D.W. 2 Muhammad Aslam in support of his contention that the joint Khata was privately petitioned. Learned Additional District Judge erroneously decreed the suit of the respondents on the basis of sale from the joint Khata. Respondents have not produced any evidence in rebuttal to show that there was no family settlement. In the absence of any rebuttal, evidence of D.W.1 and D.W.2 is sufficient for dismissal of the suit of the respondents.

4. Learned counsel for the respondents contends that out of joint Khata appellants were in possession of land measuring 147 Kanals, 5 Marlas, therefore, the learned Additional District Judge was justified to modify the decree to the extent of their share as tenants in the Khata. He further submits that there was no private partition of the land from the joint Khata nor it was reported to any Revenue Officer or incorporated in the record. The plea of private partition is, therefore, not supported by any reliable evidence.

5. Heard. Record perused. The contest between the parties is confined to issue No. l alone. Appellants claimed that Mst. Allah Jawaie vendor of the suit property was the exclusive owner in possession after private partition of the property from the joint Khata which was possessed by them as tenants at the time of sale. In support of this plea Muhammad Sharif D.W.1 stated that he is co‑sharer in the suit land. It was privately partitioned and every co sharer was cultivating it separately. Appellants/vendees, Allah Jawaie and Noor Ahmad used to cultivate it. They used to pay her the rent. The other co‑sharers have no concern with the suit property. In cross‑examination he replied that this private partition took place in the year 1979. The statement of D.W.1 Muhammad Sharif is supported by D.W.2 Muhammad Aslam appellant No.2 son of Gal Muhammad vendee. He deposed that this land remained under their cultivation prior to his birth. Mst. Allah Jawaie used to get share of produce or some time her son Khizar Hayat collected produce from them. Prior to sale to his father and Baqir appellant No.8 they used to cultivate it as tenants, some having been included in the Wanda of Mst. Allah Jawaie. They used to give share of produce to her exclusively. Respondents have not produced any evidence in rebuttal to negate plea of private partition set up by the appellants in their evidence. In the absence of any evidence of the respondents, statement of D.W.1 and D.W.2 go unchallenged. Non‑appearance of the respondents to rebut this claim leads to an inference against the pre‑emptor. Right of pre‑emption is very weak one and tile pre‑emptor has to prove it strictly to oust the vendee. Failure of the respondents to rebut the evidence of Muhammad Sharif and Muhammad I Aslam leads to the inference that there was private partition as stated by the D.Ws. The burden of proof of Issue No. l was on the respondents and by non‑appearance to rebut claim of the appellants the pre‑emptor failed to discharge it in accordance with law. Although appellants have not specifically pleaded private partition of the Khata in the written statement that they were cultivating disputed land as tenants under the vendor but the perusal of written statement shows that they denied the superior right of pre emption .of the respondents and Issue No.1 is' comprehensive enough to include all the pleas available to defend the sale. Pleading is to be construed liberally as evidence is not supposed to be mentioned in the written statement. The objection of the appellants that the plaintiff has no superior right of pre‑emption qua the vendees/defendants over the suit land squarely covers their objection of private partition disclosed in the Court during evidence. Admittedly the private partition has not been given effect in the Revenue Record. It was not even reduced in writing yet D. W.1 and D. W.2 have specifically stated that the suit property was partitioned and exclusively fell in the share of vendor and the appellants regularly paid the produce to her and none else is sufficient proof in the absence of any evidence by the other side that the suit property was privately partitioned. Learned trial Judge while returning his findings on Issue No.1 rightly observed that the plaintiff has not bothered to himself to appear as a. witness in support of his version that the Khata of the suit land has never been partitioned what to speak of producing evidence. This is strong circumstance to draw an adverse inference against the plaintiff. Plaintiff has admitted the defendants as tenants in the Khata of the suit land since Mst. Allah Jawaie, the vendor owned only 52 Kanals, 2 Marlas of land in this Khata and there is no evidence if any share of the vendor was being cultivated by herself or by any other person. The plaintiff failed to establish superior right of pre‑emption against the appellants.

6. For the reasons stated above, this appeal is accepted and the impugned judgment and decree of learned Additional District Judge are reversed and that of the trial Court are restored with no order as to costs. Q.M.H./M.A.K./N‑39/L Appeal allowed.