2004 PLP 1306 (YLR)

Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782; Mohabbat v. Asad Ullah Khan and others PLD 1989 SC 112 and Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336 ref. Awan Muhammad Hanif Khan for Petitioner. Shakir Ali Rizvi for Respondents. This revision petition assails judgments and decrees dated 12‑5‑1984 and 1‑12‑1996 passed by the learned Civil Judge and learned District Judge, Mianwali, dismissing petitioner's suit and appeal, respectively.

2. Precisely, facts relevant for disposal of this petition, are that the petitioner filed a suit for possession through pre‑emption against a Mutation No. 10919 dated 15‑5‑1991 showing exchange of 8 Kanals, 12 Marlas of land amongst the respondents and one Muhammad Yousaf Khan, brother of the petitioner, claiming it to be a sale, effected for a consideration of Rs.43,000, claiming his superior pre‑emptive right being a co sharer in the disputed Khata. The petitioner also claimed to have performed the requisite Talbs, necessary for maintaining the pre‑emption suit. The petitioner pleaded in his plaint that as a matter of fact the transaction subject of his suit, was sale but in order to save it from pre‑emption, a fake exchange was shown where under another Mutation No.74 dated 23‑5‑1991 was sanctioned in favoar of Muhammad Yousaf Khan, vendor.

3. The respondents being defendants in the suit denied assertions in the plaint and pleaded in their written statement that the exchange subject of suit is not pre emptable, the petitioner has not performed requisite talbs and thus, has extinguished his superior right, if any Controversial pleadings of the parties, necessitated framing of issues and recording of evidence where after the learned trial Judge, who was seized of the matter, vide his judgment and decree dated 12‑5‑1994 dismissed the suit of the petitioner holding that the petitioner could not prove the exchange affected through Mutation No. 10919 dated 15‑5‑1992, as sale.

4. The petitioner aggrieved of the decision of the trial Court dated 12‑5‑1994 filed an appeal before the learned District Judge, but remained unsuccessful as his appeal was dismissed vide judgment and decree dated 1‑12‑1996. He filed a revision petition before this Court, which was admitted to regular hearing and has now been taken up for final determination. The petitioner, while filing revision petition before this Court, filed an application (C.M. No.2 of 1997) under Order XLI, rule 27, C.P.C. seeking permission to produce in additional evidence, copy of Mutation No.91 dated 10‑7‑1991 whereby Muhammad Yousaf Khan vendor in the suit in hand, had also sold his land measuring 57 Kanals, 2 Marlas for an amount of Rs.3,00,000 on the same day of alleged exchange, subject of this suit.

5. Learned counsel for the petitioner submits that exchange was proved to be sale and thus, was subject to law of pre‑emption as enunciated by the Punjab Pre‑emption Act, 1991 but both the Courts below have taken an incorrect view which runs counter to the evidence on the file. He further submits that Muhammad Yousaf Khan who was the real brother of the petitioner and had sold his land to the respondents, has falsely shown the transaction of sale, as exchange. He in support of this contention referred to Exh.P.1, copy of Mutation No.91 dated 10‑7‑1991 whereby land received by Muhammad Yousaf Khan, in exchange, was re‑conveyed to the respondents showing it to be a sale for Rs.1,000 only. It is also the case of the petitioner that mutation sought to be produced by way of additional evidence will demonstrate that land subject of this mutation, was sold by the same vendor on the same day at the rate of Rs.5,263 per Kanal but price of 8 Kanals, 12 Marlas of land re‑conveyed to the respondents for Rs.1,000 is fake. It: this manner he asserted that documents sought to be produced, is quite relevant to the controversy whereby nature of the transaction subject of this suit, will be correctly determined and assessed by the Court. Conversely, the learned counsel for the respondents supported the judgments and decrees of the two Courts below, refuted the assertions of the petitioner and urged that it was for the petitioner to prove that the transaction in question is not exchange, is a sale and he did not produce any evidence in support of it, thus, his suit cannot be decreed. Learned counsel for the respondents contested application by the petitioner, under Order XLI, rule 27, C.P.C. saying that the copy of mutation sought to be produced, was available during the trial of the suit but has not been produced by the petitioner during his evidence. It was also not produced in the Appellate Court and it is too late in the day, to produce this document in revisional jurisdiction of this Court.

6. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record appended herewith. The only controversy between the parties is that whether exchange effected through Mutation No. 10919 dated 15‑5‑1991 (Exh.P.3) is a sale, subject to pre‑emption laws. The petitioner has produced a copy of Mutation No.91 dated 10‑7‑1991 (Exh.P.1) re conveying the same land measuring 8 Kanals 12, Marlas to the respondents, showing it to be a sale for Rs.1,

000. The A petitioner in order to meet argument of the respondents that an owner can sell out his property at the price of his choice which cannot be objected by any 3rd party, seeks permission to produce Mutation No.91 dated 10‑7‑1991. This mutation shows that Muhammad Yousaf Khan, brother of the petitioner (claimed to be a vendor by the petitioner in the instant suit) sold his land treasuring 57 Kanals, 2 Marlas for an amount of Rs.3,00,000 at the rate of Rs.5263 per Kanal. If we calculate value of the land, reconveyed by Muhammad Yousaf Khan, through Mutation No. 91 dated 10‑7‑1991 (Exh.P.1) price of that should A have been about Rs.43,000 instead of Rs.1,

000. In this manner, this document is quite relevant to the controversy involved in this suit. A notice to the respondents was ordered on C.M. No.2 of 1997 vide order dated 6‑2‑1997 but they did not opt to file any reply to his application which is supported by an affidavit. Averments of which have not been refuted by filing any counter‑affidavit. The respondents were under notice to petitioner's claim that he was not party to Mutation No.90 dated 10‑7‑1991 sought to be produced by way of additional evidence, as such, this mutation was not within his knowledge and could not be produced before the Courts below, due to inadvertence but they have not denied it, by filing any reply, thereto. Mere delay in filing application under Order XLI, rule 27, C.P.C. is not enough to dismiss this petition especially when it is apparent that this document is relevant to the controversy and is needed for just and H fair decision of the case. Copy of Mutation No.90 dated 10‑7‑1991 is a copy from public record, probability of tampering of which, is very remote and in view of respondents right to produce evidence in rebuttal of this document, no prejudice will be caused to them, if permission to produce this document is allowed. In similar circumstances, additional evidence was allowed to be produced in revision jurisdiction in the cases of Ahmad Ashraf v. University of the Punjab 1988 SCMR 1782; Mohabbat v. Asad Ullah Khan and others PLD 1989 SC 112 and Ghulam Muhammad and another v. Muhammad Aslam and others PLD 1993 SC 336.

7. For what has been discussed above, I accept this civil revision, as well as, C.M. No.2 of 1997, set aside both the judgments and decrees dated 12‑5‑1994 and 1‑12‑1996 passed by the learned Civil Judge and the learned District Judge, Mianwali, and remand back the case to the trial Court with the direction to allow the petitioner to produce in evidence copy of Mutation No.90 dated 10‑7‑1991 by way of additional evidence and after affording the respondents opportunity of rebutting this document, to decide the suit, afresh on the basis of the evidence on the file, in accordance with law. Parties are left to bear their own costs.

8. This file be sent to the learned District Judge, Mianwali, who may entrust it to the trial Court, if still working or may entrust to any other learned Civil Judge having jurisdiction in the matter, for decision of the case, as observed above. Parties will appear before the learned District Judge on 16‑1‑2004. M.A.W./M‑19/L Case remanded.