1988 PLP 385 (CLC)

This Regular Second Appeal has been brought from a judgment dated 30th of July, 1980 whereby in accepting an appeal, the learned Additional District Judge, Gujrat set aside the judgment dated 13‑4‑1978 of the Trial Court dismissing the suit and decreed the suit for possession through pre‑emption with costs through out.

2. The respondent instituted a suit on 16‑6‑1976 against the appellants in the Civil Court at Kharian for possession through pre‑emption of the agricultural land measuring 15 Kanals 14 marlas, 12/3 share of the land measuring 17 Kanals situated in Mauza Mandir Tehsil Kharian, District Gujrat purported to have been sold by one Muhammad Inayat vide registered Sale Deed dated 15‑7‑1975 in consideration of Rs.60,000, claiming a superior right of pre‑emption being the nephew (sister's son) of the vendor. The respondent also asserted that the land was actually sold for Rs .40, 000.

3. The appellants contested the suit by denying the averments in the plaint and maintaining that the suit was collusive, the same had been instituted for the benefit of one Lal, the respondent was present at the time of the transaction and the transaction was perfected with his consent and he had given an undertaking in writing that he would not be instituting a suit for pre‑emption, as such was estopped from instituting the suit. The appellants were cultivating the land in question as tenants before the sale and were still in the same relation. They were also owners in the estate. The respondent had no cause of action. The suit had not been rightly valued for the purpose of court fee.

4. As to issue No. 2 that whether the plaintiff was estopped to file the suit, the learned Civil Judge relying upon EXh.D.l embodying an undertaking given by the respondent and his father that they would not file any suit to pre‑empt the said land alongwith other evidence, expressed that there was no reason to disbelieve that the respondent had debarred himself from bringing the suit and decided the issue in favour of the appellants. However, while deciding that, the learned Civil Judge also made certain observations that the respondent had not at all appeared in the court to give his statement. He was Lal Khan, father of the plaintiff, who had been examined as the Special Attorney of the respondent. His statement had been recorded. He had totally spoiled the case. The power of attorney Exh. P5 by the respondent in his favour purported to be executed and attested on 4‑12‑1977 but Lal Khan as P.W.4 stated that the respondent was not in Pakistan on 4‑12‑1977, thus by his own statement, the witness declared the power of attorney to be a fictitious one, therefore, if he was believed he could not be said as the attorney of the respondent. Furthermore he had denied the signature of Muhammad Riaz on the very plaint and wakalat nama also. The power of attorney Exh. P.5 was executed much after the institution of the suit which was instituted on 16‑6‑1976. The plaint appeared being verified and signed by Muhammad Riaz but according to Lal Khan P.W.4, the respondent had not signed the plaint. He also said that the signature of the respondent which appeared on wakalatnama was not his signature. The learned Civil Judge was of the view that if the statement of the witness was given any value, the plaint was reduced to a simple paper which could not be disposed of. He found that the respondent had a preferential right to pre‑empt the land, he treated the sale price as Rs.60,

000. The costs of improvement were not proved. No face was given to the assertion as to the collusive nature of the suit. He ultimately dismissed the suit on the question of estoppel. This is vide judgment dated 13‑4‑1978.

5. The respondent being aggrieved of the judgment of the learned Civil Judge filed an appeal which came to be decided by the learned Additional District Judge, Gujrat. Before him, the case was confined only to the findings given on the question of estoppel. The learned Additional District Judge observed that the document Exh. D.1 was not an authentic document because firstly, that was not a registered document and could be prepared at any time, secondly, the document purported to be a receipt for payment of earnest money and that could not be termed as an agreement on behalf of the pre‑emptor for the relinquishment of his right of pre‑emption, and thirdly, that was worth: interesting to note that the sale deed was registered on 15‑7‑1975 whereas the document was purported to have been executed on 12‑5‑1975 but there was no mention of Exh. D.1 in the original Sale Deed Exh. D.2, since according to the said document Rs.100 were paid as earnest money but the original sale deed proved that no earnest money was paid and whole of the sale price was paid before the Registrar at the time of registration. According to the learned Additional District Judge, the said document appeared to be a forged one. As to the other observations made by the learned Civil Judge, the learned Additional District Judge said that the trial Court had laid great stress upon the cross‑examination of the attorney of the pre‑emptor that he had denied the signature etc. of the pre‑emptor upon the plaint but that fact should not be ignored that, that was not the objection of the defendants (appellants) and neither there was any issue to that effect. Moreover the said attorney was an uneducated man so that was impossible for him to recognize the signature upon any document. In his view the appellants had failed to prove the issue as to the estoppel. He set aside the finding of the learned Civil Judge on the question of estoppel and decreed the suit on the payment of Rs.60,000.

6. The learned counsel for the appellants has contended that the plea of the appellants that they were in cultivating possession of the land in question as tenants has not at all been considered by the courts below despite the fact that the evidence to that effect was adduced, (he has referred to Exh. D.5 Khasra Girdawari in order to show the cultivating possession and Exh. P.1 Jamabandi). The right of tenants, being the first right under para 25 of the Martial Law Regulation No. 115, the suit cannot be decreed as against the appellants. The reversal of finding on issue No. 2 as to estoppel by the appellate court is based on misreading of the evidence and mis‑application of the law, that during his cross‑examination the attorney of respondent, P.W. 4 admitted that neither the plaint was signed by the plaintiff no: verified by him nor the wakalatnama bore the signature of the plaintiff. The learned trial Court took a very serious note of that but the learned Additional District Judge brushed aside the objection on the ground that the objection was not taken in the written statement. In view of the said admission, the suit was not properly instituted, till this day no request to have it signed by the proper perspn has been made. The learned counsel for the appellants has relied upon Ghulam Rasool and 4 others v. Muhammad Hanif 1980 C L C 1611 in which case it has been observed that it has been persistently held that the right of pre‑emption is a predatory in‑road on free transactions of sales and as such the right of pre‑emption has to be established most positively and that technicalities have to be strictly applied to the case of a pre‑emptor.

7. The learned counsel for the respondent has in reply addressed that the point as to the signing of the plaint was neither taken in the pleadings nor argued before the trial Court. As there was no issue the evidence as to that could not be looked into. The statement of Lai Khan P.W.4 is all in misunderstanding as to the document Exh. D.1 being an illiterate person. The non‑signing of the plaint as a mere irregularity cannot affect the case on merits. The absence of finding as to the tenancy was accepted by the appellants. Abdul Aziz only was a tenant at the time of the sale, therefore, sinker applies as the other vendees were not the tenants. All, except Abdul Aziz, were out of the country. As to the waiver regarding the execution of Exh. D.1, all the D.Ws. were involved in cases under section 420, P.P.C. The learned counsel for the respondent has relied upon Ismail and another v. Mst. Razia Begum and three others, Bashir Ahmad and 4 others v. Mst. Razia Begum and three others 1981 S C M R 687, in this case, the failure to sign a plaint was treated as a mere irregularity since the palintiffs all along had been prosecuting their suits with diligence and also appearing as their own witnesses, the learned District Judge was regarded as justified in directing the very rectification of such an irregularity. That was also not shown that how such an irregularity prejudiced the objector, Yousaf v. Hashimbhoy and Co. and others P L D 1966 Kar. 456, in this case it has been held that a party cannot prove a case different from what has been pleaded by it, Nadir Ali and another v. Muhammad Adam Khan 1985 C L C 373, in this case it has been held that a fact which has not been pleaded in the plaint, no amount of evidence in support of the same can be looked into, Muhammad Siddique and 8 others v. Wazir Hussain 1985 C L C 1091, in this case it has been observed that it is well‑settled principle of law that the point requiring investigation into the facts if not raised in the pleadings, evidence on such a point cannot be looked into. Even otherwise a party cannot be permitted to succeed on a case which such party has not set up in the pleadings. Muhammad Nawaz v. Sakhawat Sultan etc. P L D 1982 BJ 33 in this case it has been held:‑‑ "It may be seen that the relief for specific performance of the contract was refused by the learned trial Court on the ground that the suit for declaration of title on the basis of the agreement was competent. The appellant having failed to file appeal or cross‑objection against that finding cannot ask for that relief and his case is clearly hit by the provisions of Order XLI, Rule 22, C.P.C."

8. The relevant statement of the attorney of the plaintiff P.W.4 is:‑ (Translated from the vernacular): "The day the suit was instituted, Riaz was in Norway. The plaint which I have seen has not been signed by my son. I can identify his signature. The wakalatnama has not been signed by me. The wakalatnama mark "A" is not thumb marked by me. Then said, it is thumb marked by me. The plaint and Wakalatnama at Marks A , B , C and D , bear no signatures of Riaz. Exh. D.1 is thumb marked .by me. The plaintiff provided me twice with a mukhtarnama, then said only once the power of attoney was given to me by the plaintiff which is Exh.P.5. Apart from this, no other power of attorney was executed. It is incorrect that on 4th December, 1977, Riaz was in Pakistan, then said, that on 4‑12‑1977 he was present in the Court". (It is pertinent to note that the power of attorney executed in favour of Lai Khan by the respondent is dated 4‑12‑1977).

9. In view of the statement of Lai Khan accompanied by other facts on the record, a finding is most called for as to whether there was a proper presentation of the plaint, duly signed by the plaintiff or his attorney and as such a valid institution of the suit irrespective to any objection in the written statement to that effect, since the same had come to light during the cross‑examination of the attorney of the respondent and in that sense might not be known at the time the written statement was filed. The decision relied upon by the learned counsel in these circumstances do not help him. The case Ismail and another v. Mst. Razia Begum and three others, Bashir Ahmad and 4 others v. Mst. Razia Begum and three others 1981 S C M R 687 relied upon by the learned counsel as quoted above is distinguishable as in that case it was simpliciter an omission to sign the plaint while otherwise the plaintiffs themselves pursued and prosecuted the cause. Here in this case, if weight is given to the fact that on that day i.e. 11‑6‑1976, the respondent Muhammad Riaz, was in Norway, then the plaint could not be signed by the respondent. The Special Power of Attorney was executed on 4‑12‑1977 in favour of Lai Khan on which day the presence of the respondent was doubtful, as such whether every thing relied upon is fake, requires determination because it will have its impact as to the proper institution of the suit and its conduct. The respondent is not shown to have appeared in the case. The person who has prosecuted the cause is to be shown that he was in fact appointed by the respondent himself as his attorney on that day.

10. The appellants had distinctly raised the plea that at the time of the sale they were tenants of the land in dispute, so while deciding the issue as to whether the respondent had preferential right of pre‑emption qua the defendant, it was incumbent upon the trial Court to have given a finding as to whether the appellants were tenants at the time of the sale in which event on a positive finding, the respondent could not be said to have a preferential right. He could have a preferential right being the nephew (sister's son) of the vendor, had to appellants failed to prove them as tenants at the time of the sale. By not attending to this aspect of the case, the trial Court appears to have exercised its jurisdiction illegally by giving a finding without examining otherwise the position of the vendees as to the preferential right of the respondent and on such a finding of the trial Court, it was not open to the learned Additional District Judge to decree the suit by treating the respondent as having a preferential right over the vendees since the same has not been resolved in keeping with the facts on the record.

11. In accepting this appeal, both the judgments and decrees of the Courts below are set aside except the finding of the learned Additional District Judge on the question of estoppel i.e. issue No.

2. The case is remanded to the learned Civil Judge to decide the suit afresh qua the two points distinctly that whether there was a valid institution of the suit for pre‑emption and whether the respondent had a preferential right of pre‑emtpion vis a via the plea of tenancy raised by the appellants and may invite further evidence if necessary. In the circumstances of this case there is no order as to costs. A.A./G‑108/L ‑ Case remanded.