1998 PLP 450 (MLD)

(i) That the trial Court as well as the first appellate Court, on the basis of evidence brought on record by the parties, proceeded to pass a decree in favour of the plaintiff-respondent, therefore, the concurrent findings of facts recorded by both the Courts below cannot be assailed in second appeal; (ii) that the pre-emption suit was filed mainly on the ground that the plaintiff had a superior right of purchase on account of his being 'yakjuddi' of the vendor and also a co-sharer in the suit land. The trial Court granted the decree on the basis of aforesaid grounds which was affirmed by the District Judge; (iii) that the vendee-appellants did not repudiate the claim of the plaintiff respondent for being 'yakjuddi' of the vendor and a co-sharer in the suit land. It was elaborated that the relevant paras Nos. l and 4 of the plaint were not denied; and (iv) that the vendee-appellants failed to bring any evidence which may contradict the claim of the plaintiff.

5. I have heard the learned counsel for the parties and also gone through the record carefully. The case has got a chequered history. The suit was filed on May 11, 1965. It was dismissed on February 10, 1966 but the same was restored on March 16, 1975. The trial Court dismissed the suit on merits on January 11, 1981 and, on appeal, was remanded by the appellate Court to the trial Court which passed a decree and the same was affirmed through the impugned order. The detailed facts of the earlier rounds are not necessary, as such, are not given. A perusal of the judgment of the trial Court reveals that the decree on the basis of prior right of purchase was granted on the ground of pre-emptor being a co-sharer in the suit land. The finding was affirmed by the District Judge in the similar manner. It was strenuously argued by the learned Counsel for the appellants that there was no legal evidence available on the record which may substantiate the plaintiff's plea. It was also argued that the Jamabandi for the year 1952, appended with the plaint, was never tendered in evidence as such, the same did not form part of the record. Alternatively, it was also contended that the plaintiff could not be regarded a co-sharer in the suit land on the basis of aforesaid Jamabandi for the year 1952 when the suit was filed for which no other evidence was offered. I have critically examined the evidence led by the parties. The pre-emptor has based his claim of his superior right of purchase on the ground of his being 'yakjuddi' as well as a co-sharer in the suit land. The plaintiff-pre-emptor produced the oral evidence in support of his plea of being 'yakjuddi' of the vendor and relied upon the Jamabandi for the year 1952. appended with the plaint, to substantiate his plea of being a co-sharer. The trial Court passed the decree on the ground of pre-emptor being a co-sharer in the suit land and left the other plea unresolved.

6. Before adverting to the plea raised by the plaintiff-respondent in respect of his claim to be 'yakjuddi' of the vendor, it would be appropriate to deal firstly, whether a decree could be passed on the basis of evidence discussed above. The Trial Court as well as the first Appellate Court relied upon the Jamabandi for the year 1952 for holding the pre-emptor-respondent to be a co -sharer in the suit land. Though the proposition stands settled that the evidence of a public document on record, though not tendered in evidence, shall be read in evidence, but it remains to be decided whether the document, i.e. Jamabandi for the year 1952, would be of any avail to the pre-emptor-respondent, for the purpose of determining the question of his being a co-sharer in the suit land, in the year 1965 when the suit was filed. Except the aforesaid document, there was no other evidence, either oral or documentary in support of the above plea. Though the vendee has also failed to offer any evidence in contradiction but the fact remains that the burden of proof of the relevant issue rested on the shoulder of the plaintiff-pre-emptor. Therefore, it was for him to prove that he continued to be a co-sharer at the time when the suit was instituted. In absence of any evidence in this regard, the decree on the basis of above ground could not be justified. Therefore, I would agree with the contention of the learned counsel for the appellants to this extent that the Trial Court as well as the first Appellate Court fell in error while granting decree on this score. But despite that, the fate of the case remains unchanged for the facts and reasons to follow.

7. The plaintiff-pre-emptor also based his claim of superiority of right of purchase, on the ground of his being 'yakjuddi' of the vendor. The above ground was substantiated by the evidence brought on record by the plaintiff-pre emptor in the Trial Court. It would not be out of place to mention that the plaintiff-respondent raised the relevant plea in para 1 of the plaint which was not 6 denied by the vendee-appellants, apart from the fact that the plaintiff produced oral evidence of Noor Ahmed son of Nawab Ali, Sher Zaman son of Khuda Bakhsh, Abdul Aziz son of Sher Muhammad, Wali Muhammad son of Ghulam Muhammad and appeared himself as witness. The vendee, Gul Hussain, the predecessor of the present appellants, in his statement recorded as witness on October 28, 1984, admitted in his examination-in-chief the above position in the following words: So there remains no ambiguity that the pre-emptor-respondent is a 'yakjuddi' of the vendor. It may be observed that the disputed points admitted by the opposite side, do not require further proof.

8. Next, the question arises as to whether the judgment and decree passed by the trial Court and affirmed by the first appellate Court can sustain on the above ground when the decree was not passed on the above score and the plaintiff-respondent failed to bring any appeal or file cross-objections in this regard. The decree was passed in favour of the plaintiff-respondent. It may be stated that the plaintiff, under Rule 22, Order 41, C.P.C., as respondent, though may not have appealed from any part of the decree, may support the decree on any of the grounds decided against him in the Court below and may also take any cross-objections to the decree which he could have taken by way of appeal. It may be clarified that any party aggrieved by a judgment and decree, may appeal against it and attack the adjudication, but an aggrieved party who is a respondent in an appeal filed by the other party, can also support the decision not only on the points decided in his favour, but also attack the points decided against him, without filing any appeal or cross-objections, provided under the above rule. The relevant Rule is reproduced below:-- "O.41, R.22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.--(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow." (2)

(3)

(4)

(5) ....................................................

9. The proposition finds support from Mst. Fazal Bi's case (1980 CLC 789), wherein relying upon the AIR 1930 Madras 801, the following observation was made:

Where a plaintiff, being dissatisfied with a decree passed in his favour, prefers an appeal, the appellate Court, in a proper case, has jurisdiction to exercise its powers in favour of the respondent by dismissing the plaintiff's case in toto, though the respondent did not prefer a cross-appeal or memorandum of objections challenging the decree passed by the first Court. " A similar proposition came under consideration before the Karachi jurisdiction in the case titled 'M/s Yusuf & Co. v. Mst. Rashida Begum (PLD 1975 Karachi 684) wherein it was held as under:-- '

When an appeal is preferred, the appellant is, generally speaking. seeking to get rid of an adverse decision, adverse to him wholly or in part, which means that the opposite-party had succeeded wholly or in part. That success might be the result of a decision in his favour on one or some only of several grounds urged by him; the Curt negativing the other or others. As regards those latter grounds, he cannot and need not appeal, however, erroneous the decision, because there is no right of appeal to a party, who has succeeded. But when the opposite party prefers an appeal, he may find himself in a difficult situation if he is obliged to remain content with supporting the decision on the only point or points on which he had succeeded without resorting to the others on which he had failed. For instance, it may turn out on examination that some or all of these other grounds are good, while those accepted by the lower Court are unsubstantial. It is to provide for such a contingency, and to avoid injustice to the respondent in such a case the rule has been enacted giving him liberty to support the decree if necessary by relying on any of the grounds decided against him in the Court below. The use of the word "support" makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration, giving him a further advantage. This, he can secure only by an appeal or cross-objection." The proposition also attracted the attention of the Lahore High Court in Jamila Begum's case (PLD 1978 Lahore 1376) wherein at page 1382, it was laid down as under:-- "-21. The learned counsel for the respondent- challenged the finding of the learned District Judge on issue No.1. The appellant's learned Counsel objected that this question could not have been re-opened in the absence of an appeal or cross-objections. I am not in agreement with the argument in view of the provisions of Order XLI, rule 22, C.P.C, which authorises a respondent to support the judgment of the Court even on basis of issue decided against him. There being no decree or order against the respondents, it was not open to them to file any cross -objection or cross appeal of their own. The objection is hereby repelled.'

10. In the present case, the plaintiff-respondent, substantiated the ground of his being 'yakuddi' of tile vendor which, though was discussed by the Trial Court, but left out while passing the resolution on its basis. Therefore, the decree passed by the Court below and affirmed by the District Judge sustains on the ground of plaintiff being 'yakjuddi' of the vendor which is recognised by law as a ground for superior right of purchase as envisaged under section 14 of the Right of Prior Purchase Act, holding the field at the relevant time, i.e. before the amendment of section 14 through Amendment Act of 1993.

11. In view of the above discussion, the appeal fails, with no order as to costs. A.A./144/AJ&K Appeal dismissed.