2010 PLP 464 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

These two appeals had already been heard and dismissed by a Full Bench of this Court on 23-2-2007. The appellants piled Civil Review Petitions Nos.85 and 86 of 2007, which were accepted on 19-3-2008 to the extent that the appeals be fixed for rehearing. Today, the cases were reheard extensively.

2. The legal heirs of Rehmat Ali and another Muhammad Ibrahim (vendees in the original suit for pre-emption) have filed these appeals against the judgment dated 10-4-2001, passed by a learned Judge in Chambers of Lahore High Court, whereby, Allah Ditta stood granted a decree for possession through pre-emption of the suit-land.

3. One Muhammad Boota happened to sell the disputed land measuring 22 Kanals, 18 Marlas in Khata Nos.195-196-197 through .registered deed dated 29-6-1976 for a sum of Rs.1,21,

561. Allah Ditta brought a suit for pre-emption on the ground that he was a collateral of Muhammad Boota, that we was a co-sharer in Khata as well as owner in the estate. A decree, dated 10-1-1985 was granted by the trial Court recognizing his right of being collateral as well as owner in the estate.

4. Both the parties went into appeal. The pre-emptor claimed that' a charge of Rs.20,000 regarding mortgage amount had wrongly been imposed because the so-called mortgage was factitious. The vendee also filed an appeal which was partially accepted, holding, that Allah Ditta was not a collateral and that he was a co-sharer in Khata No.197 alone and hence he could pre-empt only a property measuring 1 Kanal, 2 Marlas situated in that Khata. Both the parties again went in revision. That of the pre-emptor was accepted through the impugned judgment on the ground that Allah Ditta was a collateral of Muhammad Boota, the vendor" and hence entitled to pre-empt the entire property. The revision of vendee was dismissed. Hence these appeals.

5. The question of pre-emptor Allah Ditta being collateral of Boota, the vendee, was the only question addressed during arguments on rehearing. Following is the relevant portion of pedigree table, Exh. P.1:

6. It has come in evidence, as proved by the pre-emptor, that he was the son of Sardar who, in turn, was the adopted son of Wali Dad. The deed of adoption under custom dated 11-7-1928 is on record as Exh.P.3. The evidence as well as the recital of the deed would indicate that Sardar, the father of Allah Ditta, pre-emptor, besides being the adopted son of Wali Dad, was also the real son of Jiwan, the real brother of Wali Dad. Whether he is considered to be an adopted son of Wali Dad or real son of Jiwan, in either case, the vendor happens to be the real nephew of Sardar and the first cousin of Allah Ditta, the pre-emptor. Thus being a collateral, he was rightly granted decree for possession of the entire land.

7. Learned counsel for the appellant has challenged the adoption deed Ex-P/3 on the ground that it being certified copy was not admissible due to non-production of the original. It was chinned from the opposite side that the original was placed on record but when summoned it transpired that the entire record has been burnt in a fire where the Record Room was get ablaze.

8. This argument can be countered by two very important facts. Firstly, that even if the adoption deed is excluded, the collateral relationship between the parties is proved on record and is, rather, admitted by one of the witnesses of the appellants, namely Allah Rakha (D.W.2). The learned counsel for the appellant dubbed the statement of Allah Rakha as obliging and hence not to be relied upon in view of our judgment in Farrukh Jabin v. Maqbool Hussain PLD 2004 SC

449. In order to decide as to whether the statement is obliging or a simple narration of true facts depends upon the circumstances of that case, the status of the witness and the manner in which he deposed. In the instant case, the case of the pre-emptor rests on the question of his collateral relationship for which he himself appeared in the witness box and also produced pedigree table as a public document from Revenue Record. He verbally supported the pedigree table describing the exact relationships ascending to Allah Din, the common ancestor. By doing so, the pre-emptor had seriously shifted the burden of proof. In their turn, the vendees could not discharge the shifted burden, rather, Allah Rakha, D.W.2 admitted such relationship. In view of the overwhelming evidence, the admission of Allah Rakha can be treated as the true statement of facts not at all obliging.

9. The original record is admittedly destroyed. The reconstruction of file has not yet taken place. Even if the file is reconstructed, it would be the copy of copies and hence would not serve the purpose of the learned counsel for the appellants. We would, therefore, confine ourselves to the legal status of a certified copy of registered adoption deed, Exh.P.3. This copy furnished under the signatures of Sub-Registrar Sialkot is fully admissible under section 90 of the Qanun-e-Shahadat Order, 1984. Presumption of genuineness is attached to it. Secondly, it is a public document, more than 80 years old and hence a second presumption is available to it under section 100 of Qanun-e-Shahadat Order, 1984. Needless to say that such presumptions though rebutable, have not only been rebutted, but contents thereof have, rather been admitted. Our judgment in Khuda Bakhsh v. Amir 1980 SCMR 760 further supports the case of pre-emptor. We, therefore, hold that the relationship between the vendor and the pre-emptor is fully proved through oral as well as documentary evidence.

10. Being collateral, Allah Ditta, pre-emptor was rightly granted decree of the entire land through pre-emption. The evidence appreciated by the learned High Court is perfectly correct. There being no force in the instant appeals, both are hereby dismissed. M.H./R-12/SC Appeal dismissed.