2010 SCMR 822 (PLP)

SARDAR MUHAMMAD RAZA KHAN, J.

The legal representatives of Bashir Ahmed, the vendee in the pre-emption suit, have been granted leave to appeal from the judgment dated 19-10-1999 of a learned Judge in chambers of Lahore High Court, whereby, their regular second appeal was dismissed.

2. The brief background of the case is that Hussain Bakhsh etcetera, the sons of Sardar Khan, sold a property measuring 3 Kanals, 3 Marlas in favour of Bashir Ahmed etcetera vide registered sale-deed attested on 13-8-1969. On 1-9-1970, one Nawab pre-empted the transaction on twofold ground. Firstly, that he was owner in the estate and secondly, that he was a collateral of the vendors. The learned trial Court vide judgment dated 14-7-1975, dismissed the suit, holding that the vendees equally were owners in the estate. With regard to the collateralship, it was held that the pre-emptor had utterly failed to prove any such relationship.

3. The pre-emptors filed an appeal, which was accepted by the learned Additional District Judge on 9-3-1978, holding that Nawab was a collateral of Sardar Khan, father of the vendors, through common ancestor named Bhola. The pedigree connecting the parties with Bhola and accepted by the learned appellate Court was as follows: Bhola | _________ |______________ | | Nawahi Dad Zulfiqar | | Hassan Muhammad Sardar Khan (Adopted) | | | | | ______|____________ Nawab (Pre-emptor) | | Rehmat Khan Hussain Bakhsh ________________________________ (Vendors) The above pedigree-table is the inset carved out from a large pedigree-table, Exh.P/5, (p.76). The learned first appellate Court, however, concurred with the trial Court that the pre-emptor had no superior right based on ownership in the estate because respondents equally were the owners. The learned High Court, through the impugned judgment, concurred with the first appellate Court and hence this appeal.

4. It is irritatingly sad to note that the appellant having purchased the property in 1969, have constantly been dragged into litigation for the last 40 years. There is concurrent finding of all the Courts below to the effect that, so far as the ownership in the estate is concerned, the pre-emptor and the vendee both are the owners. We would, therefore, confine ourselves to the superior right based on collateralship.

5. The assertion of the pre-emptor is that his grandfather Nawahi Dad was the real brother of Zulfiqar. That Zulfiqar had adopted Sardar Khan as his son, while the latter also happened to be his grandson i.e. the son of his daughter Pir Bibi. Pir Bibi was married to one Ali Gohar in another village named Mast Pur, while the parties belong to village Pakki Kotli. In support of such assertions, reliance was placed on pedigree-table (Exh.P.5), where Sardar Khan was placed in the degree of son with an entry of mutbanna in between. It is a settled principle of law that a pedigree-table alone and by itself is not a proof of relationship unless such relationship is independently proved through witnesses or other independent evidence. The pre-emptor was dead and his legal heirs impleaded, out of whom Muhammad Hussain appeared as P.W.2, while. Fazal Elahi was examined as P.W. The evidence was closed thereafter. Besides the plaintiff, we have the statement of only one witness, named Fazal Elahi.

6. A detailed perusal is required to arrive at a just conclusion. P.W. Fazal Elahi is an octogenarian, belonging to Pakki Kotli, but at the same time he is a carpenter of the village. It indicates that the plaintiff could not produce any relative or any neighbor having relationship with the parties. Thus the knowledge professed by this witness is not at all dependable. The statements of the two witnesses are so discrepant and destructive of each other that no reliance at all can be placed thereon.

7. Fazal Elahi states that he had seen Pir Bibi, the mother of Sardar Khan and the daughter of Zulfiqar, but has not seen Sardar Khan because he had pre-deceased his mother, having died 60 years ago while, according to him, Pir Bibi had died 55/56 years ago. It is not satisfactorily explained as to how does he know Pir Bibi who was married, admittedly, to Ali Gohar in a different village named Mast Pur. Not a single witness was produced from village Mast Pur to prove that Pir Bibi was the daughter of Zulfiqar and that she was married to Ali Gohar and above all, that Sardar Khan was an offspring of the marriage between Ali Gohar and Pir Bibi.

8. On the other hand, Muhammad Hussain, one of the plaintiffs, categorically stated that Zulfiqar, the father of Pir Bibi had died about 80/90 years ago, while Pir Bibi died two years thereafter. Meaning thereby that Pir Bibi had died 78-88 years prior to the statement of Muhammad Hussain, P.W.2. In the same flow, Muhammad Hussain states that Sardar Khan died 50/55 years ago. This brings us to the conclusion, drawn from his statement, that Sardar Khan remained alive for more than 30-35 years after the death of Pir Bibi. The contradiction is so grave and apparent that if we believe in the statement of Muhammad Hussain, we have to reject that of Fazal Elahi, who is sure that Sardar Khan had pre-deceased his mother. If we believe Fazal Elahi, the statement of Muhammad Hussain is bound to be absolutely brushed aside.

9. Moreover, we have gathered the year of birth of Muhammad Hussain from this Identity Card as 1918. At the time he gave his statement, in 1974, he was only

56. So, his statement about Zulfiqar, Pir Bibi and Sardar Khan is nothing but hearsay. We are surprised that on the basis of such destitute evidence, the Courts have held the claimed relationship to have been proved. We hold that the pre-emptor has failed to prove the contents of the pedigree-table. They have failed to prove that Pir Bibi was the daughter of Zulfiqar. That Sardar Khan was the son of Pir Bibi from Ali Gohar and that Zulfiqar had adopted him as son. The relationship, on which the right of pre-emption is based, is totally unproved.

10. The learned counsel for the appellant also objected to the statement of Muhammad Hussain on the ground it was recorded after that of the defendant. Though it is unprecedented, yet no such objection was taken at the proper occasion. Rather, it is still more damaging for the plaintiff himself that despite such manoeuvring, he could do no better than adducing such discrepant evidence.

11. All such discrepancies, so glaring and so destructive, lead us to observe that even the plaintiff was not sure about the relationship alleged, which is why no such relationship was alleged in the plaint. At least, a single word Nawasa could have been mentioned in the plaint regarding relationship between Zulfiqar and Sardar. Quite interesting it is to note that not a word about adoption of Sardar is mentioned in the plaint.

12. Learned counsel for the respondents relied upon Riwaj-e-Aam of that area, not produced earlier, where the adoption of a grandson is considered valid and entitled to inherit. We do not rely upon such Riwaj because the prevalence of a custom is a question of fact. Despite such reference, in any Riwaj-e-Aam, the people of the area and the families involved may or may nor follow the custom. It was, therefore, incumbent upon the pre-emptor to have proved through independent evidence as to the existence of such custom in their village or in their family. Not an iota of evidence was produced to such effect.

13. Last was a technical objection raised by learned counsel for the respondents that the appeal was not maintainable because the legal heirs of deceased Aimana Bibi were not brought on record within time. She is said to have died in the year 1991 while her legal heirs were brought on record in the year 2003. It is obvious that after the deletion of Order XXII, C.P.C., abatement does not take place if the legal representatives of some party are not brought on record. Such legal representatives automatically become party and bound by any decision given by the Court. However, in the Supreme Court under Order XV, rule 7 of the Supreme Court Rules, 1980, the legal representatives are to be brought on record within 90 days. Such rule also is not absolute because the Court, for sufficient cause, can extend the time. We hold that in the year 2003, when the legal representatives were brought on record, the time stood extended. It can be extended even subsequently on the ground that the learned counsel, before the High Court, could have informed that his client has died and that his or her legal representatives be brought on record.

14. For what has been discussed above, the appeal is accepted, the impugned judgment dated 19-10-1999 is set aside and that dated 14-7-1975 of the trial Court is restored. Pre-emption suit is hereby dismissed with costs throughout. M.H./B-1/SC Appeal allowed.