2002 PLP 2857 (YLR)

Mirza Manzoor Ahmad for Appellant. Mirza Ejaz Baig for Respondent. Date of hearing: 6th March, 2000. The respondent No. 1 acquired the suit‑land vide a registered Exchange Deed dated 8‑11‑1973. The appellant filed a suit for possession of the said land by pre -emption. Her case was that the land had in fact been purchased by respondent No.1 and the registered Exchange Deed is only a disguise. Her case was that the land had been so purchased for a consideration of Rs.20,

000. She claimed superior right of pre‑emption on the ground‑ of being an owner of the estate. It was further stated in the plaint that in case the land is found to be Urban Immovable Property then the custom of pre‑emption was existing in the locality in question since before the enforcement of Punjab Pre‑emption Act, 1913. The suit was resisted by respondent No.1 who denied the said allegations in the plaint. 'Issues in the suit were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the appellant subject to payment of Rs.50,000 and making up deficiency in the Court‑fee vide a judgment and decree dated 27‑2‑1984. Feeling aggrieved the respondent No.1 filed an appeal which was heard by a learned Additional District Judge, Multan. The said learned Judge upheld the findings of the learned trial Court to the effect that the transaction was in fact a sale; that the suit‑land was Urban Immovable Property; that the custom of pre‑emption did exist in the locality in question. However, the finding of the learned trial Court on Issue No.8 as to the superior right of pre‑emption of the appellant was reversed and consequently the appeal was allowed and the suit of the appellant was dismissed vide a judgment and decree dated 10‑12‑1984.

2. Mirza Manzoor Ahmad, Advocate, learned counsel for the appellant argues that a specific plea that the property of the appellant is not adjacent to the suit‑land was not taken in the written statement. Further contends that evidence on record has been misread by the learned Additional District Judge while reversing the judgment and decree of the learned trial Court. Mirza Ejaz Baig, learned counsel for the respondent, on the other hand, argues that the fact that the property of the appellant was not adjacent to the suit‑land is not only established by the evidence led by the respondents but also in the evidence led by the appellant.

3. I have gone through the records of the learned trial Court as also of the learned First Appellant Court, with the assistance of the learned counsel for the parties. I find that the plea of contiguity has been taken in para. No.3 of the plaint which has been specifically denied by the respondent in her written statement. So far as the evidence is concerned, I find myself in agreement with the learned counsel for the respondent that the foundation for the said defence of the respondents had in fact been laid down by the appellant herself. The respondent produced Niaz Muhammad, Patwari as P. W‑1, to prove document Exh.P‑

1. In. this cross‑examination he was confronted with a plan Exh.D‑1 and he admitted that in the said plan Khasra No.805/2 is 'Ghair Mumkin Khal' and is owned by Razi Shah and Haider Shah sons of Ghulam P. W.3 is Sher Muhammad Khan who stated in his examination‑in‑chief that the suit‑land is absolutely adjacent to the property of the appellant. He made two fatal admissions in his cross‑examination. One that it is only the built‑up house of the appellant which is adjacent to the suit‑land and she has no other property except the said house and second he expressed, ignorance when questioned that there is a Khal in between the said house of the appellant and the suit- land. This witness is a brother‑in‑law of the appellant. P.W.4 Abdul Jabbar Khan tried to repair the damage by stating that the property of the appellant comprises of a house and some cultivated land. He is contradicted in said statement by the said P.W.2. In his cross‑examination he was made to say that the said cultivated land is towards the North of appellant's house whereas the suit‑land is admittedly towards the East of the said house. On the other hand, Ghulam Yasin D.W‑3, Faiz Bakhsh D. W‑4 and Syed Firdos Shah D. W.5 categorically stated that there is a Khal in between the property of the appellant and the suit‑land. Faiz Ullah. Khan the husband and Attorney of appellant entered the witness‑box on several occasions. He so entered the witness‑box for the first time as P. W.5. In this statement he does not refer to the contiguity of the house with the suit- land but rather states that the land of the appellant is adjacent to the suit‑land He, however, denied the suggestion that there is a Khal between the house and the suit‑land Said Faiz Ullah Khan again entered the witness‑box as P. W

6. He made the following statement in .the course of his cross‑examination: Now this statement is nothing but a contradiction in terms. In the same breath he is denying that there is any Khal on the spot and asserting that the Khal is owned by the appellant. I also find that the learned Additional District Judge in the course of hearing of appeal recorded statement of Muhammad Khan who was at that time the General Attorney of the appellant. It so happened that the learned Additional District Judge was hearing the arguments, the learned counsel for the respondent made a prayer that the Khal is in existence on the spot and the learned Judge can go to the spot and see for himself. The learned Additional District Judge must have shown inclination to accept the said prayer when the said General Attorney made a statement admitting that in between the house of the appellant and the suit land, there is a drain (ﻰﻠﺎﻧ) which is Pacca and earlier it was Katcta. He further stated that the drain was paved by the Municipal Committee. In .the same breath he stated that the drain belongs to the appellant. He stated the width of the drain to be 2 feet.

4. Learned counsel for the appellant argues that the said admission had to be read as a whole as the Attorney had stated that the drain belonged to the appellant. I am afraid the contention is without any factual or legal basis. I have already referred to the evidence on record and there is not an iota of evidence to the effect that the drain belonged to the‑appellant. I find that this R.S.A. was filed as far back as in the year 1985. There is a C.M. 1871 of 1986 for additional evidence under Order XLI, rule 27, C.P.C. which was ordered to be heard alongwith the main appeal vide an order dated 21‑10‑1986. It appears that after the decisions of the two Courts and even the filing of the present R.S.A. proceedings were initiated against the said Muhammad Razi Shah and Muhammad Haider Shah for correction of the Revenue Records. The Collector came to pass an order on 14‑5-1986 whereby he deleted the said Khasra No.805/2 from the name of said Razi. Shah and instead made an addition to their Khasras Nos.799, 800 and

852. I, have gone through the order dated 14‑5‑1986. I find that there is no reference at all to the decision of the pre‑emption suit and the pendency of this R.S.A. I am sure that had the findings of the learned trial Court as also of the learned First Appellate Court been brought to the notice of the Collector; he would have stayed his hands as there is a concurrent findings of the learned Courts below that the said area i.e. 805/2 is in existence in between the property of the appellant and the suit‑land I also find that the said Khasra No.805/2 was in existence since before the independence of the Country. Document Exh.D‑5 shows that Muhammad Razi Shah and Muhammad ‑Harder Shah are the owners of the said land while the Central Government is 'Haqdar‑e‑Shamilat' for the same. This means 'that the land was evacuee, it came to vest in Central Government and then it was transferred to the said owners. I seriously doubt the jurisdiction of the learned Collector to pass order dated 14‑5‑1986 under the said factual background. There is nothing on record to suggest that the respondent was a party to the said proceedings or she was issued a notice before passing the said order. Besides it is but admitted that Khasra No.805/2 was existing between the property of the appellant and the suit‑land in the form of a Khal. It is an admitted position that water runs through the said Khal and that it was paved by the Municipal Committee. In this view of the matter, I am not inclined to allow the said application for additional evidence which is rejected, for the reason that the said evidence would not have any effect on merits of this case for reasons stated above.

5. In the light of above discussion, I find this R.S.A. without any force. No question of law arises in it and the question of fact involved in the suit has been correctly decided by the learned First Appellate Court. This R. S. A. is accordingly dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./D‑19/L Appeal dismissed.