1988 PLP 414 (CLC)

‑‑‑S. 115‑‑Punjab Pre‑emption Act (I of 1913); S.15‑‑Revisional jurisdiction, exercise of‑‑Where right of pre‑emption on basis of relationship was clearly established on record, findings of Court's below denying such right to pre‑emptor were set aside by High Court in exercise of revisional jurisdiction. Muhammad Younas Bhatti for Appellant. Mirza Anwar Baig for Respondents. Date of hearing: 2nd December, 1987. Civil Revision by unsuccessful plaintiff arises out of a pre‑emption suit and is against judgment and decree dated 7‑1‑1986 of Additional District Judge, Rawalpindi, affirming those of learned Civil Judge dated 23‑7‑1985, passed in Suit No.268 of 1984.

2. By mutation No.165 sanctioned on 28‑7‑1983, Boota son of Jewan, Khatreel Jaskam by caste, sold 10 Kanals, 12 Marlas of land from Khasras 589, 594 situate at Mauza Phagwari Galla Tehsil Kahuta, District Rawalpindi, at the sale price of Rs.20,000 to Muhammad Banaras, Muhammad Arif and Muhammad Maroof sons of Muhammad Wali. Jalal Khan claimed pre‑emption in respect of this sale and sued to recover its possession. It was asserted that as collateral of the vendor and co‑sharer in the land, plaintiff Jalal Khan had superior right of pre‑emption. Price paid for the land was also disputed and it was alleged that in fact it was sold for Rs.5,300, but inflated sale price was mentioned in the mutation to evade the plaintiff's right of pre‑emption. Suit was instituted on 17‑7‑1984. In the joint written statement, defendants denied the claim of the plaintiff both in regard to his right of pre‑emption and the payment of sale price. It was pleaded that the land was purchased for Rs.20,000 and the same was fixed in good faith and was actually paid. Market value of the land, it was stated, was more than the stated consideration. While denying the right of pre‑emption, defendants also asserted that they were collaterals of the vendor.

3. On 9‑10‑1984, Court of first instance framed issues. These are: ‑ (1) Whether the ostensible sale price of Rs.20,000 was fixed in good faith or actually paid? OPD. (2) On non‑proof of issue No.l, what was the market value of the suit land at the time of sale? OP Parties. (3) Whether the plaintiff has superior right of pre‑emption ? OPP. (4) Relief.

4. On 9‑10‑1984, counsel for the plaintiff tendered copy of‑mutation 165 EXh.P.l, pedigree‑table for the year 1955‑56 Exh.P.2 and closed the affirmative evidence. Thereafter, defendants entered upon their defence and produced Muhamamd Arif defendant (DW‑1), Karam Dad (DW‑2) and closed their evidence. In rebuttal, plaintiff produced Muhammad Aslam Patwari (PW‑1), Ghulam Rasool (PW‑2), Muhammad Zulfiqar (PW‑3) and himself appeared as PW‑4.

5. On examination of the evidence, oral as well as documentary, learned Civil Judge found that plaintiff's right of pre‑emption as collateral was not established and in regard to the remaining issues, it was observed that sale price of Rs . 20, 000 was fixed in good faith and was actually paid to the vendor. In view of specific finding as to the fixation of the sale price and its payment, separate finding on issue No.2 was not recorded. On these conclusions, plaintiff's suit was dismissed on 23‑7‑1985 by the learned Civil Judge, Kahuta. Against the dismissal, plaintiff filed on appeal. It was heard by the learned Additional District Judge, who in agreement with the trial Judge found against the plaintiff and dismissed his appeal on 7‑1‑1986. With this background, plaintiff has filed a 'Civil Revision in 'this Court.

6. It may be observed at the outset that though the price payable for the land was disputed in the Grounds of Revision, yet at the hearing, learned counsel admitted the stated consideration of Rs.20,000 and submitted that in case, suit was decreed to the plaintiff, he shall have no objection to pay the aforesaid amount as the sale price of the disputed' land. From the above, it would manifestly appear that the only question requiring decision in the Civil Revision is about plaintiff's right of pre‑emption, evidence in support whereof consisted of pedigree‑table prepared for the year 1955‑56 Exh.P.2 and the statement of Muhammad Arif, defendant No. 2 as DW‑

1. Plaintiff did not make a statement in affirmative evidence, and also while appearing as PW‑4 in rebuttal, did not speak on the relationship set up in the plaint. Muhammad Arif (DW‑1) deposed in his examination‑in chief that Boota was his paternal‑cousin (Dada‑Pota) whereas plaintiffs were his distant relations. In cross‑examination, it was deposed that Boota was son of Jewan Khan and Jewan was son of Mast Khan. As for his own pedigree, it was stated that the name of his father was Muhammad WAR and that of grandfather was Daraz. Further deposed that Daraz was son of Mast. In regard to the plaintiff, it was stated that he was son of Muhammad Khan and the name of father of Muhammad Khan was Sher Khan. Proceeding further, it was deposed that Sher Khan and Mast were not real brothers. Exh.P.2 indicates that Jalal Khan was son of Muhammad son of Sher son of Hayat, whereas Boota was shown as son of Jewan son of Mast son of Imam Bakhsh. It further indicates that Imam Bakhsh and Hayat alongwith one Mehnda are sons of Surkhru. .Pedigree‑table Ext.P.2 relates to the tribe of Katreel Jaskam of village Phagwari Galla, Tehsil Kahuta. Contents of pedigree‑table read with the statement of Muhammad Arif DW‑1 in cross‑examination clearly linked plaintiff Jalal Khan with Boota son of Jewan and both are shown to be descendants of one Surkhru. As for Daraz, father of Muhammad Wall, whose descedants, defendants claimed to be, he is not connected with Mast in Exh.P.2. Unexhibited copy of pedigree‑table prepared for the year 1979‑80 pertaining to Mauza Phagwari Galla produced by the defendants is available on the trial Court file. It does not assist the defence because it does not show that Muhammad Wall son of Daraz was connected in his ancestry with that of vendor. Boota son of Jewan. It is true that the plaintiff must succeed on the strength of his own case and not on any weakness appearing in defence, but it is equally true that the civil cases area decided on the rule of preponderance of evidence and on the basis of the entire evidence produced by both the parties and available on the record. In my opinion, it is not the law that if defence evident favours the plaintiff, it should be ignored from consideration altogether. Looked at thus, it is evident that plaintiff was collaterally related to Boota vendor and in order of succession had a preferential right. Defendants' relationship to the vendor is not established. Impugned judgments show that the Courts below were influenced to a large degree by inconsequential discrepancy in the name of the father of the appellant as given in the pedigree‑table and the plaint. In the pedigree‑table, name of the father of the appellant was recorded as "Muhammad", was whereas his true name was Muhammad Khan. This discrepancy, in my humble opinion, was immaterial when the defendant himself admitted that the name of the father of the plaintiff was Muhammad Khan. Omission on the part of the revenue officials in preparing revenue documents correctly should not be permitted to weigh against those who are shown to have no hand in the process. I must mention another fact before I advert to the next contention of the learned counsel for the respondents and that is that learned Additional District Judge is shown to have made a number of factual mistakes in the impugned judgment. For example, it is stated that "in the present case the appellant himself is completely silent as to his relationship with Jalal Khan. There is thus a glaring omission on his part. Learned counsel for the appellant has, however, replied that the document Exh.P.I was enough to indicate the father's name of the appellant. I, however, do not agree with this submission. The plaint shows that the name of the appellant's father is Jalal Khan, whereas Exh.P.l indicates that the name is Jalal only. The person mentioned in EXh.Pl. may well be some other and, therefore, this puts me into doubts." Pedigree‑table is marked Exh.P.2 and not P.1. Exh.P.l is the copy of sale mutation. Similarly, the plaint gives the name of plaintiff as Jalal Khan son of Muhammad Khan. From the extract taken from the impugned judgment of learned Additional District Judge, I have gained an impression that probably records were not diligently perused, otherwise, the mistakes highlighted above could not have come to be made. Be that as it may, right of pre‑emption on the basis of relationship, as alleged, was clearly established on record. Sale price, as observed, is not in dispute. Lastly, Mirza Anwar Baig, learned counsel for the respondents, submitted that since the suit was dismissed and so also the appeal, in view of the rule of law in Government of N.‑W.F.P. through Secretary, Law Department v . Malik Said Kamal Shah P L D 1986 S C 360 whereby the ground on which the plaintiff had claimed pre‑emption was declared repugnant to injunctions of Qur'an and Sunnah, competency of this Court to decree the suit is open to grave doubts. With respects to the learned counsel, I do not agree. Sale was made on 28‑7‑1983. Suit was instituted on 17‑7‑1984. Court of first instance gave decision on 23‑7‑1985. Appeal was dismissed on 7‑1‑1986. Judgment of Shariat Appellate Bench of the Supreme Court took effect from 31‑7‑1986. In view of the decided cases, pre‑emptor is obliged to maintain his superiority on three crucial stages. First is the date of sale, second is the date of suit and the third is the date of the decision by the trial Court. On these three dates, plaintiff's right of pre‑emption clearly subsisted and it also continued to subsist till the decision by the appellate Court. Decision of the Supreme Court took effect during the pendency of the second appeal. In my humble opinion plaintiff should not be made to suffer by the mistake of the Court, if it did not correctly appreciate the evidence on record and came to a wrong conclusion. It is the right of a litigant and the duty of the Court to come to a correct conclusion on the basis of evidence existing on the record. If the Court errs, it is the duty of the appellate Court to correct it and pass a judgment which the Court of first instance should have passed on the date when it gave its decision. Converse view is sure to cause immense prejudice to the litigant public. It is in this view of the matter that I have come to hold that the plaintiff's superior right of pre‑emption does not suffer evanishment on account of the judgment of Shariat Appellate Bench. In taking the aforesaid view, I am also supported by a Full Bench judgment of this Court in Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and other PLD 1987 Lah. 358.

7. For the reasons set out above, the appeal is allowed, impugned judgments and decrees passed by the learned Judges below are set aside and the plaintiffs suit for possession by pre‑emption in respect of the land is decreed to him, subject to payment of Rs.20,000 which he shall pay (minus Zare Panjum already deposited) within two months, failing which his suit shall stand dismissed with costs. Costs of this appeal (revision) shall be borne by the parties as incurred. A . A . /J‑17 / L Revision allowed.