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Civil Appeals Nos. 28 and 42 of 1965, decided on 6th December 1967.

(On appeal from the judgment and decree of the High Court of West Pakistan, Lahore, dated the 2nd May 1960, in Regular First Appeal No. 53 of 1954).

(a) Punjab Pre‑emption Act (I of 1913), Ss. 4 & 15(c), thirdly Sale partly in favour of khewat holders in estate and partly to strangers‑Sale transaction divisible with reference to shares of several vendees‑Principle recognised by High Court that if sale was divisible, vendees khewat‑holders would retain their rights against khewat‑holder pre‑emptors‑Test for divisibility(1) specifica tion of shares of vendees and (2) proportionate contribution to

sale price accepted by vendees' counsel Principle as well as test not challenged before Supreme Court‑Conclusions arrived at in High Court not interfered with in appeal.

(b) Civil Procedure Code (V of 1908), O. XIII, rr. 1 & 4 read with Evidence Act (I of 1872), S. 64‑Objection as to formal proof of document must be taken at "earliest point of time"‑Cannot be taken subsequently and "certainly not in appeal" ‑ Document marked as an exhibit becomes admissible in evidence.

The Code of Civil Procedure provides for the admission of documents and it is now well settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be taken subsequently and certainly not in appeal.

The record of the case did not disclose that any objection was taken by the pre‑emptors to the proof of a ruqqa (written by the vendor to the partition according to which shares of vendees were entered in the mutation) when it was produced in Court by the counsel for the vendees and marked as an exhibit. The document not having been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court. There could be no doubt as to the genuineness or admissibility of this docu ment, for, it was not disputed that it formed part of the mutation record and, indeed, was one of the documents upon which the mutation of sale was actually entered.

Gopal Das v. Shri Thakurji A I R 1943 P C 83 eel.

(c) Document‑Alleged to be incorrectly read and interpreted by High Court‑Objection taken in arguments before Supreme Court‑Document not printed or placed on record in appeal in Supreme Court‑Objection rejected.

(d) Practice ‑ (Supreme Court)‑ Concurrent finding of fact in civil matters‑Supreme Court will not interfere unless finding was based on "no evidence or upon misreading of evidence " (Finding that gift was not completed by delivery of possession up to a certain date).

(e) Punjab Pre‑emption Act (I of 1913), S. 4‑Divisibility of transaction of sale‑No presumption on basis of recital in deed that vendees took the property in specified shares, if consideration was mentioned as a lump sum‑[Maghi v. Narain and others 1914 P R 18 and Ram Nath and others v. Badri Naraia and others I L R 19 All. 148 approved].

M. Aslam, Advocate Supreme Court instructed by Muhammad Sardar Khan, Attorney for Appellants (in C. A. No. 28 of 1965).

Respondents Nos. 5, 6, 7 (i) to 7 (vi) and 8 to 19 : Ex parte (in C. A. No. 28 of 1965).

Iftikharul Haq Khan, Advocate Supreme Court instructed by Wali Muhammad , Senior Attorney for Respondents Nos. 1 to 4 (in C. A. No. 28 of 1965).

Iftikharul Haq Khan, Advocate Supreme instructed by Wali Muhammad, Senior Attorney for Appellants (in C. A. No. 42 of 1965).

Respondents Nos. 1 to 5 : Ex parte (in C. A. No. 42 of 1965). M. Aslam, Advocate Supreme Court instructed by Muhammad

Sardar Khan, Attorney for Respondents Nos. 6 to 13 (in C. A. No. 42 of 1965).

Date Of hearing : 6th December 1967.

HAMOODUR RA13MAN , J.‑

These two certificated appeals are against the same judgment of a Division Bench of the High Court of West Pakistan at Lahore in a regular first appeal.

The said first appeal arose out of a suit filed by Abdul Karim and three others, who are appellants in Civil Appeal No. 42 of 1965, for possession by pre‑emption of an area of 575 kanals and two marlas situated at Mauza Shahpur Lamman tehsil Shujahabad, district Multan.

They claimed to pre‑empt the sale of the above land by Ghulam Abbas Shah to Abdullah and 11 others, who are the appellants in Civil Appeal No. 28 of 1965, as khewat holders in the Mauza. The vendees were, it was alleged, strangers in this village but even if any one of them was found to be a khewat holder in Mauza he had, it was contended, lost his right of pre‑emption by joining with strangers in the sale in dispute.

The transfer of these lands, it is further alleged, had been effected by two several transactions, namely, (i) a mutation of an ostensible exchange in respect of 96/11502 share on the 27th of October 1951, and (ii) a mutation of a sale of the remaining 11406/ 11502 share on the 18th of February 1952, for a consideration of Rs. 18,000, although in reality the consideration was only Rs. 10,000. This device, it was stated, had been adopted in order to defeat the right of Abdul Karim and his co‑plaintiffs to pre‑empt the suit lands. The exchange was thus, according to those seeking pre‑emption, a wholly sham and fictitious transaction, for, in fact, Ghulam Abbas had sold the entire area.

This suit was contested by the vendee defendants alone (appellants in Civil Appeal No. 28 of 1965), who denied that the exchange was either a sham or fictitious transaction and claimed that by reason of the prior exchange, which was not pre‑emptible, they had become khewat holders in the Mauza, and, therefore, their subsequent purchase was not pre‑emptible, because, there after the right of the persons seeking pre‑emption was not, in any way, superior to their own right as such khewat holders. Certain other technical defences were also raised but it is not necessary now to enter into these questions.

The trial Court found that the exchange was not a bona fide transaction but was really a sale and that the two transactions were really one. It also found that the defendants No's. 3 to 12 in the suit, namely, Muhammad, Ghulam Qadir, Imam Bux son of Sonhara, Rahim Bux, Karim Bux, son of Kalu, Khuda Bux, Faiz Bux, Yousaf and Muhammad Ramzan, were khewat holders in the village. Defendants Nos. 3 and 4 had become such khewat holders on the basis of inheritance from their father who had died on the 20th of March 1952, and defendant No. 5 had acquired the same status by a purchase from Ghulam Abbas which was mutated on the 26th of October 1951. Defendants Nos. 6, 7, 8 and 12 had become such owners by virtue of a mutation of exchange dated the 1st of September 1950, and defendants Nos. 9 to 11, it appears, were shown as such owners in the village in the Jamabandis for the years 1943 to 1946.

Defendants Nos. 1 and 2 also claimed that they were khewat holders in the village on the basis of a gift said to have been made in their favour by Muhammad Khan. This mutation was sanc tioned on the 20th of November 1952, on the basis of a report dated the 1st of September 1952, but the trial Court held that as this gift had not been completed by delivery of possession before the institution of the suit out of which the present appeals arise, they were cot khewat owners in the village.

The right of the defendants Nos. 3 to 12 was, furthermore, held to have been lost. as they bad joined with them two strangers namely, defendants Nos. 1 and 2 in the transaction which was now sought to the pre‑empted. The plaintiffs in the suit were, therefore, held to have a superior right of pre‑emption as against all the defendants. Their suit for pre‑emption was, as such, decreed but upon payment of the price mentioned in the deed, namely, Rs. 18,000 on or before the 1st of August 1954.

From this decree the vendees went up in appeal to the High Court. The High Court also confirmed the finding that the exchange was a sham transaction and, therefore, the entire tran saction being a sale was pre‑emptible. It also agreed with the trial Court that the defendants Nos. 1 and 2 had not become owners in the village, as the gift in their favour had not been completed by delivery of possession before the institution of the suit. Having agreed with these findings the High Court then went on to consider as to whether the defendants Nos. 3 to 12, who were admittedly khewat‑owners in the village, had lost in status by joining with strangers, namely, defendants Nos. 1 and 2, in acquiring further lands in the same village.

According to the High Court the settled principle governing) this question was that if the sale was divisible then the different) vendees would retain their rights, that is to say, the sale to each vendee would be regarded as a separate sale. Upon this principle it became necessary next to consider as to whether the sale sought to be pre‑empted in the present case was so divisible or not. A Learned counsel appearing for the appellants in the High Court accepted the proposition that the sale would be divisible only if:

(1) the shares of the different vendees were specified and

(2) the different vendees had contributed proportionately towards the sale price.

In the present case the High Court found on the basis of a ruqqa (Exh. D. 27) written by the vendor Ghulam Abbas, which was on the record of mutation No. 1382 entered on the 18th of February 1952, relating to the transfer or sale of 570 kanals and 6 marlas of land for the consideration of Rs. 18,000, that this document established that the vendees had purchased the property in groups in the specified shares mentioned against their respective groups and that they had also contributed the con sideration money in proportion to their respective group shares.

The vendees, according to this document, were divided into six groups, and against each group was mentioned the area of land acquired by the group as well as the share acquired by that group out of the total number of shares purchased, and at the end it was stated that the amount of Rs. 18,000 had been received by the vendors according to the respective shares of the vendees. Groups 2 to 5 mentioned in this document were found to be con stituted of defendants, who were all khewat‑owncrs In the village but the first group was found to be constituted of defendants Nos. 1 and 2 along with three other defendants in the suit. This group had purchased only a 1 /7th share measuring 29 bighas and I kanal. The shares of the members of this group inter se were specified to be "ba‑hissa baraber" but there was nothing said in this document about the manner in which each member of this group had contributed the consideration, which was specified as a lump sum. Therefore, upon the principle accepted by the learned counsel appearing for the defendants in the High Court the first group had lost its right of pre‑emption. The suit for pre‑emption was, accordingly, decreed in respect of this area of 29 bighas and one kanal transferred to the first group ; but it was dismissed with regard to the remaining areas transferred to the other groups consisting of defendants Nos. 6 to 13 ; on payment of Rs. 3,691 being the proportionate price for this area out of the total price of Rs. 18,000.

The certificate was granted in this case on the 12th June 1961, on the basis of valuation alone under the provisions of the abrogated Constitution. Both sides, it appeals, are dissatisfied with the decision of the High Court. The pre‑emptors because they have been granted a decree only for the pre‑emption of 29 bighas arid 1 kanal and the transaction has been held to be divisible group wise. The vendees, because, the gift in favour of the defen dants Nos. 1 and 2 has been held to have been incomplete on the date of the institution of the suit.

Neither party now challenges the finding that the exchange was a sham transaction or that the consideration was Rs. 18,000, but the appeal of the pre‑emptors is pressed only on the point of divisibility of the transaction. It is contended on their behalf that the sale was not divisible and that all the vendees should have been held to have lost their right of pre‑emption. It is urged on their behalf that the finding of the High Court as to the divisibi lity of the transaction was based on. no evidence at all, as the ruqqa (Exh. D‑27) was not admissible in evidence, as it had not been legally proved.

It appears that on the 11th of March 1954, after closing his oral evidence the learned counsel appearing for the vendees in the trial Court filed copies of mutations (Exhs. D‑4 to D‑13), copies of Jamabaneis (Exhs. D‑14 to D‑21); a copy of the khasra girdawari (Exh. iD. 22) and copies of mutations Bachh (Exhs. D‑23 to D‑26), but stated that he will produce later a copy of another letter included in the records of the mutation No. 1382. This copy was actually produced on the 9th of April 1954, and was marked as Exh. D‑27 without any objection from the plaintiffs' side.

Notwithstanding this the trial Court held that this document was admissible due to want of formal proof, even though the mutation of the sale sought to be pre‑empted (Exh. D‑4) was actually entered on t6:e basis of Lxhs. D‑1 and D‑27. Exh. D‑1 is a report by Karim Bux (defendant No. 7) to the Patwari. Exh. D‑27, as already stated, is a letter written by the Ghulam Abbas to the officer in charge Sub‑Telisil Jalalpur. The trial Court, however, was of the view that either the Patwari or Ghulum Abbas, the vendor, should have been called to prove this document, for, without such formal proof it could not be con sidered to be properly on the record.

The question is whether the trial Court was right in so holding, particularly, since this document had been admitted without objection. The Code of Civil Procedure provides for the admission of documents and it is now well settled that if objection to the formal proof of a document has not been taken at the earliest point of time it cannot be take subsequently and certainly not in appeal. As observed by the Judicial Committee of the Privy Council in the case of Gopal Dag v. .Shri Trakurii (A I R 1943 P C 83) where the objection to be taken is not that the document is in itself inadmissible at that the mode of proof put forward is irregular or insufficient it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record, A party cannot lie by until the case comes before a Court of appeal and these complain for the first time of the mode of proof. A strictly ironical proof might or might not have been forthcoming had it been insisted on at the trial." The record in the present case does not also disclose that any objection was taken by the pre‑emptors to the proof of this document when it was produced in Court by the counsel for the) vendees and marked as an exhibit. The document not having) been objected to must be deemed to have been admitted and, as such, the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. The document having been marked as an exhibit without objection became admissible in evidence and was rightly taken into consideration by the High Court. There can be no doubt as to the genuineness or admissibility of this document, for, it is not disputed that it forms part of the mutation record and, indeed, was one of the documents upon which, the mutation of sale was actually entered. The pre‑emptors have also received some benefit from this document to the extent that the share sold to group No. I has been held to be indivisible, because, the proportion in which the price was contributed by the members of this group had not been specified therein, although it was stated that the vendees of this group had also purchased "ba‑hissa baraber", i.e. in equal shares. The pre‑emptors cannot, therefore, now be allowed to repudiate this document which forms the basis of the mutation in their own favour.

It is next contended that the High Court has grievously misread this document but this argument is again not available to the vendees, for, neither has any ground been taken to challenge the reading of the document by the High Court nor has it even been printed or placed on the record of this appeal. In this view of the matter it is neither possible for us to say whether the document has been incorrectly read and interpreted by the High Court, nor is it possible for us to say whether the document does or does not specify the amounts of the consideration contributed by the individual purchasers in each group. It was incumbent upon the party seeking to challenge the High Court's interpreta tion of this document to place it on the record, for, without it there is nothing on the record to sustain this argument. The question raised cannot be decided in vacuo.

For these reasons we think that the appeal of the pre‑emptors must fail.

Now as for the appeal of the vendees the only question urged is whether the finding that the gift in favour of the defendants Nos. 1 and 2 had not been completed before the institution of the suit out of which the present appeal arises was correct or not. This, of course, is a concurrent finding of fact. Both the Courts below have held that possession of the gifted lands had not been shown to have been made over to the donees prior to the institution of the suit. This Court does not interfere with concurrent findings of fact in civil matters, unless that finding is shown to be based on no evidence or upon a misreading of the evidence. No such error has been pointed out to us. 1t cannot, therefore, be accepted that the finding as to the incomplete nature of the gift was open to any challenge at this stage.

The next contention urged on behalf of the vendees is that even with regard to the share transferred to group No. 1 the High Court was, on its own showing, wrong in holding that there was no specification of the shares, since the document did mention that the purchasers of this group were purchasing "ba‑hissa baraber" and that by itself was sufficient to raise the presump tion that the payment of the price must also have been made separately in proportion to the respective share of each member of the group.

This argument cannot, however, be accepted in the absence of any proof that payment of the price was made by the various vendees of this group in specified amounts. There can be no p presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the consideration was mentioned as a lump sum.

Learned counsel has, of course, not been able to cite any authority in support of his view but there are two decisions at least, one of the Lahore High Court and another of the Allahabad High Court, to the contrary. Thus in the case of Maghi v. Narain and others (1914 P R 18) a Division Bench held that where the purchase money for a sale is paid in a lump sum without specification of the amounts paid by each of the vendees, the transaction must be regarded as indivisible, though the shares to be taken by the various vendees may have been specified in the deed. Similarly in the case of Ram Nath and others v. Badri Narain and others (1 L R 19 All. 148) a Full Bench of the Allahabad High Court remanded the case for the trial of the following issue:

"What was the true price paid by each vendee "

This was done, because the deed of sale, in that case, showed only the shave sold to each of the five vendees but gave no specification of the proportion: u: which the purchase money was paid by the respective vendees, The purchase money, according to the deed, as in the present case, was stated as a lump sum for the whole area sold.

We are of the opinion that these decisions correctly enunciate the law on this point and we approve of the same. This appeal too must, accordingly, also fail.

The result, therefore, is that both these appeals are dismissed but we make no order as to costs in either case.

A. H. Appeal dismissed.

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