Find a Lawyer

Regular First Appeal No. 189 of 1978, decided on 21st April, 1986.

---S. 15--Qanun-e-Shahadat Order (10 of 1984), Art. 72--Right of pre-emption, proof of--Pedigree-table would reveal that pre-emptors were related to vendors through common ancestor, although line consisting forefathers of vendor and that of pre-emptors to common ancestor was not drawn through inadvertence--Copy of mutation proving relationship of pre-emptors and vendors through common ancestor Right of pre-emption of pre-emptors was, therefore, proved through documentary evidence.

---S. 15--Expression "Biradari bhai", connotation of--Expression "Biradari bhai", held, would not mean caste fellow but was equivalent to collateral--Such relationship having been conceded by vendees, apart from documentary evidence, oral evidence produced by pre-emptors would alone be sufficient to prove right of pre-emption. --[Words and phrased].

---S. 19--Qanun-e-Shahadat Order (10 of 1984), Art. 70--Notice to pre-emptor, proof of--Independent witnesses corroborating fact of notice to pre-emptor before sale while in rebuttal solitary statement of pre-emptor denying such notice-- Uncorroborative statement of pre-emptor, held, would pale into insignificance in face of overwhelming evidence on Tact of notice to pre-emptor before sale and refusal by pre-emptor to exercise such right--Waiver of right of pre-emption was established in circumstances.

---S. 21--Qanun-e-Shahadat Order (10 of 1984), Art. 129--Pre-emption suit--Improvements of land--Proof of--In absence of relevant copies of Jamabandis and Khasra Girdawaris on record showing comparative position of land at time of sale and at time of recording of evidence, fact of improvement of land after sale, held, could not be taken into consideration.

---S. 96--Punjab Pre-emption Act (I of 1913), S. 21--Appellate jurisdiction, exercise of--Finding of trial Court relating to superior right of pre-emption being based on documentary and oral evidence was maintained while finding on waiver, however, was reversed by High Court in exercise of appellate jurisdiction, resulting in dismissal of suit of pre-emption.

Ch. Hamid-ud-Din for Appellants.

Zafar Pasha Chaudhary for Respondent.

Date of hearing: 21st April, 1986.

This appeal has arisen out of a suit brought by the respondent, Shah Muhammad, against the appellants, Muhammad Siddique and another, for possession of certain land through pre-emption. The land was sold by nine persons, including Mst. Jannat Bibi. It was held by the Senior Civil Judge, Sheikhupura, who decided the suit, that the respondent did not have right of pre-emption qua one Kanal 17 Marlas and 61/2 Sarsais of land sold by Mst. Jannat Bibi. He, therefore, decreed the suit to the extent of the rest of disputed land. His judgment and decree have been challenged by means of the instant appeal,

2. Learned counsel for the appellants assailed findings of the learner trial Court on issues Nos. 1,5 and 7 only. These issues read as follows:-

(1) Whether plaintiff has a superior right of pre-emption

(5) Whether plaintiff has waived his right of pre-emption

(7) Whether defendants have made improvements upon the suit land.

If so, of what value and with what effects

3. On issue No. 1, which is in respect of the right of pre-emption, it was held by the learned Senior Civil Judge that the respondent had superior right of pre-emption inasmuch as he was related to the vendors, other than Mst. Jannat Bibi, hereinafter referred to as the vendors. In this connection, reliance was placed by him on copies of pedigree tables, Exhs. P. 4 and P. 5 and copy of mutation, Exh.P.6. It was also pointed out by him that it was conceded by the learned counsel for the parties that the respondent was a reversioner of the vendors.

4. It was contended by learned counsel for the appellants that according to pedigree-table, Exh. P. 4 the respondent was not related to the vendors because there was nothing to show that his ancestor, namely, Lakhu was related to the ancestors of the vendors, namely, Wahab and Makhan. It was also submitted by him that there was no oral evidence of the respondent on issue relating to right of pre-emption except his own statement to the effect that the vendors were his According to learned counsel for the appellants, by making the above statement it was conveyed by the respondent that his caste and that of the vendors was the same. It was maintained by learned counsel for the appellants that the said statement of the respondent did not prove his relationship with the vendors.

5. On the other hand, it was argued by the learned counsel for the respondent that Shadoo, Wahab, Makhan, Lakhoo and Massoo were sons of Boota but while preparing copy of pedigree-table, Exh. P. 4 line connecting Wahab with Boots was not drawn, through inadvertence.

In this connection, he invited our attention to another copy of the said pedigree-table which is annexed to C . M . No. 6189-C / 79. This C . M . was filed by the respondent for permission to produce the said copy of the pedigree-table as additional evidence. It was also pointed out by learned counsel for the respondent that the relationship of the respondent with the vendors was not only conceded by Muhammad Siddique appellant, while appearing as D.W. 5 before the learned trial Court, but also by learned counsel for the appellants at the time of arguments before the said learned Court.

6. A perusal of copy of pedigree-table, Exh. P. 4 would reveal that names of Shadoo, Wahab, Makhan, Lakoo and Massoo appear together in the same line under the name of Boots. Lines have been drawn connecting Shadoo, Makhan, Lakhoo and Massoo with Boota but such a line is not there in case of Wahab. It appears that line connecting Wahab with Boota was not drawn through oversight. In view of the placement of names of Shadoo, Wahab, Makhan, Lakhoo and Massoo, however, we entertain no manner of doubt that they were all sons of Boots. Thus, according to copy of pedigree-table, Exh. P. 4, the vendors are related to the respondent. Copy of pedigree-table, Exh. P. 5 and copy of mutation, Exh. P. 6 also support the respondent's plea of relationship with the vendors. We do not agree with learned counsel for the appellants that the expression used by the respondent in his statement as P.W. 2 means caste fellow. In our opinion, he used the said expression as an equivalent of (collateral). There is clear admission of Muhammad Siddique appellant as D.W. 5 that the respondent is related to the vendors This position was also conceded by learned counsel for the appellants before the learned Senior Civil Judge. In the circumstances, without taking into consideration copy of the pedigree-table sought to be produced by the respondent as additional evidence, we find that there is ample material on the record supporting the conclusion of the learned trial Court that, being related to the vendors, the respondent has a superior right of pre-emption. We, therefore, affirm his finding on the first issue.

7. This brings us to the issue of waiver (issue No. 5) on which finding of the learned trial Court was also challenged by learned counsel for the appellants. The appellants examined as many as five witnesses who deposed that the land was offered to the respondent for sale but he declined to get it. Out of these witnesses, Nasir (D.W. 4) has been an employee of the appellants while Muhammad Siddique (D.W. 5) is one of the appellants. None of the other witnesses of the appellants is interested one. Learned counsel for the respondent could not point out any discrepancy in their statements. We believe that witnesses who have corroborated the statements of Nasir and Muhammad Siddique are independent persons. In rebuttal, there is the solitary statement of the respondent as P.W. 2 but he, being a party, is an interested person. In any case, his statement pales into insignificance in the face of overwhelming evidence of the appellants. Regultantly, we rely on the appellants' evidence and hold that the respondent had waived his right of pre-emption. Finding of the learned trial Court as issue No. 51 is, therefore, reversed.

8. Lastly, we have to look into the finding of the trial Court on issue No. 7 which deals with the question of improvements. The appellants' plea is that they spent a sum of Rs.1,00,000 on levelling the disputed land and removing bushes there from. On the issue of improvements the appellants produced three witnesses, including Nasir (D.W. 2) and Muhammad Siddique (D.W. 5). As explained above, Nasir and Muhammad Siddique are interested witnesses. The appellants did not pace on the record documentary evidence regarding payment of the aforementioned huge amount of Rs.1,00,000. They have also not produced copies of the relevant Jamabandis and Khasra Girdawaris showing comparative position of land at the time of sale and at the time of recording of evidence. We are, therefore, not impressed by the appellants' evidence on the issue of improvements. Consequently, finding of the learned trial Court on that issue is not disturbed

9. While maintaining finding of the learned trial Court to the effect that the respondent has a superior right of pre-emption it has been held by us that he had waived his right of pre-emption. His suit is; therefore, liable to be dismissed. This appeal is, accordingly, accepted, judgment and decree of the learn I trial Court are set aside and the suit of the respondent dismissed. Parties are, however, left to bear their own costs all through.

A.A Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.