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‑‑‑O.XVII, R.3‑‑Pre‑emption suit‑‑Plaintiff had closed his affirmative evidence and it was only to the extent of plaintiff's own statement that the right to examine him later was reserved‑‑Documents produced in affirmative evidence included copy of record of rights which showed that the plaintiff was an owner in the estate‑‑No objection was raised before the Trial Court that respondents could not be called upon to produce evidence because the plaintiff had not yet closed their evidence‑‑Held, if the respondents had led their evidence, and then the plaintiff had tried to examine himself or led any other affirmative evidence, he could then at that stage object to the appearance of the plaintiff into the witness‑box and might be that at that stage,, his objection was upheld. by the Trial Court‑‑No prejudice was caused to respondents for they did not lead any evidence; and in any case, the occasion for raising objection to the plaintiff's appearance into the witness‑box in affirmative evidence would have arisen, if they had closed, their evidence, and that occasion never arose.‑ [Evidence].

Khalil Ahmad v. Australasia Bank 1979 C L C 494 ref.

‑‑‑O.XVII, R.3‑‑West Pakistan Land Revenue Act (XVII of 1967), S.52‑‑Pre‑emption suit=‑Jamabandi‑‑Evidentiary value‑‑Entries not based upon a mutation‑‑Presumption of truth was attached to jamabandi under S. 52, West Pakistan Land Revenue Act 1967‑‑Entries being the best proof of the plaintiff's ownership in the estate, his own appearance into the witness‑box would not have made any difference.

Tehmas Khan etc. v. Mst. Bastari P L D 1985 Pesh. 86, ref.

‑‑‑S. 15‑‑Pre‑emption suit‑‑Effect of Supreme Court Shariat Bench decision in Said Kamal Shah's case P L D 1986 S C 360‑‑Decree in the suit having been passed on 24‑7‑1986, suit was not hit by rule laid down in Said Kamal's case.

Said Kamal Shah's case P L D 1986 SC 360 ref.

Mirza Manzoor Ahmad for Petitioners.

This civil revision under section 115 of the Code of Civil Procedure by Pir Bakhsh and four others, vendees‑defendants, in a suit for possession by pre‑emption has arisen in the .following circumstances.

2. The petitioners purchased the land in suit from Mulazam Hussain and Wazir Hussain, vendors, for an ostensible sale price of Rs.50,000 by means of a mutation of sale dated 24‑12‑1981. Barkhurdar, respondent, sued to pre‑empt the sale on the basis of his being a co‑sharer and khaiwatdar; according to him, the land was sold for Rs.30,000. The petitioners contested the suit by filing a written statement and on the pleadings of the parties, ten issues were formulated. On 16‑4‑1984, the plaintiff tendered in evidence a number of documents, including a copy of record of rights Exh,P.6 and closed his affirmative evidence, saying that the plaintiff would examine himself in affirmative as well as rebuttal evidence later. The suit was then adjourned for .*the petitioners, evidence after they had been given numerous opportunities to produce their evidence, their side of the case was closed under 0 . 17 , R . 3 of the Code of Civil Procedure by the learned Civil Judge's order dated 24‑7‑1986. As there was no rebuttal, the learned Civil Judge proceeded to decree the suit on the basis of the sale price mentioned in the mutation, viz; Rs.50,000.

3. The petitioners preferred an appeal which was also dismissed by the learned Additional District Judge by his judgment dated 15‑3‑1987.

4. Learned counsel for the petitioners did not try to question the order of the learned Civil Judge dated 24‑7‑1986, in so far as it closed the petitioner's evidence under Order 17 Rule 3 of the Code of Civil Procedure. The contention made was that the learned Civil Judge was not competent to direct. the petitioners to produce evidence unless the plaintiffs had first closed his affirmative evidence and as the plaintiff had not done so, the learned Civil Judge was not competent to invoke the provisions of 0. 17 R. 3 to close the petitioner's evidence. In support of this contention, learned counsel for the petitioners relied upon Khalil Ahmad v. Australasia Bank 1979 C L C 494. 1 regret my inability to give effect to this contention. As seen above, the plaintiff had, on 16‑6‑1984, closed his affirmative evidence; it was only to the extent of the plaintiff's own statement that the A right to examine him later was reserved. The documents produced in affirmative evidence included the copy of record of rights (Exh.P.6) which showed that the plaintiff was an owner in the estate. At no stage of the proceedings before the learned Civil Judge was any

objection raised that the petitioners could not be called upon to produce evidence because the plaintiff had not yet closed his evidence. In any case if the petitioners had led their evidence, and then the plaintiff had tried to examine himself or led any other affirmative evidence, he could then at that stage object to the appearance of the plaintiff into the witness‑box, and may be that at that stage, his objection was upheld by the learned Civil Judge. As regards Khalil Ahmad's case, it was, no doubt, held that "if the plaintiff has to appear and give evidence in affirmative and also in rebuttal, the proper course would seem to be that he should give proper evidence before the defendant is called upon to lead evidence and such plaintiff can be allowed to make the supplementary evidence in rebuttal to the evidence of defendant also. I am not conscious of the practice that ,prevails in subordinate Courts of exercising plaintiff's evidence in affirmative till after defendant has closed his evidence and of allowing the plaintiff to give his evidence in affirmative and rebuttal thereafter. This practice is not in accordance with law and is likely to cause prejudice to the . defendant. That being so, such practice cannot be approved.. "Here, there was no question of any prejudice to the petitioners, for they did not lead any evidence; and in any case, E the occasion for raising objection to the plaintiff's appearance into the witness box in affirmative evidence would have arisen, if they had closed their own evidence, and that occasion never arose.

5. Learned counsel then argued that the order in question dated 24‑7‑1986 by which the suit was decreed, is not a judgment, for it gives no finding on each issue; that there was no evidence in support of the plaintiff's right of pre‑emption and that the order dated 24‑7‑1986 does not indicate the basis on which the plaintiff's suit was decreed. In view of the fact that the petitioners led no evidence whatsoever, the only point for consideration before the learned trial Judge was whether the plaintiff had or had no right of pre‑emption. The plaintiff had produced a copy of Parcha K,hatoni Exh.P.6 in proof of his being an owner in the estate and undoubtedly that document proved that fact. The mere omission of the learned Civil Judge to say that plaintiff's right of pre‑emption was proved because he was an owner in the estate was, therefore, of little consequence. Learned counsel for the petitioners advanced the view that Exh.P.6 by itself was. no evidence of the plaintiff being an owner in the estate and. as the plaintiff himself had not entered into the witness box, his suit should have been dismissed. In support of his view point, learned counsel relied upon Tehmas Khan etc. v. Mst. Bastari P L D 1985 Pesh. 86. That was, however, a case in which entries of the 'Jamabandi' were based upon a mutation and the real question was whether the entries of a mutation were evidence of title. It was held that the proceedings for the mutations of names are not judicial proceedings in which the title to and the proprietary rights in immovable property are determined. They are in the nature of fiscal inquiries instituted in the interest of the State for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immovable property may be put into occupation of it with greater confidence that the revenue for it will be paid. Here, the entries of Exh. P.6 were not based upon a mutation. A presumption of truth was attached to them under section 52 of the Punjab Land Revenue Act, 1967, and the learned trial Judge was, therefore, . right in relying upon them to hold that the plaintiff had a right of pre‑emption. As the entries of Exh.P.6 were the best proof of the plaintiff's ownership in the estate, I do not think that his own appearance into the witness box would have made any difference'.

6. Learned counsel then contended that the question whether in view of the Supreme Court's decision in Said Kamal Shah's case PLD 1986 S C 360 the suits like the present could be decreed is before the Supreme Court and leave to appeal has been granted to consider that question. A Full Bench of this Court, has however, held that so far as the suits instituted before the law as laid down in Said 1 Rama' Shah's case came into the effect are concerned, they were governed by the law as it stood before 31‑7‑1986. The decree in this suit was passed on 24‑7‑1986. I, therefore, hold that in view of the' Full Bench's decision of this Court, this suit was not hit by the rule laid down in Said Kamal's case. The revision petition is dismissed in

limine.

M . B . A . /P‑26/L

1 Petition dismissed.

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