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Petitioner: Altaf Ahmad VS Respondent: Muhammad Anwar and 4 others
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Altaf Ahmad vs Muhammad Anwar and 4 others Case No.: Civil Revision No. 599-D of 1983 Date of Judgment:2022-12-12 Reported As: 2023 YLR 1972 Result: Revision petition dismissed
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J.---Through this Civil Revision filed under section 115 of Code of Civil Procedure, 1908, petitioner has called in question the validity and legality of judgment and decree of learned Appellate Court dated 17.04.1982 whereby while accepting appeal of the respondents, petitioner's suit for possession through pre-emption was dismissed. 2. Shorn of unnecessary details, plaintiff (hereinafter referred to as petitioner) instituted a suit for possession through pre-emption against the defendants (hereinafter referred to as respondents) qua suit land measuring 36 Kanals, 11 Marlas situated in Khata No.113 of Chak No.187/EB (Gaggo Mandi) Tehsil Burewala, District Vehari. Respondents contested the suit by filing written statement in contrast whereby they raised certain legal as well as factual objections. Owing to the divergent pleadings of the parties, learned Trial Court formulated necessary issues and invited them to produce their respective evidence. After recording evidence of the parties pro and contra, oral as well as documentary, suit was decreed vide judgment and decree dated 20.01.1982. Feeling aggrieved, respondents preferred an appeal which was allowed by the learned Appellate Court via judgment and decree dated 17.04.1982 and resultantly the suit of petitioner was dismissed. Petitioner challenged the verdict of learned appellate Court by preferring instant Civil Revision which was dismissed by this Court on 30.05.2014. Being dissatisfied, petitioner challenge the verdict of appellate Court as well as this Court before august Supreme Court of Pakistan by preferring Civil Petition for Leave to appeal, where the leave was granted and was converted into Civil Appeal and the Hon'ble Supreme Court of Pakistan was pleased to allow the same while remanding the matter to this Court via judgment dated 31.01.2022 with the following observations:
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"By consent it is ordered that the impugned judgment dated 30.05.2014 is set aside and the matter is remanded to the learned High Court. The determination made by the learned appellate court on 17.04.1982 in relation to issue No.8 is to the effect that the appellant/plaintiff did not enjoy superior right of pre-emption on account of being non-proprietor in the estate. This finding has been challenged by the appellant in ground No. (i) of his civil revision before the learned High Court, but the said finding has neither been considered nor determined by the learned High Court in the impugned judgment dated 30.05.2014. Learned counsel for both the parties agreed that the finding with respect to the locus-standi of the appellant goes to the root of the matter. Consequently, the same needs to be determined, after considering all the material available on record. While doing so, learned High Court shall decide whether issue No.4, at all requires fresh determination...." 3. I have heard learned counsel for the parties at length and perused the record with their able assistance. 4. Perusal of record reveals that instant matter has been remanded by the august Supreme Court of Pakistan with the mandate to give findings on issue No.8 and while doing so, to decide whether issue No.4 at all requires fresh determination. 5. After remand from the august Supreme Court of Pakistan, petitioner moved an application (C.M. No.1776/ 2022) seeking permission for production of additional evidence. Respondents vehemently opposed said application by filing its contesting written reply. 6. From perusal of said application, it appears that petitioner intends to produce following documents:-- (i) Attested copy of Register Haqdaran Zamin of Khewat No.134/113 for the years 1977-78 Chak No.187/EB, Tehsil Burewala District Vehari. (ii) Attested copy of mutation No.268 dated 30.09.1975. (iii) Attested copy of mutation No.269 dated 30.09.1975. (iv) Attested copy of mutation No.335 dated 28.12.1977. 7. Learned counsel for the petitioner maintains that register Haqdaran Zamin for the year 1973-74 regarding Khewat No.113 Chak No.187/EB is already on file as Exh.P-2 and in said document mutation No.268 by which proprietary rights were conferred upon Fazal Dad son of Hashim by the Government, mutation No.269 regarding sale of land 100 kanals 02 marlas by Fazal Dad in favour of petitioner and Ameer Sultan vendor, mutation No.335 regarding sale of land by Ameer Sultan in favour of Muhammad Anwar etc., and mutation No.339 regarding sale of land by Ameer Sultan in favour of Barkat Ali etc., are duly mentioned but the same were not produced at the time of recording evidence of the plaintiff. He further maintained that said documents are very much necessary to reach the correct decision of case and be allowed to produce as additional evidence in the interest of justice. 8. While controverting the arguments advanced on behalf of the petitioner, learned counsel for the respondents maintains that the application is not maintainable as it has been filed with mala fide intention and to fill up inherit lacunas or defects in evidence which is not permissible under the law; that the application is not tenable at such a belated and revisional stage; that the petitioner has not approached this Court with clean hands; that the petitioner failed to give any reason for non- adducing the evidence before the learned trial Court; that there is no evidence on record which suggests that said documentary evidence was not available to the petitioner at the time of leading affirmative evidence and prayed for dismissal of the application. 9. Heard. Record perused. 10. Petitioner instituted the suit 44 years ago on 07.12.1978 and his evidence was recorded in the year 1980-81. The suit was decreed vide judgment and decree dated 20.01.1982. Appeal against said judgment and decree was accepted vide judgment and decree dated 17.04.1982, against
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which the instant revision is pending since 1983. Petitioner filed instant application on 14.06.2022 after the lapse of almost 44 years. Order XLI Rule 27, C.P.C. envisaged certain circumstances when additional evidence can be adduced. It would be appropriate to reproduced Rule 27 of Order XLI, C.P.C., which reads as under: - "27. Production of additional evidence in Appellate Court.--- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the Appellate Court, But if--- (a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, of (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission". Said Rule has been amended in the following terms vide Notification No.250/Legis/XI-Y-26 dated 23.10.2020 and came in to force on 01.11.2020. "27. Production of additional evidence in Appellate Court:---The Appellate court, after recording reasons, allow the parties to an appeal to produce additional evidence, whether oral or documentary: (a) if the Court from whose decree the appeal has been preferred, has refused to admit evidence which ought to have been admitted. (b) the Appellate court, on being satisfied that the additional evidence has been available but could not be (sic) ns beyond the control of the party seeking its production; or (c) the Appellate court itself requires any such evidence so as to enable it to pronounce a judgment." 11. Keeping in view the said provision of law, it appears that first situation is not attracted because the learned trial Court never refused to admit the said documents in evidence. In second circumstance, the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject to general decision of superior Court wherein it has been held that when appellate Court finds itself unable to pronounce judgment owing to lacunas or defects in the evidence as it stands it may admit additional evidence but a party to the appeal cannot be allowed to produce additional evidence so as to patch-up the weaker parts of its case or fill-up omissions, The scope of Order XLI, Rule 27, C.P.C. is limited as it contemplates very few circumstances or conditions in which the appellate Court may allow a party to the appeal to produce additional documentary evidence. Admittedly, the case of the petitioner does not fall under Rule 27, C.P.C., because there is no material on record which suggests that the said documents have been available but could not be produced for reasons beyond the control of petitioner. Petitioner failed to satisfy the Court with regard to non-production of said documents at relevant time. 12. Order XLI, Rule 27, C.P.C. does not envisage filling-up the lacuna left by a party in evidence before trial Court, as held by august Supreme Court of Pakistan in "Bashir Ahmad v. Ahmad-ul-Haq Siddique" (1985 SCMR 1232). In another case titled "Muhammad Yousaf v. Mst. Maqsooda Anjum and others" (2004 SCMR 1049) the august Supreme Court of Pakistan held that additional evidence could not be received to fill-up lacuna or provide for deficiency in the case of a party. In case titled as "Shtamand and others v. Zahir Shah and others" (2005 SCMR 348) the august Supreme Court of Pakistan refused to allow the plaintiff to produce additional evidence who filed application after nine years. In another case tilted
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as "Syed Muhammad Hassan Shah and others v. Mst. Binat-e-Fatima and another" (PLD 2008 Supreme Court 564) it was held that the power available under Order XLI, Rule 27, C.P.C. is not meant to cater the needs of a particular party but is available for exercise by the appellate Court to appropriate cases where need for taking additional evidence appears essential to the Court for just decision of the case. In a recent judgment of august Supreme Court of Pakistan in case tilted "Muhammad Siddique v. Gul Nawaz and others" (2021 SCMR 1480) held as under: - "As to the production of additional evidence, the powers of the appellate court under Order XLI, Rule 27, C.P. C. are not absolute but are structured by the provisions of rule 27 itself and could only be exercised in cases where (i) the court whose decree is under appeal has refused to admit a piece of evidence which ought to have been admitted or (ii) the Appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or (iii) for any other substantial cause and that too after recording reasons. However, it is to be kept in mind that Rule 27 does not envisage providing of second opportunity to adduce evidence or to rectify the inadvertence or negligence of a party." 13. The petitioner failed to give any plausible reasons for non-production of the said documents before the learned trial Court. There is no reasonable ground available to the petitioner for non- production of the said documents during the trial of the suit; and, though he was conscious of the questions involved in the suit, yet he did produce the said documents. No explanation was offered that why the evidence which was sought to be produced before this Court for the first time was not tendered before the trial Court. Discretion of Court should not be exercised in favour of a person who had remained indolent for years and such person should suffer the consequences of his failure. Petitioner failed to explain that why any step to produce evidence in question was not taken for so many years. In view of lack of vigilance on the part of the petitioner which lasted for years together, it was not a fit case for exercise of powers by this Court in his favour under Order XLI, Rule 27, C.P.C. Even otherwise said documents are not required by Court to decided the lis on merits and to reach a just conclusion. 14. For the foregoing reasons this application has no merits, hence, dismissed. 15. Petitioner in his plaint pleaded that he is owner in possession of Khata No.113, Khasra No.31, killa No.15/2, 16, 17, 24 and 25 measuring 30 kanals and claimed his superior rights on the basis of custom of pre-emption as well as being co-sharer in the Khewat, whereas the respondents in their written statement negated the stance of petitioner with regard to his co-sharer in the Khewat and the custom of pre-emption in the locality. Learned Trial Court in the light of said controversy framed issue No.8 as under: ISSUE NO.8. Whether the plaintiff has got a superior right of pre-emption as against defendants/vendees? OPP. This issue was decided in favour of petitioner by the learned Trial Court, whereas, appellate Court decided it against the petitioner and reversed the findings of learned Trial Court. Onus to prove of this issue was placed on the shoulders of petitioner. To discharge this onus, petitioner Altaf Ahmad appeared as P.W.1 and produced Nazir Ahmad as P.W.2. In documentary evidence, he produced copy of Khasra Girdawri as Exh.P.1, copy of record of rights for the year 1972-73 as Exh.P.2 and copy of registered sale deed No.1364 dated 12.12.1977 as Exh.P.3. 16. Petitioner while recording his statement as PW-1 maintained that he is co-sharer in the joint khatta where suit property was situated. Exact deposition is as under: -
During cross-examination he suggested it incorrect that he is not share-holder in the joint khetwat. Exact deposition is as under:-
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Petitioner produced copy of Khasra Girdwari as Exh.P-1 which reveals that petitioner is in possession of Khasra Nos.31, 15/2, 16, 17, 24 and 25. Petitioner produced copy of record of rights for the year 1972-73 as Exh.P-2. Perusal of cultivation Column No.4, meant for name of cultivator of said Exh.P-2, name of Fazal Dad son of Hashim was present there whereas petitioner Altaf Ahmad was mentioned as tenant at will and in the ownership column, "Provincial Government" was recorded as owner. From reading plaint along with copy of record of right for the year 1972-73 (Exh.P-2) it appears that Khewat No.113, Khatoni Nos.283 to 286 consisted of land measuring 100 kanals 02 marlas with specific Khasra numbers detailed as under:-- Khasra No.31: 15/2 measuring 04 kanals, 16 measuring 08 kanals, 17 measuring 04 kanals, 24 measuring 06 kanals, 25 measuring 08 kanals which belongs to petitioner. Khasra No.58: 4/4 measuring 08 marlas, 4/5 measuring 03 kanals 02 marlas, 5/1 measuring 01 kanal, 5/3 measuring 06 kanals 07 marlas, 6 measuring 08 kanals, 7/2 measuring 07 kanals 15 marlas, 11/1 measuring 07 kanals 08 marlas, 12 measuring 08 kanals, 13 measuring 09 kanals, 14 measuring 05 kanals 16 marlas, 19 measuring 04 kanals 04 marlas, 20/1 measuring 06 kanals 14 marlas, 5/4 measuring 13 marlas, 26 measuring 10 marlas, 11/2 measuring 12 marlas, 20/2 measuring 13 marlas. Petitioner produced registered sale deed No.1364 dated 12.12.1977 as Exh.P-3 wherein it appears that vendor namely Ameer Sultan sold specific Khasra number detailed as Khasra Nb.58 killa No.11/1 measuring 07 kanals 08 marlas, -No.11/2 measuring 12 marlas, No.12 measuring 08 kanals, No.13 measuring 09 kanals, No.19 measuring 04 kanals 04 marlas, No.20/1 measuring 06 kanals 14 marlas and No.20/2 measuring 13 marlas (07 parts/Qitaats) total land measuring 36 kanals 11 marlas for a consideration of Rs.220,000/- to Muhammad Anwar, Liaqat Ali sons of Haji Ali Muhammad, Abdul Majeed son of Haji Muhammad Ismail, Nazir Ahmad son of Haji Aziz-ud-Din equal in share with regard to 3/4 shares and Sajjad Amjid son of Abdul Majeed remaining 1/4 share. 17. Petitioner claimed his superior right on the basis of co-sharer in the joint khatta No.113. The term "co-sharer" is not defined anywhere in the Punjab Pre-emption Act, 1913. (I of 1913) (hereinafter called as "The Act, 1913") but its meaning is quite clear. The word 'co-sharer' postulates that there are some other persons as well who have a right in the property. The very conceptions of "joint property" presuppose that it also belongs to a person or persons other than the vendor. All the persons who so own a property among themselves are the co-sharer of each other. There relationship is mutual. The word 'co-sharer' signifies persons owning a share or shares in the whole of the property or properties of which another share or other shares were the subject of sale. In other words, the word 'co-sharer' denotes a person who holds an existing joint proprietary interest, whether absolute or limited, in an un-divided property. The petitioner purchased the specific khasra number from original allottee namely Fazal Dad son of Hashim measuring 30 kanals and got its possession whereas Ameer Sultan son of Bostan also purchased specific khasra number from the said allottee namely Fazal Dad son of Hashim and sold a portion of land measuring 36 kanals 11 marlas with specific khasra number to the respondents as evident from the registered sale deed No.1364 dated 12.12.1977 and gave the possession of said specific Khasra numbers. The august Supreme Court of Pakistan in a full bench judgment "Ali Muhammad v. Shera and another" (1987 SCMR 207) held that sale of specific killa numbers to the vendees would not make the pre- emptor co-sharer in the joint khatta. The facts of the case are that the respondents of said case namely Shera etc., had purchased land measuring 88 kanals in khata No.218 vide mutation No.308 sanctioned on 28th August, 1970. Ali Muhammad pre-empted this sale on the ground that he was a co-sharer in the khatta with the vendor Khan Masood Ahmad Khan. It was found that Ali Muhammad, plaintiff, had purchased some land prior to the sale in question in the same khatta
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and the learned courts below, therefore, held that he was a co-sharer in the khatta and had, therefore, a superior right of pre-emption. In the High Court, however, it was held that the plaintiff as well as the vendees-defendants had purchased the land from the same original owner namely, Khan Masood Ahmad Khan, who was admittedly the sole proprietor of the khatta with no other person to share the khatta with him; that the plaintiff had purchased specific fields from Khan Masood Ahmad Khan and, therefore, he could not possibly become a co-sharer in the khatta with Khan Masood Ahmad Khan. The august Supreme Court of Pakistan held as under: - "The learned counsel for the appellant contended that the learned single Judge was not correct in arriving at the conclusion that since the appellant had not purchased an un-divided share in the property of Khan Masood Ahmad Khan he was not a co-sharer, and, therefore, could not claim superior right of pr-emption. According to the learned counsel the khasra number from which the land had been purchased by the appellant had not been partitioned and so long as this was the position, the appellant was a co-sharer with Khan Masood Ahmad Khan and had a superior right of pre-emption in the property in dispute. We have carefully considered the arguments of the learned counsel for the parties. Admittedly specific killas had been sold by Khan Masood Ahmad Khan of his landed property to the appellant just as he had sold specific killa number of his property to the respondents. Sale of specific killa number to the appellant would not make the appellant co-sharer in the property with Khan Masood Ahmad Khan. Even in para-one of his plaint before the trial Court the appellant had admitted that Khan Masood Ahmad Khan was the sole proprietor of the property in question. Obviously if specific killa numbers had been sold by Khan Masood Ahmad Khan to the appellant it would not amount to the sale of un-specified or definite share so as to make him a co-owner with Khan Masood Ahmad Khan in the said khatta. The learned second appellate Court had given a finding of fact in the instant case while arriving at the conclusion that since the appellant was not co-sharer in the khatta, he did not have a superior right of pre-emption". This Court in a case "Nawab Din and 2 others v. Hassan Muhammad represented by legal heirs" (1987 CLC 1656) while relying upon Ali Muhammad's case supra observed that: "The principal of law enunciated in Ali Muhammad's case, therefore, appears to be that when a person is a sole proprietor of a khatta with no other person to share the khatta with him and that person sells, not a definite share in the khatta, but some specific field numbers out of it, first to the pre-emptor and then to the vendee-defendant, the sale of the specific number to the pre-emptor would not make him a co-sharer in the khatta with that person." And held as under:-- "This is precisely what happened in this case. As has been seen above Mst. Jamil-un-Nisa Begum was the sole owner of the khatta No.11; she first transferred some specific khasra number out of the khatta to Hassan Muhammad, plaintiff, and then the remaining khasra number to Nawab Din etc., appellants. With the sale in favour of Nawab Din etc., Mst. Jamil-un-Nisa ceased to be an owner in the khatta. The facts of this case, therefore, fall squarely within the rule laid down in Ali Muhammad's case. 1 therefore, hold that the learned Courts below wrongly held that Hassan Muhammad, plaintiff, was a co-sharer in the khatta." 18. From the above discussion, it is abundantly clear that petitioner and Ameer Sultan vendor purchased specific KhasralKilla numbers from sole proprietor of a Khata namely Fazal Dad son of Hashim, with no other person to share the Khata with him and petitioner, who became owner in possession of a specific khasra number, evident from the plaint and copy of khasra girdwari (Exh.P- 1), has no superior right of pre-emption qua the suit property being co-sharer as the respondents have also purchased a specific khasra number from the vendor Ameer Sultan. Petitioner cannot get the benefit of the statement of one of the respondents namely Muhammad Anwar (DW-10) wherein during cross-examination he deposed that Altaf Ahmad was a Khewatdar in the land in
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dispute while the defendants -vendees were not owners in the said khewat. In presence of Exh.P-1 (copy of khasra Girdwari), Exh.P-2 (copy of record of right for the year 1972-73), and Exh.P-3 (copy of sale deed No.1364 dated 12.12.1977) the deposition made by DW-10 was of no avail. Learned appellate Court rightly decided the issue No.8 against the petitioner. 19. The next question for determination is that whether suit property is pre-emptable or not? Respondents in their written statement specifically pleaded in preliminary objection No.4 that suit property is not pre-emptable because it did not fall within the definition of agricultural land; that neither it is "village immovable property" nor "urban immovable property" and it was purchased for (urdu text) (residential) to establish a factory; that before the institution of the suit, they erected the factory and it started working; therefore, suit is liable to be dismissed. Exact deposition in verbatim is as under: -
They also pleaded while replying on facts that suit property is surrounded by population and within the limits of "Gaggo" city, where grain market, High School, Railway Station, Police Station etc., are present and is the best place for business point of view; that said property is situated on the road side of Multan-Lahore Highway road; that suit property is situated in a factory area and was purchased for the establishment of a factory which was established before the institution of the suit and it started working with the name and style of "Bismillah Cotton Ginning, Processing and Oil Mills Gaggo." Exact wording in verbatim is as under:-
learned trial Court framed issue No.4 in the following terms and placed its onus upon the defendants. "Issue No.4. Whether the sale in disputed is not pre-emptable? OPD." 20. Petitioner Altaf Ahmad while recording his statement as PW-1 stated that factory was constructed after institution of the suit. Exact deposition is as under: - PW-1
PW-2 also stated in his examination-in-chief that after the institution of the suit in the year 1979 vendees constructed four-wall around the suit property and established a factory. Exact deposition is as under: - PW-2
Petitioner produced registered sale deed No.1364 dated 12.12.1977 as Exh.P-3. Perusal of the said document it appears that on the head-note of the deed it was written that copy of…
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