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Petitioner: MUHAMMAD IBRAHIM and 2 others VS Respondent: IHSANUL HAQ and 2 others
Court Name: Lahore High Court Judge(s): Fazal Karim, Munir A. Sheikh Title: MUHAMMAD IBRAHIM and 2 others vs IHSANUL HAQ and 2 others Case No.: Regular First Appeal No, 83 and Civil Revision No, 394/D of 1986 Date of Judgment:1991-10-05 Reported As: 1992 MLD 164 Result: Appeal accepted/Revision dismissed
JUDGMENT
JUDGMENT ' MUNIR A. SHAIKH, J.---This judgment will also dispose of Civil Revision No,394/D of 1986. 2. This appeal filed by vendees is directed against judgment and decree dated 12-6-1986 passed by learned trial Court whereby the three pre-emption suits filed by Ihsan-ul-Haq, Nazar Muhammad and Mst. Rabia Bibi (she died during the pendency of the suit, and is now represented by her heirs, Ihsan-ulHaq, plaintiff being one of them, have been decreed. 3. The facts of the case shortly stated are that land measuring 204 Kanals situated in Chak No,40/12L Tehsil Chichawatni, District Sahiwal was owned by Col. Amin Khan who sold it to the present appellants who are real brothers through registered sale-deed dated 23-4-1974 for a consideration of an amount of Rs,6,20,000. Mutation No,127 dated 16-5-1974 was sanctioned in pursuance of the said sale-deed. Ihsan-ul-Haq, his mother Mst. Rabia Bibi and Nazar Muhammad separately instituted three suits to pre-empt this sale. Ihsan-ulHaq claimed right of pre-emption on the grounds of ownership in the Khata and ownership in the estate whereas the other two pre- emptors based their claim on the ground of ownership in the estate. On the application of the preemptors the learned trial Court allowed them to furnish security instead of depositing Zare- Panjam. All the three suits were consolidated by order dated 14-3-1977 passed by learned trial Court. An application was moved by the appellants for rejection of the plaint due to non- compliance of the order of the Court regarding submission of the security. By order dated 12-5- 1977, the learned trial Court rejected the said application. This order was assailed by the appellants through three Civil Revision Petitions filed in this Court. These revision petitions were accepted and the case remanded to the learned trial Court to decide the application of the appellants for rejection of the plaint afresh. The learned trial Court after recording evidence through order dated
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23-9-1981 dismissed the same by holding that the security was furnished within the time fixed by the Court and there was no default in that respect. This order was challenged by the appellants through Civil Revision No,391 of 1983 filed in this Court which was rejected. The matter was taken to the Supreme Court through C.P.S.L.A. No,13 of 1986. The Supreme Court on 17-2-1986 passed an interim order in this petition directing that pending the disposal of the aforesaid CPLA no final order shall be passed by the trial Court. Ultimately, the said petition was dismissed by the Supreme Court through order dated 31-5-1986. 4. The appellants contested the claim of the plaintiffs to pre-empt the sale; Haji Nazar Muhammad plaintiff also contested the claim of the plaintiffs, Ehsan-ul-Haq and Mst. Rabia Bibi, that they had the right of pre-emption. The appellants, in their written statement, pleaded, among others, that the land in suit was situated in Chichawatni Town; that it was governed by the provisions of Colonization of Government Lands Act, 1912 and "the said Act having been applied to the land and the local area within the limits whereof the same is situated, no right of pre-emption either existed at the time the vendor proposed to sell the suit property to the answering defendants or at the time of sale nor does it exist now, and declared by the Provincial Government of the Punjab in exercise of the powers under subsection (2) of section 8 of the Punjab Preemption Act, 1913 through Notification No,196-B dated 28th February, 1944; that "the land, garden and buildings purchased by the answering defendants, the right of pre-emption in respect whereof has been claimed by the plaintiff on the basis of ownership of the land in village Chak No 40/12-L is no longer situated within the limits of Chak No,40/12-L, but since 8-9-1975 has come within the limits of Chickawatni Municipality"; that the right of Mst. Rabia Bibi, plaintiff, if any, was not inheritable and her legal representatives had no right to continue the suit and that "the alleged right of pre-emption claimed in the suit and the law giving such a predatory right is not only violative of fundamental rights, but is also repugnant to Holy Qur'an and Sunnah. The so-called right of pre-emption claimed being opposed to Holy Qur'an and Sunnah i.e, dictates of Islamic Shariat, plaintiff's suit claiming such a right is, therefore, not at all maintainable and merits forthwith dismissal". 5. Similarly, Ehsan-ul-Haq, plaintiff, denied the pre-emptive right of Haji Nazar Muhammad, plaintiff; according to him, his suit was collusive and was for the benefit of the appellants. 6. The learned trial Court on the pleadings of the parties framed the following issues:-- (1) Whether the suits are not maintainable for the reasons given in preliminary objections Nos. 1 to 3 in the written-statement of defendants No,1 to 3? (2) Whether the pre-emptors have locus standi and cause of action for their respective suits? (3) Whether the land in dispute has not been properly described in the suits, if so, its effect? (4) Whether this suit and the suit of Mst. Rabia Bibi, rival pre-emptor have been incorreclty valued for purposes of court-fee and jurisdiction, if so, what is the correct valuation for both the purposes and what is the proper court-fee? (5) Whether suit No,79 of 1975 entitled Haji Nazar Muhammad v. Muhammad Ibrahim and others is collusive and for the benefit of defendants No,1 to 3? (6) Whether the plaintiff has a superior right of pre-emption against the vendee-defendants and rival pre-emptors? (7) Whether Haji Nazar Muhammad and Mst. Rabia Bibi, defendants rival pre-emptors have superor right of pre-emption as against the vendee-defendants and who among them has a superior right against the others? (8) Whether ostensible price Rs,6,20,000 was fixed in good faith? (9) If not, what was the market value of the land in dispute at the time of its sale? (10) Whether defendants No,1 to 3 have made any improvements over the land in dispute, if so at what costs and whether they are entitled to recover these costs? (11) Relief.
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7. Ihsan-ul-Haq plaintiff examined Muhammad Sarwar Patwari Halqa as P.W.1 and tendered in evidence copy of jamabandi for the year 1955-56 as Ext.P.2, copy of Mutation No,19 as Ext. P.3, copy of Mutation No,43 as Ext.P.4 copy of Jamabandi for the year 1961-62 as Ext. P.5, copy of Jamabandi for the year 1971-72 as Ext. P.6 and copy of Jamabandi for the year 1971-72 as Ext.P.7 Ihsan-ul-Haq plaintiff appeared as his own witness in support of his case. Rabia Bibi deceased examined Asghar Ali son of Muhammad Khan who was her special attorney as D.W.1 and produced copy of Jamabandi for the year 1971-72 as Ext.D.1 and closed the affirmative evidence. Nazar Muhammad third pre-emptor examined Mukhtar Ahmad Naib-Sadar Qanungo as D.W.2 and he examined himself as D.W.3. He also produced copy of Khasra Girdawari relating to Kharif 1974 and Rabi 1974 as Ext. D-2/A, copy of Jamabandi for the year 1971-72 as Ext.D-3 and copy of Mutation No,127 of sale as Ext.D-4 and copy of Jamabandi for the year 1971-72 as Ext. D-5. It may be observed here that all the three plaintiffs were not cross-examined by the appellants because their learned counsel was not present on the dates when their evidence was recorded. An application was moved on behalf of the appellants that they be permitted to cross-examine the plaintiffs. This application was disposed of by order dated 22-2-1986 on the basis of undertaking given by the learned counsel for the plaintiffs that when the plaintiffs would again examine themselves as their witnesses in rebuttal after the evidence of the appellants had been recorded, they may be cross-examined qua their evidence already recorded in affirmative. The learned trial Court passed the order accordingly and directed the appellants to conclude their evidence and thereafter they could cross-examine the plaintiffs. On 1-3-1986 to which date the case was adjourned an application was moved by the appellants that before recording their evidence, they should be given opportunity to cross- examine the plaintiffs who had already got their statements recorded in affirmative evidence. The learned trial Court passed an order that the appellants were permitted to cross-examine the plaintiffs in the interest of justice when they would appear in rebuttal, and the application was dismissed. Another order was passed on the same date which appears to have been passed on a joint application moved on behalf of the plaintiffs that they were ready to submit themselves for cross-examination on the date fixed before the recording of the evidence of the appellants, in which it was observed that the Court had no objection. There is another order passed by the learned trial Court on the same date whereby the appellants were burdened with costs of Rs,300 for their failure to produce evidence. The case was adjourned to 8-3-1986 for recording the evidence of the appellants. This order in terms is inconsistent with the earlier two orders passed by the learned trial Court on this date through which the request of the appellants to cross-examine the plaintiffs was conceded by the plaintiffs and the plaintiffs were ordered to appear for cross- examination on the next date of hearing. On 8-3-1986, as is manifest from the order passed by the learned trial Court in one case attorney of the plaintiffs was present whereas in the other case plaintiff himself was present for cross-examination. An application was moved on behalf of the appellants for adjournment of the case as their learned counsel was not available. The case was adjourned to 13-3-1986. On 13-3-1986, when the case was taken up the appellants did not allow their learned counsel, flaji Muhammad Shafi, Advocate, Chichawatni to cross-exmaine the witnesses of the plaintiffs on the ground that their learned counsel Sh. Asghar Hameed, Advocate of Sahiwal was to conduct the cross-examination. The learned trial Court observed that after the transfer of the suit from Sahiwal to Chichwatni when notice was issued to Sh. Asghar Hameed, Advocate, learned counsel for the appellants at Sahiwal to appear before the transferee Court he wrote a note on the summons he was engaged for appearance before the Court at Sahiwal only and was not counsel for the appellants for appearance in the Court at Chichawatni. The learned trial Court adjourned the case to 26-3-1986. On 26-3-1986 the appellants made an application seeking an adjournment as their learned counsel Sh. Asghar Hameed Advocate was not available. The learned trial Court proceeded to pass order for closing the evidence of the appellants under
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Order 17, Rule 3, C.P.C. And also their right to cross-examine the plaintiffs who were present in the Court. This order has been challenged by them in Civil Revision No,394 of 1986. The case was adjourned to 17-4-1986 for awaiting the order of the Supreme Court because as observed earlier the Supreme Court had issued a direction to the trial Court not to pass final order in the case. On 16-4-1986, an application was made by Nazar Muhammad, one of the pre-emptors, seeking permission to produce additional evidence. Notice was ordered to be issued of this application to the appellants for 12-5-1986. On 12-5-1986, reply to the said application was filed and the case was adjourned to 14-5-1986 for arguments on the said application. On 14-5-1986, none on behalf of the appellants was present. The case was adjourned to 18-5-1986 for arguments. On that date also none on behalf of the appellants was present. The case was adjourned to 19-6-1986 for arguments at the request of counsel for the plaintiffs. 8. In the meantime, on 7-6-1986, Haji Nazar Muhammad plaintiff, made yet another application under Order 16, rules 1 and 2 read with section 151 of the C.P.C., saying that of the witnesses cited by him, Muhammad Inayat had died and that he be allowed to produce one Haji Muhammad Hussain in his place. Accordingly, he prayed for permission to amend his list of witnesses. On his application, the learned Civil Judge directed "notices to other parties and their counsel for 12-6- 1986". In pursuance of this direction, notices were issued to the appellants' counsel, Haji Muhammad Shall, Advocate, Chichawatni, Col. Muhammad Amin, vendor, and the appellants, Muhammad Ibrahim, Hashmat Ali and Muhamamd Ashraf, for 12-6-1986. Haji Muhammad Shafi, Advocate, wrote on his notice that he had other professional business to attend to at Sahiwal on 12-6-1986 and notices should be served upon the apellants; the report on the notice issued to Col. Muhammad Amin was that he had died and the report on the notice issued to Muhammad Ibrahim, appellant, by the NaibNazir was that the date should be extended. Thus, the notices issued to the appellants were not entrusted for service to any process-server. 9. On 12-6-1986, the learned Civil Judge recorded proceedings on the back of the application of Haji Nazar Muhammad, plaintiff, under Order 16, rules 1 and 2 of the C.P.C. Dated 7-6-1986. After noting that Ihasn-ul-Haq, plaintiff, was present in person, with his counsel, Ch. Muhammad Siddique Kamyana, Advocate; that Mr. Shaukat Hayat, Advocate, was present for the legal representatives of Mst. Rabia Bibi, that Mr. Ikramullah Mann, Advocate, was present on behalf of Haji Nazar Muhammad, plaintiff, and that Muhammad Shari, Advocate, was present on behalf of the appellants, the learned Civil Judge proceeded to record the statement of Haji Muhammad Shall, Advocate, in connection with that appliction. Haji Muhammad Shafi, Advocate, said that he had no objection to the application of Haji Nazar Muhammad, plaintiff, being accepted. 10. On the same day viz. 12-6-1986, an application was made by Ihsan-ulHaq, plaintiff, informing the learned Civil Judge that "the petitions for special leave to appeal filed by the respondents in this case against the order of the Multan Bench of the Lahore High Court were dismissed in limine by the Supreme Court of Pakistan on 31-5-1986. That being so the stay order restraining this Court from pronouncing final judgment in this case has been vacated" and saying that the case was 11 years old; that though the case stood adjourned to 1976-1986, "awaiting the judgment of the Supreme Court of Pakistan", yet as the PSLA had been dismissed, "this Court is, therefore, at full liberty to pass final judgment in this case at any time" and praying that "the proceedings in the case may kindly be taken expeditiously as desired by the High Court and the case may be finally diposed of one merits". On this application, the learned Civil Judge recorded proceedings on the order-sheet, the starting point of the proceedings being the significant observation: {{URDU TEXT}} ' The learned Civil Judge then noted, the presence of the parties and their counsel, observing that they were present in connection with the application of Haji Nazar Muhammad under Order 16, rules 1 and 2 of the C.P.C. And said that as the case was 10 or 11 years old, proceedings on the
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"applications" should be taken {{URDU TEXT}}. He then proceeded to record the statements of Ch. Muhammad Siddique Kamyana, Advocate, counsel for Ihsan-ul-Haq, plaintiff, Haji Muhammad Shafi, Advocate, Mr. Shaukat Hayat, Advocate, counsel for the legal representatives of Mst. Rabia Bibi plaintiff, and Mr. Ikramullah Maan, Advocate, counsel for Haji Nazar Muhammad, plaintiff. Ch. Muhammad Siddique Kamyana, Advocate, stated that no stay order of any higher Court was in operation; Haji Muhammad Shaft, Advocate, stated that the appellants had informed him that they were approaching the High Court for filing a revision petition but he did not know if the High Court had made any order staying the proceedings. He added that in those circumstances, he could not raise any legal objection to the hearing of the suit; Mr. Shaukat Hayat, Advocate, and Mr. Ikramullah Maan, Advocate, also said that no stay order was in operation. In view of these statements, the learned Civil Judge thought that he could proceed with the disposal of the suit; in that behalf, he observed that the suit was 11 years old and that there was a direction from the High Court for its early disposal. He, therefore, invited the parties to address arguments on the pending applications one by one. He took up the applications of Haji Nazar Muhammad, plaintiff first. During the arguments, however, the learned Civil Judge observed and reduced this fact to writing that learned counsel for the plaintiffs-pre-emptors had reached a compromise and counsel for Haji Nazar Muhammad, plaintiff wanted to make statement. He, therefore, recorded the statement of Mr. Ikramullah Maan, Advocate; he withdrew the applications dated 17-4-1986 and 7-6-1986 and those applications were, therefore, dismissed as withdrawn. This was followed by another order by the learned Civil Judge that counsel for the parties wanted to make statements and proceeded to record them. Ihsan-ul-Haq, plaintiff, said that as Shariek Khata and Shariek Khewat, he had a preferential right of pre-emption as against the appellants and the rival pre-emptors but to resolve the 11 years old dispute, they had agreed that the suit should be decreed in favour of the plaintiffs in the following shares; to the extent of 100 Kanals in favour of Ihsan-ul-Haq, plaintiff, to the extent of 68 Kanals in favour of Haji Nazar Muhammad, plaintiff, and to the extent of 36 Kanals in favour of the legal representatives of Mst. Rabia Bibi. He further stated that the sale price of Rs,6,20,000 was acceptable, that he would also make up the deficiency in court-fee and that the parties would pay the pre-emption money according to the abovementioned shares. Mr. Shaukat Hayat, Advocate, accetped Ihsan-ul-Haq, plaintiff's statement on behalf of the heirs of Mst. Rabia Bibi, plaintiff, and Mr. Ikramullah Maan, Advocate, accepted that statement on behalf of Haji Nazar Muhammad, plaintiff. Two supplementary statements, one by Ihsand-ul-Haq, plaintiff, and the other by Mr. Ikramullah Maan, Advocate, were also recorded. By them they agreed to pay the registration expenses. These statements were followed by an order of the learned Civil Judge, which was that in view of the statements of Ihsan-ul-Haq, plaintiff and the counsel for the rival pre- emptors, there was no live issue between the plaintiffs. He, therefore, called upon the appellants' counsel to say whatever he wanted to say as regards the appellants' rights. Haji Muhammad Shafi, Advocate, then made a statement that as the appellants' evidence had been closed and as the record stood, there was no evidence in their favour. He was not in a position to controvert the plaintiffs' rights. He, however, asked for time. 11. Basing himself upon this inability of Haji Muhammad Shah, Advocate, to say anything in the appellants' favour, and after referring to the fact that the appellants' evidence stood closed under Order 17, rule 3 of the C.P.C., the learned Civil Judge went on to say that there was no evidence to rebut the plaintiffs' evidence and that it was not proper to adjourn the case. He, therefore, invited the appellants' counsel to address arguments. He then heard the arguments of the plaintiffs' counsel and observing that the appellants' counsel did not address any arguments, for they had led no evidence asked the parties to wait for orders. 12. The next order made was decreeing the plaintiffs' suit {{URDU TEXT}} with the direction that the plaintiffs should deposit the pre-emption money by 12-7-1986 and that the plaintiff, Ihsan-ulHaq,
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and the legal representatives of Mst. Rabia Bibi, plaintiff, should make up the deficiency in court-fee also by that date. The order closed with the following very significant words: {{URDU TEXT}} 13. Yet we find on the record of the trial Court a detailed judgment of the date 12-6-1986. In that judgment, after referring to the parties' pleadings and to the various stages of the suit and the way the appellants' evidence was closed under Order 17, rule 3 of the CPC on 26-3-1986, the learned Civil Judge noticed at great length the course of the proceedings taken on 12-6-1986 and observed that "in view of the present situation developed during the proceeding, the Court came to the conclusion that there was no dispute in between the rival pre-emptors with regard to their superior right and they have admitted the right of each other, therefore, counsel for vendces-defendants was invited to say whatever he liked in support of right of Ibrahim etc". He went on to say that "the arguments advanced by the counsel for rival pre-emptors were heard. The counsel for vendee defendants did not advance any arguments and as there was nothing on record in the form of documentary as well as oral evidence in support of vendee-defendants, therefore, file was adjourned for a short while for the pronouncement of judgment". Having said so much, he came "to the discussion of issues". 14. On issue No, 1, which reflected the appellants' preliminary objections that the suit property was situated in Chichawatni Town village Chak No,40/12-L Urban Tchsil and District Sahiwal and that the same was the property of the Provincial Government and was governed by the provisions of Colonization of Government Lands Act, the learned Civil Judge referred to a notification dated March, 1973, to which his attention was called by the plaintiffs' counsel, and held that the sale in question was pre-emptible; he also referred to P.W.1's statement, namely, that the land in dispute was situate outside the municipal limits and decided the issue against the appellants. On issues No,2 and 8, the learned Civil Judge returned the finding that Ihsan-ulHaq, plaintiff, was owner in the estate and "he has agreed to give 68 kanals to Nazar Muhammed plaintiff and 36 kanals to the representatives of Mst. Rabia Bibi deceased". As regards Mst. Rabia Bibi deceased, he referred to copy of Jamabandi Exh.D1 to hold that she too was an owner in the estate. He, therefore, held that the plaintiffs were entitled to the land in suit in the shares agreed to by them. Issue No,3 was decided against the appellants, for there was no evidence to support it. On issue No,4, the finding was that the plaintiffs, Ihsan-ul-Haq and Mst. Rabia Bibi, should pay Rs,15,000 as court-fee. Issue No,5 was not pressed by counsel for Ihsan-ul-Haq, plaintiff. Issue No,7 was found in favour of Nazar Muhammad and Mst. Rabia Bibi, plaintiffs; as to issue No,8, the learned Civil Judge held on the admission of the plaintiffs that the sale price was Rs,6,20,000. There was no evidence on issue No,10 and in view of the plaintiffs' statements, the learned Civil Judge held the appellants entitled to Rs,45,010 as incidental charges. 15. In the concluding paragraph of the judgment, we find that the plaintiff, Ihsan-ul-Haq, was directed to pay "the proportionate sale price including the incidental charges, in the total amount of Rs,3,25,990" for his 100 kanals and similarly, Nazar Muhammad and Mst.Rabia Bibi, plaintiffs, were directed to pay Rs,2,21,670 and Rs,1,17,350 for their 68 kanals and 36 kanals respectively. 16. Learned counsel for the appellants referred to the proceedings dated 18-4-1977 to point out that the plaintiffs, Ihsan-ul-Haq and Nazar Muhammad, had appeared as their own witnesses but could not be cross-examined; it was pointed out that on that date, the lawyers, were on strike and had bycotted the Courts. He also called our attention to the orders of the learned trial Court dated 1-3- 1986 and the plaintiffs' joint application of that date and argued that the learned Civil Judge as also the plaintiffs had recognized the justice of the appellants' grievance that they were entitled to an opportunity to cross-examine the plaintiffs. He argued further that as the plaintiffs' statements were in affirmative evidence, they could not be deemed to have closed their evidence till they had been cross-examined and the learned Civil Judge was therefore, wrong in directing the plaintiffs to
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be cross-examined and the appellants to produce their evidence on the same day. In his view, therefore, the learned Civil Judge was wrong in closing the appellants' right to cross-examine the plaintiffs and was also wrong in closing their evidence by his order dated 26-3-1986. Learned counsel for the plaintiffs did not controvert the fact that lawyers were on strike on 18-4-1977 and that this was the reason that the plaintiffs were not cross-examined on that…
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