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Petitioner: Haji SULTAN AHMAD through Legal Heirs VS Respondent: NAEEM RAZA and 6 others
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Bashir Jehangiri, Raja Afrasiab Khan, Saeeduzzaman Siddiqui Title: Haji SULTAN AHMAD through Legal Heirs vs NAEEM RAZA and 6 others Case No.: Civil Appeals Nos.296 to 298 of 1993 Date of Judgment:1996-05-12 Reported As: 1996 SCMR 1729 Result: Appeals accepted
JUDGMENT
JUDGMENT ' SAIDUZZAMAN SIDDIQUI; J---We propose to dispose of the abovementioned three direct appeals through a common judgment as the points - of law and facts arising in these appeals are identical. 2. Haji Sultan Ahmad, the appellant (hereinafter to be called as 'the deceased') filed three suits claiming right of pre-emption in respect of three different sales of agricultural land effected .Through mutation in the revenue record, in favor of respondents in the above appeals. The deceased claimed the right of pre-emption on the ground of being an heir of the vendors. The trial Court decreed the suits in favor of the deceased and on appeal, the judgments and decrees of the trial Court were affirmed. However, the judgments and decrees of the two Courts below were set aside in Regular Second Appeals filed by the respondents/vendees, against the judgments and decrees of first appellate Court, by a learned Judge in Chambers of the Lahore High Court by reversing the concurrent findings of the two Courts blow under issue No,5, as follows:-- "11. It has been noticed that Sufi Hidayat Ullah D.W. Was the Lambardar of the village; admittedly he had identified the parties before the Tehsildar when the sale mutations were attested. He had signed the sale mutations in that capacity. He was not only a respectable person but was also not in any way interested against the plaintiff. He offered to state on the Holy Qur'an that his testimony was true. He did say in cross-examination that proceedings under section 107/151 Cr. P.C. Had been initiated against him by the vendors a month before his evidence. No reason was, however, adduced what had led to the institution of those proceedings nor was suggestion of any particular enmity put to him. The institution of those proceedings could, therefore, we'll be a device to create enmity to enable the plaintiff to contend that he was an interested witness. If this inference is
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justified, then this would show also that the vendors had instituted the proceedings at the instance of their father, Haji Sultan Ahmad plaintiff, and that there was collusion between them. Babu D.W. Was also an independent witness. It has been sent that the plaintiff had obtained the permission to call the Tehsildar and the Patwari as his witness but had given them up. However that may be, the defendants were not bound in4aw to call the Patwari or the Telisidlar. They had produced Sufi Hidayat Ullah and Babu D.Ws. And the question was whether their evidence was credit-Worthy. It was not necessary for the Patwari or for that matter the Tehsildar to record the presence of the plaintiff in the mutation proceedings and I wonder how the absence of the name of the plaintiff in those proceedings could be evidenced of the fact that he had not appeared before the Patwari or before the Tehsildar. The learned Civil Judge was plainly wrong in his view that the entries of the sale mutations had a presumption of truth attached to them and so was the learned District Judge when he said that "in absence of the documentary evidence the oral evidence cannot be safely relied upon on the point of waiver". The plaintiff was the father of the vendors and for the purpose of negotiations no formal power of attorney was needed for him to negotiate the sale. As the plaintiff was the father of the vendors, there was also nothing unusual in the cheques to be delivered to the plaintiff. As regards the so-called contradictions in the evidence of those witnesses, they were minor in character; it is natural for such contradictions to occur. As to the testimony of J!Al (P.W.6) and Ishtiaq Ahmad (P.W.7), they were, as has been noticed, called as the plaintiff's witnesses after the defendants had closed their evidence. Jalal was a Muslim Shiekh; he admitted that he could not even sign his name yet he claimed to be the Munshi of Nazar Hussain (or Nazar Muhammad) guardian ad litem of the vendees-defendants. It was not put to Nazar Hussain when he appeared as P.W.3 that Jalal was his Munshi. As observed above, there was no doubt about the association of Sufi Hidayat Ullah D.W. As Lambardar with the sale mutations. Jalal P.W. Admitted that he was not present when the sale mutations were attested by the Tehsildar. On their own showing Jalal and Ishtiaq Ahmed P. Ws were chance witnesses. The learned Civil Judge was also influenced by the facts stated by Ishtiaq Ahmed (P.W.7) that the plaintiff had three wives; that the vendors were the sons from his first wife and he had children by his third wife also and that the sale was secretly made because the vendees did not want their land to go to the sons of the plaintiff from his 3rd wife. There was, however, nothing in the evidence to indicate that the relations between the vendors and their father Sultan Ahmad, plaintiff, were strained and in any case, the land in suit belonged to the vendors and there ;vas, therefore, no question of its going to the sons of the plaintiff by his third wife. I, therefore, hold that the evidence of-Sufi Hidayat Ullah and Babu D.Ws proved that the plaintiff had not only brought about the sale bargains but was also present when the sale mutations were attested and that he had waived his rights of pre-emption." 3. The learned counsel for the appellants contended that reversal of the concurrent finding of fact recorded by the two Courts below by the learned Judge in Chambers in the second appeal on reappraisal of evidence in the absence of any misreading, non-reading of any material piece of evidence or perverse appreciation of evidence by the Courts below, was contrary to the well- settled legal position. It is contended that even a wrong conclusion by the Courts below on a question of fact could not be disturbed in second appeal, if the second Appellate Court disagreed with the appraisal of evidence by the. Courts below. The learned counsel for the respondents on the other hand contended that the finding under issue No,5 could not be treated as concurrent as the first Appellate Court neither analysed the evidence on record nor recorded its own conclusion as a result of reappraisal of evidence in the case. The First Appellate Court, according to learned counsel, merely endorsed the finding of trial Court recorded under issue No,5. It is further contended by the learned counsel for the respondents that discrepancies pointed out by the learned Judge in Chambers in the appreciation of evidence on record by the Courts below were of a very substantial nature and non-consideration thereof amounted to misreading and non-
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reading of material evidence on record. After hearing the learned counsel for the parties at length and going through the evidence on record, we are of the view that the reversal of the concurrent finding of fact under issue No,5 by the learned Judge in Chambers under section 100, C.P.C. Was not justified. 4. Before considering the contentions of the parties on merit, it will be appropriate to examine the scope of interference by a Second Appellate Court with a concurrent finding of fact under section 100, C.P.C. In the case of Abdul Majid v. Khalil Ahmed (PLD 1955 FC 38), a Division Bench of Lahore High Court upset concurrent finding of fact recorded by the two Courts below in second appeal under section 100, C.P.C. In that case the respondent instituted a suit for declaration against his father and legal heirs of the vendee challenging three sales of agricultural land made by his father, on the ground that these sales were effected by his father in respect of ancestoral land without legal necessity and, therefore, these alienations were not binding on him. The suit instituted by the respondent was dismissed and the decision of the Trial Court was affirmed in appeal. However, in second appeal filed by the respondent in that case, a Division Bench of Lahore High Court upset the concurrent finding of fact with the consequences that the suit instituted by the respondent was decreed. The learned Judges of the High Court in that case reversed the finding of fact recorded by the two Courts below on the ground that the appraisal of evidence in the case by the two Courts below was fallacious. The High Court was of the view that the evidence led in the case should not have been accepted by the trial Court and the First Appellate Court. The judgment of the High Court was reversed and that of the First Appellate Court restored, with these observations:-- "It is obvious that what the learned Judges intended to say was that for the reasons stated by them the Coats below should not have accepted the evidence which they did, and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with this view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lal Shah and others PLD 1954 Lah. 447 where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdharani v. Jewahir Singh Chowdhri ILR 18 Cal. 23 and Wali Muhammad v. Muhammad Bakhsh II Lah. 199 which lay down this proposition in clear and unmistakable terms. It is not suggested that there was in the present case any 'error in the procedure provided by law', nor that there is any rule of law prescribing the manner in which evidence in such cases has to be judged which was contravened by the Court of First Appeal which is the final judge of facts. The circumstances that the sale-deeds contained no recital as to necessity, that the alienations were old sales, that the alienee was dead at the time of the suit and that the vendor was leading the life of a country gentleman and not that of a debauch or wastrel, had all been duly considered by the Courts below in arriving at their conclusions, and assuming that the High Court did not agree with the lower Courts' appreciation of the evidence, that could not be a ground for it to reverse the concurrent findings of fact of the lower Courts. In my opinion, the High Court had no jurisdiction to entertain the second appeal on this ground, and it exceeded its functions in interfering with those findings." -
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' In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617), this Court while considering the scope of interference by a Second Appellate Court with the concurrent findings of fact recorded by the two Courts below made these observations:-- "The legal position does not admit of any doubt that a concurrent fading of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence, although the concurrent finding of the lower Courts may appear to be grossly erroneous, unless, as laid down in subsection (c) of section 100, the error or defect discovered is of a substantial character pertaining to the procedure as provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon its merits. Interference would also be justified if the decision of the lower Courts is found to be contrary to law or some usage having the force of law or has failed to determine some material issue of law usage having the force of law." ' Similarly, in the case of Fazal Rahman v. Amir Haider and another (1986 SCMR 1814), it was observed as follows on the scope of interference by a Second Appellate Court with the concurrent finding of facts under section 100, C .P . C . : "The High Court will not interfere with an erroneous finding, however, gross and inexcusable the error may be except on strong legal ground which can be held to tantamount.To interference on a question of law. A concurrent fading of fact reached by the lower Courts will not be disturbed by the High Court in a second appeal even if it disagrees with that finding on its own view of the evidence." ' In the case of Muhammad Anwar v. Muhammad Siddiq Hashim (PLD 1992 SC 838), this Court after referring to a number of cases dealing with scope of interference with the concurrent finding of fact by a Second Appellate Court, observed as follows:-- "The thrust of his argument was that since there were concurrent findings of the two Courts below, the High Court in second appeal could not have reversed the above findings. In furtherance of his above submission, he has relied upon the following cases: ' Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Mir Abdullah v. Muhammad Ali and 2 others 1977 SCMR 280; Mst. Kubra Begum v. Muhammad Yasin Khan PLD 1983 SC (AJ&K) 56 and Government of West Pakistan v. Fazle Haq 1983 CLC 2669. There cannot be any cavil with the proposition of law enunciated in the above reports that the concurrent findings recorded by the two Courts below after careful and elaborate consideration cannot be disturbed either by the High Court or by the Supreme Court. However, at the same time it is also well-established proposition of law that if the concurrent findings is based on misreading of evidence or founded without taking into consideration, material piece of evidence on record or is perverse or contrary to corti; it is liable to be disturbed by the forum superior to the Courts which recorded such a concurrent finding." 5. From the above discussed legal position, it is quite obvious that the concurrent finding recorded by the Courts below cannot be interfered with by the High Court while exercising jurisdiction under \section 100, C.P.C. How so erroneous that finding may be, unless such finding, has been arrived at by the Courts below either by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. The point, therefore, which arises for consideration in the present appeals is, whether the reversal of the concurrent findings of the Courts below under issue No,5 by the learned Judge in Chambers was on account of any misreading of evidence by the Courts below or omission on the part of Courts below to take into consideration any material piece of evidence on record or the appreciation of evidence by the two Courts below was, perverse or arbitrary. We have already reproduced the relevant observations of the learned Judge in Chambers which persuaded him to interfere with the concurrent finding of fact. A careful examination of the reasons given by the learned Judge to justify interference with
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the concurrent finding of fact would show that the learned Judge was of the view that Sufi Hidayat Ullah, one of the D.W. Examined in the case was person whose evidence should not have been discarded by the trial Court. It was also the view of the learned Judge in Chambers that the defendants were not bound to call the "Patwari' or Tehsildar in evidence to prove the presence of the deceased at the time of recording of mutation in favor of respondents. The learned Judge, therefore, concluded that mere absence of the name of the deceased in the proceedings through which mutation was recorded in the name of vendee.- respondents, was not material to determine the controversy. The learned Judge in Chambers further observed that the view expressed by the Courts below that the entries of the sale mutations had a presumption of truth attached to them and, therefore, in the absence of the documentary evidence, the oral evidence cannot be safely relied upon on the point of waiver, was not a correct view. The above observations of learned Judge in Chambers related to appreciation of evidence and not to any misreading or non- consideration of material piece of evidence on record by the Courts below. Similarly, the observation of the learned Judge that the contradiction in the evidence of defense witnesses were minor in character and therefore, should not have been divorced on that ground, also fell within the scope of appreciation of evidence. In fact, the entire process of reasoning by the learned Judge in Chambers in upsetting the concurrent finding of facts was the result of reappraisal of evidence on record in the case which was not permissible under section 100, C.P.C. 6. The learned counsel for the respondents, however, contended that the finding recorded by the First Appellate Court was mere affirmation of the finding of the trial Court without disclosing its own reasoning's and therefore, such finding could not be regarded as concurrent which does not appear to be correct argument. The First Appellate Court discussed issue No,5 in the judgment as follows:-- "It is contended that the vendees-defendants appellants have produced the copy of the entries relating to the sale in suit made in the Roznamcha Waqaiti Exh.D3 and copy of the sale in suit Exh.D5. These documents show that Nazar Hussain guardian of the defendantsvendees, Muhammad Ali vendor, Hidayatullah Lambardar D.W.1, Muhammad Hussain Waraich (since dead) Faiz Ahmad Patwari were present at the time of attestation of the mutation of sale in suit before Masood Ahmad, Tehsildar. Out of these aforementioned persons the defendants-vendees have examined Nazar Hussain D.W.3 guardian of the minor vendee and Hidayatullah Lambardar D.W.1, is dead. Both Hidaitullah Lambardar D.W.1, and Nazar Hussain D.W.3 have deposed that the sale in suit was transacted by the plaintiff (respondent No,1) himself and the sale price had also been received by him. In rebuttal the vendor has not been examined. The plaintiff-respondent No,1, on his application was allowed to produce Faiz Ahmad Patwari and Masood Ahmad Tehsildar inJebuttal but he gave them up. Thus an adverse presumption is to be drawn against him in view of the provisions of section 114-G of the Evidence Act. The contention is not tenable. The aforementioned evidence is oral one and from the perusal of the document Exhs.D3 and D5 it is nowhere shown that the plaintiff-respondent No,1 was present at the, time of execution of the transaction of sale in suit. In absence of the documentary evidence the oral evidence cannot be safely relied upon on the point of waiver. In view of this, even if the plaintiff respondent No,1 has given up Faiz Ahmad Patwari and Masood Ahmad Tehsildar his cause is not affected. The Trial Judge has fully discussed the oral evidence of the vendees defendants appellants and has rightly come to the conclusion that they have failed to establish the plea of waiver." The above discussion do show that the evidence in the case was duly taken into consideration by the First Appellate Court and it was not a mere affirmation of the fading's recorded by the Trial Court. The fact that the learned First Appellate Court observed during the course of discussion of evidence under Issue No,5 that the Trial Judge had fully discussed the oral evidence of the vendee-
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defendants and rightly came to the conclusion that they failed to establish the plea of waiver, did not amount to a mere affirmation without discussion of the evidence on record. 7. As pointed out by us in the preceding discussion, the learned Judge in Chambers reversed the two judgments of the Courts below as a result of reversal of the finding under Issue No,5 in the suit which was to the following effect:-- "Whether the plaintiff is estopped to file this suit? OPD" ' The contention of the respondents throughout, was that by his conduct the deceased appellants had waived right of pre-emption and, therefore, they were not competent to institute the suit to claim right of pre-emption. In the case of Baqri and 4 others v. Saloon and 3 others (PLD 1972 SC 133) this Court while considering the circumstances under which waiver of right of pre-emption would arise, referred to large number of decided cases and summed up the discussion as follows:- - "To sum up the discussions lay down the following principles:-- (i) Right of pre-emption arises on sale of the property in question. This is the general law. (ii) Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the property. This is consistent with the principle of foreclosure of right of preemption as envisaged in section 19 of the said Act. (iii) Mere participation in the auction for the sale of the property or failure to outbid the purchaser cannot be regarded as a waiver of the right of pre-emption." ' Applying the principles laid down in the cases discussed above it is evident that there was no waiver in the present case. Respondent No,1 never refused to purchase the property at the price it was sold nor was there any, act on his part which could reasonably be construed to constitute waiver of his right of pre-emption. On the contrary, as we have noticed already, his participation in the two auctions and his bid of Rs,28,000 are clear indications of his intention to purchase the property." ' The learned counsel for the respondents has very vehemently relied upon the following observations of this Court in case of Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 403) in support of his contention that in the circumstances of the present case, the learned Judge in Chambers rightly concluded that the deceased, who was father of the vendors, shall be deemed to have waived his right of pre-emption by his conduct: "It would be noticed that the law has itself provided a procedure, through sections 19 and 20 of the Pre-emption Act, whereby the right of pre-emption can be foreclosed even before the sale takes place. It cannot, therefore, be urged that such a right cannot be waived at all till such time as it comes into existence, i,e, till after the vendor has sold the land in question to the vendee. Pre- emption being a predatory right in nature, we are of the view that Courts should place a broad and beneficial interpretation; on the aforementioned sections and the principle of waiver arising therefrom, rather than trying to whittle down, through hyper-technical arguments, the claim of the defendant-vendee that the pre-emptor who was associated with the sale proceedings, or had taken part in the auction, had waived his right to purchase it either by refusing to buy it at the price at which the land was offered to him or even by refraining from bidding the same (if not higher) price than the offered by the highest bidder at an auction." 7. It is universally accepted that pre-emption is a purgatory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the
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property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre- emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest…
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