SH. HAKIM ALI, J.--- A decree of pre-emption, passed under old law of pre-emption i.e. The Punjab Pre-emption Act, 1913, has been challenged through the instant regular second appeal.
2. Facts in brief are that one Makhdoom Manzoor Ahmad Shah was owner of 487 Kanals, 10 Marlas of agricultural lands, situated in Mauza Kot Makhdoom, Tehsil Bahawalnagar. He had sold that land through registered sale-deed on 14-3-1970 in favour of Sher Muhammad and Ghulam Muhammad, the predecessor-in-interest of present appellants. Makhdoom Ahmad Ghaus filed a suit for possession on the basis of superior pre-emptive right in the Civil Court on 27-2-1971 against that above noted sale, claiming himself "Yakjaddi" of the vendor i.e. Makhdoom Manzoor Ahmad Shah and Khatta Shareek of the disputed lands. The suit was decreed by the learned Civil Judge on 27- 7-1976 while the appeal filed against that judgment and decree remained unsuccessful on 11-4- 1994 from learned Additional District Judge, Bahawalnagar. Hence this .Regular second appeal.
3. Learned counsel appearing on behalf of the appellants submits that Makhdoom Ahmad Ghaus, plaintiff had claimed himself as "Yakjaddi" of vendor, i.e. Makhdoom Manzoor Ahmad Shah in para. No.4 of the plaint but had failed to prove his claim of "Yakjaddi" from aforesaid vendor. As per learned counsel, pedigree-table of 1966-67 was also produced by the plaintiff as Exh.P.2 into the evidence yet no other corroborative or oral evidence to support the entries of pedigree-table was brought into evidence by the aforesaid plaintiff. As per learned counsel the mere tendering of this pedigree-table, Exh.P.2 was not sufficient to prove relationship of plaintiff with Makhdoom Manzoor Ahmad Shah, vendor. Referring to section 50 of the Evidence Act, 1872 (Article 64 of the Qanun-e- Shahadat, 1984), learned counsel has submitted that it was incumbent upon the plaintiff to prove this pedigree-table through witnesses who had special knowledge of relationship between the plaintiff and the vendor. As no such witness was brought into evidence, therefore, mere admission of Exh.P.2 pedigree-table into evidence was not compliance of provision of aforesaid section 50 of the Evidence Act, 1872. He has also referred to Mian Khan v. Abdul Aziz PLD 2002 Lah. 159 to show that law requires that pedigree-table must be proved through corroborative evidence. He has also cited Raman v. Noora through his Legal Heirs 1996 SCM R 300 to support his proposition that production of pedigree-table with no other corroborative evidence was not sufficient to prove relationship of plaintiff with the vendor. He has also half-heartedly raised the question of waiver and display of Rashid, one of the legal representatives of Sher Muhammad deceased, a minor, to be major during the suit proceedings. He has also raised the question of institution of suit by the father of plaintiff and has also cited the expert evidence of Mr. M.A. Nomani, D.W.1, who had proved that signatures on the plaint of the alleged plaintiff were not bearing similarity in their characters with those of plaintiff's sample signatures obtained during the Court's proceedings for the examination purposes.
4. In rebuttal, learned counsel appearing on behalf of the respondent replies that assertion made in para. No.4 of the plaint that the plaintiff was "Yakjaddi" and "Khata Shareek", were not specifically and unequivocally refuted by the vendees/defendants in their written statement. According to Order VIII, rule 5 of the C.P.C., this assertion was to be believed to be true and correct and having been admitted by the defendants. Learned counsel has also submitted that P.W.3 in his statement on oath had stated that plaintiff was nephew of the vendor, but this statement was never challenged or disputed during the deposition of aforesaid P.W.3 Abdur Rehman's. He has also referred to the statement of P.W.5 Makhdoom Ahmad Ghaus, the plaintiff, and has stated that the aforesaid plaintiff had deposed on oath that vendor was his uncle but this material portion of the statement was not cross-examined also. Therefore, the learned Courts below have delivered judgments concurrently and correctly. The instant appeal may be dismissed with costs.
5. After considering the arguments of both the learned counsel and from the examination of the record, it has transpired that assertion of the plaintiff that he had superior pre-emptive right on the basis of "Yakjaddi" and "Shareek Khata" in the plaint were not controverted in clear and unambiguous words. In para. No.4 of the written statement the only words used were "- ". But these words were not sufficient to consider the denial of the existence of superior right of plaintiff. In that para. It was also entered by defendants that the plaintiff, if he had any right had waived it, due to his words and acts. From the above noted reply, it appears that defendants were conscious of the fact that plaintiff was having superior right as against them. It was so that when the plaintiff appeared as P.W.5 into the witness-box, he had asserted on oath that Makhdoom Manzoor Ahmad Shah, vendor was his uncle, even this important piece of his statement, was not refuted by putting any question in cross-examination. It is settled law that when a material portion of the statement 'of a witness is not cross-examined, it is deemed to be admitted. It is also pertinent to point out that P.W.3 Abdur Rehman's witness of plaintiff was asked the question in cross-examination with ' regard to the relationship who had also unequivocally stated that plaintiff was nephew of vendor but this portion was never denied or cross-examined further to disprove the relationship of plaintiff with the vendor or to shatter the testimony of this witness, with regard to this reply of relationship question. Ghulam Muhammad, one of the defendants, had appeared as D.W.6 but in his statement, I have not found a single word denying the existence of relationship of plaintiff with the vendor. He had not deposed that the plaintiff had got-no superior right as against the defendants; rather his insistence in the statement was found with regard to the factum of waiver. In his statement he had stated that plaintiff was asked to purchase the lands but he had refused to purchase c it. From this statement it is proved that superior pre-emptive right of the plaintiff was there, it was so that he was asked to purchase the property in dispute.
6. As regards the objection of the learned counsel for the petitioners with regard to the proof of relationship in accordance with the provision of section 50 of the Evidence Act, 1872, I have noted that when pedigree-table of 1966-67, a public document, prepared by the official of Revenue Department under the law was being produced, no objection was raised when that document was brought on record into evidence. As the defendants had not contested the relationship of plaintiff with the vendor, therefore, the objection of proof in consonance with the provision of section 50 of the Evidence Act, 1872, particularly in the above noted legal and factual admissions loses its significance.
7. After some arguments, petitioner's learned counsel has admitted that by mere advertisement in a newspaper, the waiver could not be established. Under the Punjab Pre-emption Act of 1913, waiver had to be established with cogent evidence. No such evidence was brought on the It record so as to believe the waiver having been made by the plaintiff to purchase the property in dispute.
8. As regards the display of Rashid, one of the minors legal heirs of Sher Muhammad, vendee/defendant, as major, no benefit can be given to the appellants,' and appeal cannot be accepted as it was merely an irregularity which was curable. The learned counsel has not been able to point out any prejudice having been caused due to this fact. It is worth-mentioning that Sher Muhammad, one of the vendees/defendants, the predecessor of the above-mentioned minor had expired during the pendency of the suit and all other legal representatives of aforesaid Sher Muhammad, deceased were brought on the record who had not contested the suit with their full interest. It was Ghulam Muhammad, defendant, who was contesting of the suit, and appeals.
9. As regards the objection that the suit was not filed by plaintiff himself and the signatures of plaintiff were not found identical to that of those taken as sample in the Court by M.A. Nomani, Handwriting Expert, it would be suffice to say that this expert evidence was controverted by production of Zakaullah Malik, another Handwriting Expert by plaintiff into evidence was P.W.1, who had contradicted the report of M.A. Nomani. Handwriting Expert. Therefore, evidence of D.W.1 was neutralized by production of another Handwriting Expert, namely Zakaullah Malik. As the plaintiff has owned the signatures and the institution of the suit, therefore, it has to be believed correct till it is disproved by sound evidence otherwise.
10. Both the learned Courts below have concurrently found the facts and case in favour of respondent/plaintiff, it is, therefore, that they have delivered concurring judgments. These need not be interfered with, as those have not been found delivered against any provision of law and the rules of appreciation of evidence. Accordingly, this R.S.A. Is dismissed with no order as to costs.