JUDGMENT CH. IJAZ AHMAD, J.- The brief facts out of which the present second appeal arises are that late Taj. Muhammad Khan respondent No. 6 sold land measuring 32- Kanals in Mauza Jaboka Tehsil and District Okara to respondents Nos. 1 to 5 through Mutation No. 864, which was attested by the revenue officer on 21.10.1974. The appellants/plaintiffs being aggrieved filed a suit for possession by way of pre-emption against respondents/defendants on 9.10.1975 in the Court of Civil Judge 1st Class, Okara. The contents of the plaint reveal that the appellants/plaintiffs are owners in Mauza Jaboka where the land in question is situated, which has been purchased by the respondents/defendants vide Mutation No. 864, dated 21.10/1974 for consideration of Rs. 32,000/- but it has been shown in the mutation in question fictitiously as sold for Rs. 40,000/-. The contents of the plaint further reveal that respondents/defendants were not owners in the Mauza in question earlier to the purchase of the disputed land whereas the appellants/plaintiffs are owners in the said Mauza and thus have got the superior right against the respondents/defendants. The contents of the plaint further reveal that the vendor did not issue notice to the appellants/plaintiffs under section 19 of the Preemption Act, 1913. The plaint further reveal that the' appellants/plaintiffs offered the respondents/defendants to purchase the land in question for consideration of Rs.
32,000/- but they refused to do so. The respondents/defendants filed written statement, controverted the allegations levelled in the plaint and took a specific stand that respondents Nos. 1 to 5 had purchased the land in question from respondent No. 6 on the Plantation of Muhammad Baqar appellant No. 2. Out of the pleadings of the parties, the learned Trial Court framed the following issues:--
(1) Whether the plaintiffs have lost their right to pre-empt the sale in question?
(2) Whether the suit is collusive? OPD
(3) Whether, the description of the property is incorrect. If so, what is the correct description? OPD.
(4) Whether the plaintiffs have got superior right of' pre-emption? OPD
(5) Whether sum of Rs. 40,000/- was actually paid or fixed in good faith as price of the suit land?
(6) If the above Issue is not proved then, what is the market value of the suit land?
(7) Whether the defendants have invested a sum of Rs. 10,000/- in effecting improvements over the suit land? If so, what is its effect? OPD
(8) Whether the suit is time-barred against defendant No. 4? OPD
(9) Whether the suit has incorrectly been valued for the purpose of Court-fee and jurisdiction, if so, what is the correct valuation? OP Parties.
(10) Relief.
2. The Trial Court decreed the suit vide judgment and decree dated 13.1.1981. The respondents/defendants being aggrieved filed an appeal in the Court of learned Addl. District Judge, who accepted the same vide impugned judgment and decree dated 22.5.2002, hence the present second appeal, by reversing findings on Issues Nos. 1 and 4.
3. The learned counsel of the appellants submits that the appellants/plaintiffs have taken a specific stand in para 4 of the plaint that the appellants/plaintiffs are owners in the village in question whereas the respondents/defendants are not owners in the village in question whereas the respondents have taken a preliminary objection that the original owner had offered the appellants/plaintiffs to purchase the land in question but the appellants/plaintiffs refused to purchase the same and the appellant/Plaintiff late Muhammad Baqar was present at the time of sale execution between the original owner and the vendees. He further submits that the appellants/plaintiffs tendered evidence in the shape of documentary evidence Ex. P. 1 and Ex. P. 2 Ex. P. 1 is a document of Jamabandi for the years 1973-74, which shows that the appellants/plaintiffs are owners in the village in question. Ex. P. 2 -is a mutation in question on the basis of which respondent No. 6 has sold the land in question in favour of respondents Nos. 1 to 5 vide Mutation No. 864, dated 12.10.1974. He further submits that D.W. 1 Muhammad Moosa admitted in cross-examination that the appellants/plaintiffs are" owners in the village in question whereas respondents Nos. 1 to 5 are not owners in the village in question. He further submits that during the pendency of the appeal respondents filed an application under Order 41, Rule 27 of C.P.C., for additional evidence to place on record Mutation No. 863, dated 21.10.1974, which revels that respondents Nos. 1 to 5 had purchased 4-Kanals of land. The first Appellate Court dismissed the application vide order dated 13.5.2002 and reversed the findings on issue No. 4 merely relying upon Mutation No. 863 dated 21.10.1974, which was marked by the first Appellate Court as C-1 without notice to the appellants/plaintiffs therefore, the first Appellate Court was not justified to take judicial notice of Mutation No. 863, dated 21.10,1974. He further submits that the impugned judgment and decree is result of misreading and non-reading for the record in case the finding of the first Appellate Court on issue No. 4 be read with order dated 13.5.2002 wherein the application of respondents for additional evidence was dismissed. He further urges that respondents/defendants failed to bring on record sufficient material to show that the appellants/plaintiffs had participated in the sale and purchase between respondent No. 6 and respondents Nos. .1 to 5. Mere assertion is not sufficient that principle of estoppel is attracted in the presence of documentary evidence in the shape .Of Mutation No. 864, dated 21.10.1974, therefore finding on issue No. 1 is also based on misreading and non-reading of the record. He further submits that the judgment of the first Appellate Court is not in accordance with law laid down by the superior Courts, In support of his contentions, he relied upon Ch. Barkat Ali v. Chanan Din (PLD 1955 Lahore 548) and Muhammad Afsar v. Muhammad Sharif (1989 CLC S.C. AJ&K 1850).
2. The learned counsel of the respondents submits that the right of pre-emption is a very weak right and ' the respondents/defendants are well with their rights to adopt the legal device to destroy the right of pre-emption of the appellants/plaintiffs. The respondents/defendants had purchased the land measuring 4-Kanals in the village in question vide Mutation No. 863, dated 21.10.1974, therefore, the first Appellate Court was justified to non-suit, the appellants/plaintiffs on the well-known principle of estoppel and waiver. In; support of his contention, he relied upon Dost Muhammad Khan v. Imam Bakhsh (PLD 1971 Peshawar 150). He further urges that mere admission of one of the vendees is not sufficient to non-suit the respondents/defendants in presence of documentary evidence. Such type of admission has no value in the eye of law. In support of his contention, he relied upon Mst. Aimna Bi v. Mst. Bivi and others (1993 MLD 1207).
3. The learned counsel for. The appellant in rebuttal submits that the first Appellate Court dismissed the application for additional evidence with cogent reasons as the Mutation No. 863 dated 21.10.1974 has already been cancelled vide Mutation No. 2716, dated 31.8.1976 by the A.C./R.A. Okara.
The land mentioned in Mutation No. 863, dated 21.10.1974 was also transferred in favour of the '
Federal Government vide Mutation No. 963. Dated 22.9.1976, which was subsequently transferred to so many other persons as is evident from the order dated 13.5.2002 passed by the first Appellate Court on the application of the respondents/defendants for producing additional evidence.
4. I have given my anxious consideration to the contentions of the learned counsel of the- parties and perused the record.
5. It is better arid appropriate to reproduce relevant paragraphs of plaint, written statement and portion of cross-examination of D.W. 1 Muhammad Moosa to resolve the controversy between the parties:-- D.W 1 #tbs ~C~ >^~hi '-zJz _ ,s-> >. #the -J?Wvi. wvA JZ J Fujisan. y-lJLZifbtjj {{URDU TEXT}} In case the aforesaid paragraphs of plaint, written statement and portion of cross-examination of D.W. 1 Muhammad Moosa are put in a juxta position then the first Appellate Court erred in law to reverse the findings of the Trial Court on issue No. 1 without am/justification, It is settled principle of law that Courts have always insisted upon the plea of estoppel being proved on the basis of cogent and convincing evidence especially in pre-emption cases, In arriving to this conclusion, I am fortified by the law laid down by this Court in Abdul Karim's case (PLD 1985 Lahore 552). It is also settled principle of law that the purchaser who settles his bargain with the vendor and buys property relying on the prior assurance of the pre-emptor that he will not pre-empt, cannot successfully set up the plea of estoppel and waiver in a suit of pre-emption, In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- Govindsa's case (AIR 1950 Nagpur 22)
Kanhai Lai's case (ILR 127 All 670)
Mst. Nasrin Akhtar's case (NLR 1990 Civil 401)
Ch. Barkat Ali's case (PLD 1955 Lah. 548)
Muhammad Afzal's case (1989 CLC 1850)
Ocean Industry Limited's case (PLD 1966 S.C. 738)
West Punjab Govt's case (PLD 1960 S.C. 88)
In view of what has been discussed above, the findings of the first Appellate Court on issue No. 1 is reversed and set aside and upheld the findings of the Trial Court, It is admitted fact that the respondents/defendants did not lay down foundation qua their ownership in the village in question before the Trial Court at the time of filing written statement. The respondents/defendants filed application Under Order 41, Rule 27, C.P.C, for additional evidence to order. Hnro Mutation No 863.
Dated 21.10.1974. Which was dismissed by the first Appellate Court vide order dated 13.5.2002 on the ground that said mutation was cancelled vide Mutation No. 2716, dated 31.8.1976 by the A.C./R.A.
Okara, which was subsequently transferred in favour of the Federal Government and thereafter to other persons as is evident from the order dated 13.5.2002 of the first Appellate Court therefore, the first Appellate Court erred in law to take judicial notice of Mutation No. 863 dated 31.10.1974 on the well-known principle that parties are bound by their pleadings as per law laid down by the Honourable Supreme Court in Mst. Murad Begum, etc. v. Muhammad Rafique, etc. (PLD 1974 S.C.
322). It is admitted fact that the first Appellate Court dismissed the application to allow the respondents/defendants to place on record Mutation. No. 863, dated 21.10.1974, which was dismissed by the first Appellate Court vide order dated 13.5.2002, therefore, as mentioned above, the first Appellate Court erred in law to take judicial notice of the document, which was not part and parcel of the pleadings of the parties and record of the appeal as well as of the Trial Court. The judgments relied by the learned counsel of the respondents Dost Muhammad Khan v. Imam Bakhsh (PLD 1971 Peshawar 150) is distinguished on facts and law as the gift deed was relied by the vendee was produced before the Trial Court whereas in the present case, as mentioned above, the mutation relied by the respondents is not part and parcel of the record. The judgment relied by the learned counsel of the appellants Aimna Bi's case supr^ (1993 MLD 1203) is also distinguished on facts and law as the admission of D.W. 1 is not rebutted by a document, which was not part and parcel of the record, It is settled principle of law that the Court can take notice of the subsequent events, In the present case, respondents/defendants relied upon Mutation No. 863, dated 21.10.1974, which was cancelled subsequently in the year 1976, therefore, the first Appellate Court erred in law to take judicial notice of the document, which is not in consonance with Article 112 of the Qanun-e- Shahadat Order, 1984. It is pertinent to mention here that judicial officers are duty bound to decide the cases after application of mind, In case the order dated 13.5.2002 passed by the first Appellate Court on the application of the respondents/defendants under Order 41, Rule 27, C.P.C, wherein the application was dismissed and findings of the first Appellate Court on issue No. 4 by taking judicial notice of Mutation No. 863, dated 21.10.1974 is not in consonance with each other, which shows that the Presiding Officer has accepted the appeal without judicial application of mind, which is not in accordance with the law laid down by the Honourable Supreme Court in Gouranga Mohan Sikdar v.
The Controller of Import and Export and 2 others (PLD 1970 S.C. 158) and Mollah Ejahar Ali v.
Government of East Pakistan and others (PLD 1970 S.C. 173).
In view of what has been discussed above, the findings of the first Appellate Court on issue No. 1 is also reversed and is not in consonance with the law laid down by the superior Courts in the aforesaid judgments and upheld the findings of the Trial Court on issue No. 4. It is pertinent to mention here that all laws of the country must be on the sleeves of the Judge as per law laid down by the Honourable Supreme Court in Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others (PLD 1992 S.C. 263). This appeal is accepted with no order as to costs.