' SH. HAKIM ALI, J.---Asmatullah, present appellant of the instant R.S.A., had filed a suit for possession on the basis of pre-emptive right of "Mauza Sharik" on 7-9-1976, in the Civil Court of Bahawalpur, regarding a sale evincing through registered sale-deed, dated 8-9-1975, for Rs,58,000, of agricultural lands, measuring 193 kanals and 6 marlas, situated in Mauza Malkani, Tehsil Ahmadpur East, which lands were sold out by Nusrat Khanzada in favor of Allah Nawaz son of Muhammad Sharif, Muhammad Sharif son of Musa, Musa son of Saeed, Muhammad Ramzan and Mehmood sons of Imam Bakhsh and Ghulam Hassan son of Ahmad Bakhsh. On 11-1-1977, an application was filed byAsmatuallh, plaintiff in the aforementioned suit disclosing the death of Musa, one of the vendees/defendant with prayer to grant permission to implead his legal representatives. Notice of that application was also issued on 7-9-1977, on which date legal representatives of Musa had appeared and stated that they would have no objection, if application was accepted. In consequence of that, the application to bring on record the legal representatives of Musa deceased was accepted, and amended plaint after impleading the legal representatives of Musa deceased was submitted in Court on 15-4-1977, while written statement was filed by, all the vendees/defendants on 9-10-1977. In written statement, as a preliminary objection No,1, it was contended that Musa one of the defendants had expired before filing of pre-emption Suit, therefore, his suit was barred by law and could not proceed, as it was affected by rule of partial pre-emption. Even then, the suit was decreed on 27-10-079 and according to appellant; possession was also delivered to the appellant on 23-11-1979. R.F.A.No,28 of 1979 was filed in this Court, in which a stay order was also granted on 27-11-1979, but upon the appearance of Asmatullah appellant, stay was vacated on 25-10-1980, as execution had already completed. First appeal remained on the cause list of the High Court, but was transferred to the learned District Judge afterward, due to enhancement of pecuniary jurisdiction of District Courts. On 18-4-1987, appeal was accepted by learned District Judge and in consequence to that, decree passed in favor of Asmatullah was set aside and the case was remanded to learned Civil Judge with framing of fresh issue No,7-A which is as follows:-- "Whether Musa deceased had died before the institution of the present suit? OPD"
' This remand and framing of issue was challenged by. Asmatuallh, appellant through F.A.O.No, 9 of 1987 Bahawalpur but on 23-2-1993, this Court upheld the remand but modified the remand to the extent that this remand would be considered to have been passed under Order XLI Rule 25 of the C.P.C.
2. Thereafter, learned Civil Judge on 17-6-1993, after recording evidence of both the parties and 'evaluating it, delivered his opinion that Musa had not expired before filing of the suit. This finding was challenged before learned District Judge, who through the impugned order, dated 17-2-1994, held that Musa deceased had met with death before filing of the suit and the suit was filed after impleading the dead person, therefore, one of the vendees having been expired before the filing of the suit, the suit could not proceed on the basis of partial preemption, thus the said appeal was accepted and the suit was dismissed, hence this R.S.A.
3. Appellant's learned counsel submits that in fact, Musa had expired during the pendency of the suit and the learned Civil Judge had correctly in his order, dated 17-6-1993, held that Musa had met with death after filing of the suit. The findings of learned District Judge, through the impugned judgment and decree are not maintainable on the basis of factual as well as legal aspect. Learned counsel has also relied upon Khasragirdawari produced as Exh. D.1. For the years, 1971 to 1975 and another copy of Khasragirdawari with regard to the crops of 1967 to 1971 and produced on the record as Exh.D.3 and both obtained on 7-12-1976. As per learned counsel, this documentary evidence had displayed that Musa was alive when he had obtained these documents from Muhammad Afzal Patwari, who was also produced as P.W.3 in the evidence of appellant. Learned counsel has also contended that D.Ws. 4 and 5 produced by respondents were Uncle of Allah Nawaz, one of the vendees. The evidence of both these witnesses was rightly discarded by the learned Civil Judge, on the ground that they could not tell the date and month and the year of filing of the suit of pre-emption, therefore, they could not be believed with regard to the death of Musa deceased. Commenting upon statement of Mehmood Bakhsh, respondent No,6, learned counsel submits that in his statement, Mehmood Bakhsh had admitted that when the written statement was filed, Musa had died 7/8 months prior to it and if that period was calculated, the death of Musa would be after the institution of the suit, as the written statement was filed on 9-10-1977 while the suit was filed on 7-9-1976. Learned counsel also submits that the reason noted for rejection of khasragirdawri, the documentary evidence Exh.D-2 and Exh.D-3 by learned Additional District Judge that the application and register for delivery of copies must have been produced along with copies of khasragirdawri; otherwise khasragirdawri would have no authenticity, was not correct because the presumption was that officials acts were performed regularly in accordance with Article 129(e) of the Qanun-e-Shahadat Order, 1984. As regards order, dated 7-2-1977, it is stated that legal representatives of Musa when had appeared in Court in the beginning, had not objected to the acceptance of the application to bring on record the LRs of Musa, deceased. It was not necessary that the names of all the legal representatives must have been entered, in the order sheet. It was sufficient to give note that legal representatives of Musa were present. The presumption was to be invoked under Article 129(c) of the Qanun-eShahadat Order, 1984 with regard to judicial acts performed. Learned counsel for the appellant submits that copies of khasragirdawri Exh.D-2 and Exh.D-3 were produced by respondents themselves. Therefore, it was in their special knowledge as to who had obtained copies of khasragirdawri, if Musa was not the person who had received the copies of khasragirdawri and 'his name was wrongly entered in the copies. Therefore, in view of Article 129 of the Qanun-e-Shahadat Order, 1984the fact which was especially in their knowledge, was to be proved by them. Failure to produce such a person and to prove that special fact, was to affect adversely upon the case set up by them, and the rejection of that piece of evidence by learned District Judge was not in accordance With law. As the learned District Judge had failed to raise presumption of correctness to the regular performances of judicial and official acts in accordance with provision of Article 129(e) of the Qanun-e-Shahadat Order, 1984, therefore, the adverse presumption was to be raised as against the respondents/defendants and the respondents were to suffer as they had failed to prove their case.
Failure to raise presumption according to Article 129(e) of the Qanun-e-Shahadat Order, 1984 is a question of law and, therefore, it can be agitated in R.S.A. Learned counsel relies upon AIR 1930 Lahore 443 (Udey Singh and another v. Hari Ram and others) for this proposition. As there is conflict between two Courts with regard to the resolution of a point in dispute, therefore, this Court being a final Court, can go through the evidence, even for resolution of that dispute with regard to findings of facts. Learned counsel has cited 2006 SCMR 586 (Muhammad Din and others v. Mst. Naimat Bibi and others) to support his contention.
4. Replying to the arguments, learned counsel for vendees/defendant (Ch. Naseer Ahinad, Advocate) submits that:--
(i) Musa had expired on 10th Moharram, 1396 AH, which was 13th January., 1976, according to Gregorian calendar while the suit was filed on 7th September, 1976, which was 11th of Ramzanul- Mubarak, 1396 AH, according to the Islamic Calendar. The deposition of all witnesses who were produced by defendants had unanimously given out the date of death of Musa as 10th Moharram.
The date of 10th Moharram was an important date from the Islamic point of view and every Muslim could easily remember this date as it was not a forgettable event of Islamic history. Therefore, statements of all the witnesses must have been believed to this effect and the learned District Judge had correctly decided issue in favor of vendees/ defendants that Musa had expired before the institution of the suit.
(ii) Explaining and commenting upon the evidence of the defendants' witnesses, learned counsel has referred to statements of D.W. 6, Mahmood Bakhsh. According to the learned counsel, if any lapse was found in the statement of D.W.6, that was to be ignored because in the examination-in- chief, it was categorically stated that 10th Moharram was the day of death of Musa, deceased. The admission of D.W.6 Mahmood Bakhsh that Musa had expired 7/8 months before the filing of the written statement was not be believed as against the date of 10th Moharram statedin examination-in-chief. Referring to PLD 1975 SC 311 (Ahmad Khan v. Rasool Shah and others), learned counsel submits that admissions of facts are only relevant and not conclusive. Therefore, an admission which is wrong in point of fact has no binding effect. He has also relied upon 1983 CLC 3157 (Sher Azam v. Mst. Tareena) to quote that admission erroneous in fact and against record would not adversely affect the rights of vendees. Therefore, deposition of Mahmood Bakhsh, D.W.6 was to be ignored with regard to this fact that 7/8 months had preceded to the death of Musa from filing of written statement.
(iii) Witnesses had deposed that month was of Poh (Bikarmi Calendar) while for weather cold was told. These were, according to the learned counsel, material portions of deposition of the witnesses but were not cross-examined specifically on this point. Therefore, material points having not been cross-examined are to be presumed legally admitted. To support this contention, learned counsel has referred to 1991 SCMR 2300 (Mst. Noor Jehan Begum through legal representatives v. Syed Mujtaba Ali Naqvi), 2001 MLD 1277 (Muhammad Akram v. Muhammad Raul), 1985 CLC 1974 (Muhammad Bakhsh v. Nisar Ahmad), 1980 CLC 1611 (Ghulam Rasool and 4 others v. Muhammad Hanif), 1989 CLC 2287 (Allah Dad v. S. M . Khan).
(iv) Learned counsel also submits that when evidence is equally capable of two interpretations, in such an event, appreciation of evidence of learned lower appellate Court should be accepted.
Death certificate was to be produced by the appellant but it was withheld and not produced.
Therefore, it would be presumed that the party had intentionally withheld it as entries of that document were going to affect his interest contrarily. Therefore, adverse presumption due to non- production of death certificate of Musa, was to be raised as against the appellant.
(v) The order, dated 7-2-1977, passed on the application for impleadment of L.Rs, of Musa, noting presence of L.Rs, of Musa was not correct, according to the record of the Court itself because in the main order sheet, defendant No,1 Allah Nawaz, was present while Muhammad Sharif son of Musa, Muhammad Ramzan, Mahmood sons of Imam Bakhsh and Ghulam Hassan were present and their presence was recorded in the main order sheet. In that order sheet, there was no mention of presence of L.Rs, of Musa deceased. Moreover, it was not believable that all L.Rs, of Musa had appeared on that date, without any servicehaving been effected upon them. There was no proof on the record that L.Rs, of Musa deceased were served for that date. Therefore, order, dated 7-2- 1977 recording no objection on behalf of L.Rs, of Musa deceased for the acceptance of application of impleadment of L.Rs, Musa, deceased was against all the probabilities as well as contrary to the facts having occurred on that. It was, therefore, that objection in the written statement with regard to the death of Musa deceased was raised.
(vi) As to when deceased expired is a question of fact, which controversy having been resolved by the learned District Judge in favor of respondents, it was not questionable in R.S.A. Before this Court.
(vii) The statement of Muhammad Afzal Patwari, P.W.3 was not in any manner beneficial to the case of the plaintiff/appellant because the register for the delivery of copies of khasragirdawri (Exh.D-2 and Exh.D-3), was not produced into evidence. It could not, therefore, be presumed that Musa was the person who had received the copies of khasragirdawri. Some other person might have obtained the copies after the death of Musa deceased. Therefore, from this documentary evidence, it cannot be said that Musa himself had received the copies of khasragirdari in his life time.
(viii)The case has to be seen in the light of oneness of the sale as L.Rs, of Musa, deceased were not impleaded at the time of filing of pre-emption suit and a dead person (Musa predeceased) having been impleaded, the suit was correctly dismissed on the basis of rule of partial pre-emption.
Learned counsel has referred to 1999 CLC 1526 (Muhammad Din v. Sher Muhammad )PLD 1987 Lahore 232 (Abdul Qadir and 5 others v. Muhammad Umar and others) and PLD 1987 Lahore 387, (Muhammad Suleman v. Abdul Rashid and 13 others).
(ix) Learned counsel also submit that an order for impleadment of LRs of a dead person if passed after the expiry of limitation period, that would not be warranted in the eye of law, because the suit cannot be filed against a dead person and it is nullity in the eye of law. Seeks support from 1985 CLC 2555 (Capt. Shahid Saleem Lone and others v. Ata-ur-Rahman and others).
(x) Order XXII of the C.P.C. Is applicable when suit or appeal is pending. Therefore, a person, who had met with death before filing of the suit is not a party to the suit and his L.Rs, cannotbe brought on record under Order XXII of the C.P.C. Refers to AIR 1932 Sind 220 (Pitamberdas and others v.
Bhawanilal and others).
(xi) Judgment of the learned District Judge, not being perverse, cannot be reversed.
5. Lengthy arguments, examination of number of citations, appreciation of law and facts having brought me to conclude in the coming ways and with the following reasons:--
(i) It is an admitted fact that pre-emption suit was instituted on 7-9-1976. It is also an admitted fact that written statement was submitted by vendees/defendants along with L.Rs, of Musa, deceased on 9-10-1977.
(ii) Question in dispute is the death of Musa deceased, which had preceded or had post-occurred from the filing of the suit. To determine the exact date, month and year of the death of Musa deceased, two kinds of evidence have been brought on record, one is in the shape of oral evidence of witnesses and the other is of documents.
(iii) Before analyzing the worth of oral evidence, I would like to discuss the documentary evidence first because the documents A speak truth than the persons. Exh.D-2 and Exh.D-3 are copies of two khasragirdawris which were produced by vendees/ defendants themselves into their evidence. In other words, these two documents were brought on the record by the vendees/ defendants/respondents themselves and they were the persons, who were relying upon these documents. Therefore, they cannot challenge the authenticity, veracity and correctness of those documents. It is clearly mentioned in these documents that copies of khasragirdawri for the years, 1971 to' 1975 (Exh.D-2) and khasragirdawri of 1967 to Rabi 1971 (Exh.D-3) were prepared and delivered upon the demand of Muhammad Musa son of Saeed Ahmad, caste Khokhar. The person preparing those two documents was Muhammad Afzal Patwari, who had signed with his name as well as with date of 742-1976 and this date was certainly after the filing of the suit for pre-emption.
If Muhammad Musa was dead at the time of obtaining these' certified copies of khasragirdawri, then who was the person, who had obtained copies of those documents from Muhammad Afzal Patwari, was the burden of vendees/defendants to disprove and controvert this material and important fact to display that Muhammad Musa was not alive at the time of obtaining copies of those khasraigirdawris. One cannot imagine and believe that adead person can fetch certified copies from a living person. The display of the name of Muhammad Musa, if was wrongly or incorrectly written by Muhammad Afzal Patwari while obtaining and delivering these documents, it was the bounden duty of the vendees/defendants to object to it and to get it corrected from the person preparing and delivering these documents at the time of its delivery on 7-12-1976 or even thereafter before filing these documents into evidence. Why it was not foresighted that this endorsement of Muhammad Musa showing him alive, could be used against them into evidence.
There is no explanation and no evidence on the record to controvert this most important fact and aspect of the case. The vendees/defendants have failed to give out the name of the person who had actually received if he was not Muhammad Musa, those copies (Exh.D-2 and Exh.D-3) from Muhammad Afzal Patwari if Muhammad Musa, had predeceased. They have also failed to adopt a version into evidence to support their case that Muhammad Musa was not the person, who had received it, but some other person was its recipient, who had fetched it from Muhammad Afzal Patwari. Therefore, I cannot endorse the view and accept the explanation of the learned counsel for the respondents that documents of khasragirdawri were not received by Muhammad Musa,, deceased.
(iv) Muhammad Afzal Pawari, who had prepared Ex.D-2 and Exh.D-3, was brought into witness box, by the appellant as P.W.3. His evidence cannot be discarded as he had supported the delivery of these documents to Muhammad Musa son of Saeed Ahmad, upon' whose instance, these documents were prepared and delivered. Mere non-production of register for delivery of copies, cannot detract from the value of his evidence because that register was not necessary to prove his statement as he had entered' into witness box to depose with regard to Exh.D-2 and Exh.D-3, the original documents which were prepared and delivered by him and were already on the record of the Court. Register for delivery of copies was not necessary for confirmation of preparation and delivery of khasragirdawri Exh.D-2 and Exh.D-3 and was never asked or demanded by any party to the proceedings. It would be, therefore, a far-fetched idea that due to non-production of register and delivery of copies, Exh.D-2 and Exh.D-3 must not be believed. Statement of Muhammad Afzal Patwari, P.W.3 is statement of an independent official witness, who' cannot be disbelieved upon mere conjectures and presumptions. Therefore, this most important documentary evidence produced by the vendees/defendants themselves cannot be thrown away simply on the reasoning and explanation given by the learned counsel for the respondents. Believing these documents Exh.D-2 and Exh.D-3 to be true, death of Musa is held to have occurred after the filing of the suit for pre-emption.
(v) There are many other blunders on the part of vendees/defendant and mistakes in their versions and evidence, which have shown the way to me to conclude that Muhammad Musa had not predeceased from the filing of the suit. Believing version of vendees/defendants that on 7-2-1977 L.Rs, of Musa deceased were not present in Court on that date, therefore, it could not be attributed an admission as against them. If this version be based upon truth, even then there is no denial to this fact that respondent No,2 Muhammad Sharif son of Musa was present on 7-2-1977, even in the main order sheet, which has been referred to by the learned counsel for the respondents. Moreover, all the other defendants except Musa were present on 7-2-1977. This fact cannot be refuted as is evident from the main order sheet of the suit, dated 7-2-1977. If Musa had expired before filing of the suit, all these persons vendees/defendants must have arisen to the situation and must have objected to the acceptance of the petition for bringing on record the L.Rs, of Musa deceased. No objection having been raised from them at that stage, is in fact an admission on their part that Musa had expired after the filing of the suit; otherwise they must have resisted the impleadment. It must be kept in view that all the vendees/defendants must have known that Musa had died per or post-deceased the filing of the suit because he was their partner vendee of the sale transaction, and it cannot be presumed that they were unaware of that fact, at the time of granting permission to bring on record the L.Rs, of Musa, deceased. Their failure not to take up such objection, in fact is an estoppel, which brings them to raise such a plea afterward. Judicial and official acts are to be presumed to have been regularly performed according to Article 129 of the Qanune-Shahadat Order, 1984. If these are not performed with regularity, then the exceptional circumstances are to be brought on the record by the person/party, who is controverting those facts. He has to prove that these acts were not performed with regularity and correctly. There is no explanation as to why Muhammad Sharif son of Musa had not objected to the permission being accorded to bring on record the L.Rs, of Musa deceased on 7-2-1977.
(vi) As regards the insistence of learned counsel for the respondents that 10th Moharram, month of Poh and cold weather were thehard facts which could not be forgotten by a witness, it cannot prove the fact that witnesses are truthful witnesses or they had deposed correctly. It is important to mention here that facts mentioned in examination-in-chief are decided upon the question put to a witness in the cross-examination. In the cross-examination, falsity or truthfulness of the statement is adjudged by putting questions to the witnesses which brings to the surface the reality of the facts and the veracity of the witness. Examination-in-chief and the cross-examination make the statement of a witness complete which has to be considered as whole for its believability and to scrutinize it with regard to its truth or falsehood.
(vii) D.W.4, Peer Bakhsh and D.W.5 Khuda Bakhsh both are relative witnesses of respondents, as they had admitted in their statements that Allah Nawaz son of Muhammad Sharif defendant was their uncle. Therefore, this sole fact can be sufficient to discard their evidence yet I have examined their statements in depth also. Statement of D.W.4 Peer Bakhsh was not believed correct by the learned Civil Judge, who had held that he had not known the date and month of filing of suit for pre-emption, then how he could tell the day, date, month and year of death of Musa , deceased.
(viii)There is an interesting question put to D.W.5 Khuda Bakhsh, who had admitted in his cross- examination that Musa had told him about the filing of the suit (suit for pre-emption) in summer, which had come after cold weather. This question has in fact smashed the case of defendants/respondents, as it proves the life of Muhammad Musa after the filing of the suit. If Musa had predeceased the filing of the suit, he could not tell the witness with regard to the filing of the suit.
(ix) D.W.6 Mahmood Bakhsh, defendant No,8 had himself admitted that when written statement was filed, Musa had died 7/8 months before its filing. If calculated from these 7/8 months of the death of Musa, it would be near about the filing of the application for bringing on record L.Rs, of Musa deceased in the month of January, 1977. Therefore, from the oral evidence even, the fact of death of Musa deceased after the filing of the pre-emption suit has been proved. Therefore, I cannot accept the version of the learned counsel for the respondents that inadvertent statement of a witness in examination-in-chief was not to be believed to be used as against the party producing him. It cannot be ignored in the circumstances of the case. As noted above, D.W.6 Mahmood Bakhsh is not the only witness onwhose evidence, death of Musa deceased after the filing of the suit is proved, but analysis of the statement of other witnesses D.W.4 and D.W.5 has also proved this fact that Musa had died after the filing of the suit.
(x) As to failure to cross-examination upon the material points of fact stated in examination-in- chief, suffice it to say that it is not necessary that each and every word and fact even immaterial must be cross-examined and again put in the mouth of the Witnesses for getting his admission or denial. The cross-examination has to proceed in such manner so as to disprove, the version adopted in the examination-in-chief. The purpose and aim of cross-examination is to bring out the truth if the witness has stated false in his examination-in-chief. The cumulative effect of statement consisting of examination-in-chief and cross-examination has to be seen while appreciating the evidence. If this principle is kept in view, the analysis of statement of witness has fully satisfied this rule. Statement of each witness, giving the same day and date, in fact has given out the smell of its tutored nature. The repetition of some tutored sentences or facts in the examination-in-chief cannot be considered to promote the case of party or corroborate it when in cross-examination the version and statement of a witness is demonstrated to have been deposed falsely and incorrectly by putting different questions and reply to it. Same day, month and weather stated are all, to my mind, in the present case seems to be tutored facts, therefore, it was not necessary that these facts must have been repeated again in the cross-examination because the answers to it would have been the same.
(xi) Accordingly, I do not consider that the learned District Judge has correctly appreciated the evidence and had drawn correct conclusions from that evidence. I am conscious of the fact that in R.S.A. The appeal is decided on questions of law, but I cannot omit to say that questions of law are formed on the basis of facts, their analysis, proof and disproof. If documentary evidence is ignored or its value is not correctly appreciated H while disposing of the case or the wrong conclusions are drawn from the documentary evidence, which are ex facie perverse, this Court has to interfere in that situation particularly when there is difference of opinion in the judgment of both the learned Courts below. To resolve the controversy as to what is right and who is wrong, this Court has to decide. Therefore, keeping in view the above facts and law on the subject and the discussion noted above, it is concluded that Musa had died after the filing of the pre-emption suit, as was found by the learned trial Court below.
6. Accordingly, I accept this R.S.A. And reverse the judgment of the learned District Judge, dated 17- 2-1994. Consequently, the suit of the plaintiff/appellant as decree by the learned trial Court is restored with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.