' The dispute relates to land measuring 116 kanals and 13 marlas, comprising part of Khewat No, 21, situate in village Got Malih, Tebsil Mailsi District Vehari, which was purchased by the appellant from one Muhammad Nasim Khan and his brother Iftikhar Khan, through sale deed dated 19th October.
1961, registered on 23rd January, 1962. Claiming to be a co-sharer in the .Khata and owner in the Estate, the respondent filed a suit to pre-empt the sale. One Ashiq Muhammad alongwith another wbo are no longer in the field now, also filed a pre-emption suit. The appellant resisted the suit, denied the respondent's superior right of preemption and asserted that he himself was a "khatadar".
2. The learned trial Court consolidated both the suits and dismissed the same by his judgment and decree dated 21st November, 1969. Before the learned trial Court, the respondent founded his claim of being a co-sharer in the khata on an exchange deed dated 18th October, 1961 Exh. DW3/1, whereby he acquired land from the vendees, in the khata in question. The deed was registered on 19th October, 1961. The mutation on the basis of the exchange deed was sanctioned on 24th January, 1963. It appears that prior to the suit, giving rise to the instant R. S. A., the respondent filed another pre-emption suit against the appellant, in respect of another transaction dated 26th November, 1962. In that suit he rested his superior right of pre-emption on the aforesaid exchange deed. The respondent did not bring on the record the exchange deed but only the mutation dated 24th January, 1963 sanctioned on the basis thereof was produced in evidence. Though the suit was decreed in respondent's favour, in the trial Court, yet the learned first appellate Court, reversed the decree and by judgment dated 19th October, 1966 dismissed the respondent's suit. The learned Additional District Judge who decided the appeal held that on 26th November, 1962, i. e. On the date of the alienation of the land in the appellant's favour the respondent could not claim to be an owner in the village. The appellant has now heavily relied on the copy of the judgment dated 19th October, 1966, (Exh. D. 8), to defeat the respondent's superior right of pre-emption.
3. It may be observed that in the sale deed dated 19th October, 1961 (Exh-D-6) as well as in the exchange deed the khata number of the land is mentioned as 1/26 whereas in the plaint the respondent described the suit land as bearing Khata No,
21. The incongruity between the plaint and the exchange deed Exh. D3/1 regarding khata number of the land was one of the factors which influenced the decision of the learned trial Court, in discarding the respondent's claim. The learned trial Court also held that the plaint disclosed the sale of the entire khata, which precluded the respondent to claim the status of a co-sharer in the khata, in the course of the trial. The non- disclosure of the exchange deed in the plaint and rejection of the respondent's claim of being an owner in the village in the previous litigation, vide Exh. D. 8, also weighed with the learned trial Court in dismissing the rest ondent's suit.
4. In appeal the learned Additional District Judge exhaustively dealt with the entire evidence produced by the parties. He rejected the appeal of the rival pre-emptor and decreed the respondent's suit in his favour. In the light of the copies of the revenue record he found that the suit land formed part of Khata No, 21 measuring 982 kanals and 5 marlas, out of which some specific Khasra numbers with an area of 116 kanals and 13 marlas, were sold by the vendors to the appellant vide the sale deed dated 19th October, 1961, Exh. D.
6. He maintained that same khewat, as per `Parcha Zamindaran Ishtamal Arazi', bore No. 1/26 The learned First Appellate Court further held that the vendor's mother, sister and a minor brother, were co-sharers in the khata, and that the vendor's share was never partitioned. In this respect the Court referred to mutation No, 186, Exh. D. 2, regarding partition of the khata which was cancelled through review on 18th February, 1967. For the acceptance of the respondent's superior right of pre-emption, the learned Additional District Judge relied on the exchange deed dated 18th October, 1961 Exh. D.
W. 5/I and held that its registration on 16th January, 1962, would make it effective from the date of the execution. As the sale deed in question was executed on 19th October, 1961, but registered on 23rd January, 1962, he held that the exchange deed having been executed, one day prior to the sale deed, the respondent had become a co-sharer in the khata before the sale in dispute and was thus possessed of superior right of pre-emption. The validity of these findings has been assailed by the vendee, in this second appeal.
5. The first submission of the appellant's learned counsel was that in the previous pre-emption suit between the same parties, the acquisition of title, through the exchange deed dated 18th October, 1961, was relied upon, by the respondent but he could not prove to be an owner of the estate, it was thus not open to him to assume the status of a co-sharer in the Khata, in the subsequent litigation and that the copy of the first appellate Court's judgment Exh. D. 8 operated an res judicata. The learned counsel also towed the line of reasoning which prevailed with the learned trial Court, to urge that the plaint showed that the vendors had made sale of the entire Khewat and thus at the trial of the suit the respondent could not shift his stand and make a claim of being a co-sharer in the khewat.
6. I am unable to agree with the appellant's learned counsel. It is quite clear from the copy of the Jamabandi for the year 1961-62 Exh. D. 3, that in the ownership column thereof the names of the vendor's mother, sister and a brother have also been mentioned ; meaning thereby that the vendors were only co-sharers in Khewat No,
21. In Mutation No, 172, Exh. D. 7, evidencing the sale in dispute which was sanctioned on 13th February. 1962, on the basis of the sale deed dated 19th October, 1961, the number of the khewat is mentioned as 21 and its area shown as 982 kanals and 5 marlas. Mutation No, 186, Exh. D 2 amply demonstrates that the vendors made a futile attempt to get the land partitioned under this mutation but it was cancelled, in review, on 18th February, 1967.
The land bears Khewat No, 21 but in the -Purcha Zamindaran Ishtamal Arazi", as held by the learned Additional District Judge, it was shown as having Khewat No. 1/26. There is more than enough evidence on the file to prove that the vendors were co-sharer in the khewat, and the appellant could not have been clothed with the status of the vendee of the entire khata. The view taken by the learned first appellate Court, in this behalf is unexceptionable and the learned trial Court was in error to hold otherwise. Furthermore in para. 3 (i) of the plaint the respondent specifically claimed that he was a co-sharer in the khewat. The objection of the appellant's learned counsel is misconceived.
7. As regards the respondent's superior right of pre-emption, the exchange deed Exh. D. W. 3/1 and the sale deed Exh. D. 6, were executed on 18th October, 1961, and 19th October, 1961, respectively.
Both the documents were subsequently registered. The exchange deed having been executed prior in time, would have precedence over the sale deed. The respondent became a co-sharer in Khewat No, 21, by means of the exchange deed, a day before the sale in dispute. This status was not enjoyed by the appellant The learned first appellate Court, thus rightly found that the respondent was possessed of superior right of pre-emption.
8. It is discernible from the copy of the learned Additional District Judge's judgment dated 19th October, 1966, Exh. D.
8. That in that suit the respondent did not tender in evidence the exchange deed but merely relied on the mutation dated 24th January, 1963. The transaction sought to be pre-empted by the respondent in that suit bad taken place on 26th November, 1962. It was under these circumstances that the learned Additional District Judge held that the respondent could not prove that he was owner of the estate on the date of the sale. The stand taken by the appellant's learned counsel that the judgment Exh. D. 8 would be res judicata, for the. Subsequent suit, is untenable. The cause of action and the relief sought in the instant suit are not the same as in the previous suit. The subsequent suit was thus not hit by the doctrine of res judicata. The respondent was not precluded from establishing his superior right of pre-emption, by tendering in evidence the exchange deed. In Nur Elahi v. The State (1), Kaikaus, J.. Observed that : "The law is that every criminal proceedings (and in fact every civil proceedings) is to be decided on the material on record of that proceeding and neither the record of any other case nor any finding recorded therein should affect the decision. If the Court takes into {{FOOT NOTE}}
(1) P 1960 SC 708 {{FOOT NOTE}} consideration evidence recorded in an other case of a finding recorded therein the judgment is vitiated. A finding recorded in a criminal case is not legal evidence in an other criminal proceeding.
In fact there is an express provision in the Evidence Act, that is, section 43, which debars the Court from taking it into consideration. It makes no difference that the finding is recorded by a High Court or the Supreme Court. It remains irrelevant. The Court which is to determine a matter must determine the matter itself unaffected by opinion expressed in other cases."
' The plea of res judicata, resting on Exh. D. 8 is, thus, not sustainable.
9. It was next argued that the appellant improved his status before-the institution of the suit and- thus the respondent's superior right, stood defeated. The submission was that the suit was tiled on 22nd January, 1963 and whereas the appellant, as borne out from Exh. D. 8, had become B owner of the estate on 26th November, 1962. This contention is also devoid of force, for the reason that the respondent being a co-sharer in the khewat ranks higher in the order of preference embodied in section 15 of the Punjab Pre-emption Act.
10. The last submission of the appellant's learned counsel was that the sale deed Exh D.
6. Was not proved in accordance with law and thus could not be read in .Evidence. This argument is equally ill-founded. On para. No. 1 of the plaint it was averred that the vendors made the sale through sale deed dated 19th October, 1961 registered on 23rd January, 1962. This averment was admitted by the appellant in the corresponding para. Of his written statement. Facts admitted need not be proved.
' No other point has been urged.
11. The upshot of this discussion is that this appeal has no merit and is hereby dismissed with costs.