' GHULAM RABBANI, J.---This appeal, as of right, has been preferred under Article 185(2) of the Constitution of Pakistan assailing the judgment dated 30-12-2002 passed by a learned single Judge of Lahore High Court.
2. Briefly stated the relevant facts of the case are that one Mst. Ghulam Sughran sold out 428 kanals and 13 marlas, Mouza Tal Chiragh Tehsil Mailsi District Vehari to the appellants/vendees by way of Registered Sale-deed dated 31-1-1978, for a consideration of Rs,5,00,000. The pre-emptors Ghulam Farid (ii) Muhammad Sharif, (iii) Muhammad Azeem (all, now dead, through their legal representatives), and (iv) Noor Muhammad and (v) Muhammad Siddique, respondents Nos.3 and 4, herein, instituted the suit for possession of the afore-said land by way of pre-emption on the ground that they happened to be co-sharers in the khatas and khewatdars in the Mouza. Their suit was decreed vide judgment/decree dated 11-6-1986. An appeal filed thereagainst by vendees/appellants, herein, was, however, allowed on 29-6-1988, trial Courts judgment/decree was set aside and the suit was dismissed. On second appeal by the pre-emptor/respondents, the learned Single Judge of Lahore High Court set aside the 1st Appellate Court's judgment and decree.
And restored the one passed by Trial Court vide judgment impugned herein.
3. We heard learned counsel for the parties and with their assistance examined the record before us. The trial Court while deciding the case had dealt with as many as 9 issues, however, on second appeal the parties had, before learned Single Judge, offered their argument only on following four issues which were determined in favour of the respondents/pre-emptors:--
(1) Whether the plaintiffs had got superior tight of pre-emption as against the vendee-defendants qua the suit-land?;
(6) Whether the suit is bad for non-joinder of necessary parties?;
(8) Whether the plaintiffs are estopped to bring this suit on account of their conduct?;
(10) Whether the present suit is for partial pre-emption?
4. In regard to issue No,1, noted hereinabove, it may be stated that in support of the superior right of pre-emption of the plaintiffs, their counsel had tendered in evidence documents viz. Exhs.P/1 to P/3 and closed his side. Exh.P-3 Jamabandi related to Khata No, 27 of Mouza Tal Chiragh where the disputed land is situated. Relying on this documents, learned Single Judge held the plaintiffs to have superior rights of preemption as against defendants and in this, he observed that "According to this document all the original 5 plaintiffs are owners of the "estate". As against this there is no evidence from the defendants' side that they are also owners of "estate". Thus it is held that the plaintiffs/appellants have superior rights of pre-emption as against the defendants/respondents."
In his arguments learned counsel for the appellants heavily criticized this finding. His contention was that learned Single Judge had acted illegally in holding that the plaintiffs were owners in the estate on the basis of Jamabandi Exh. P-3 which, by itself, was not enough to prove the right of preemption in favour of the plaintiffs. In this behalf, it may be stated that perusal of the plaint reveals that the preemptor's had stated in clear terms that they being co-sharers in disputed khatas and Khewatdars in Mouza had superior right of preemption. We have also noted that besides Exh.P-3, another document viz. Exh.P-2 was also tendered in evidence. Both these documents are Jamabandies having presumption of truth attached to them. Exh.P-2 reflected that plaintiffs Nos. 1 to 4 were co-sharers in Khata No,4 while Exh. P-3 showed that all the original plaintiffs were owners of the "estate". The claim of the plaintiffs was also supported by Mehr Umar Bakhsh (P.W.1) by stating that they are Khewatdars and sharers in khatas while the defendants are strangers. On the evidence of Mehr Umar Bakhsh (P.W.1) objection was raised that his statement was recorded after the closure of defendants' evidence. It was stated that his statement could not be read in evidence as the side of the plaintiffs was closed, after tendering the documents in evidence, without reserving the right of reply as per Order XVIII, Rule 3, C.P.C. Here, it may be mentioned that although the provision of Rule 3 of Order XVIII, C.P.C. Is not a barring provision of law, yet the learned Single Judge determined this point in favour of the plaintiffs, rightly so, by observing, "It is also submitted that no doubt P.W.1 was recorded after the close of the defendants' evidence and his statement for affirmative was also not reserved, despite that if the respondents were feeling any prejudice, they should have objected at the relevant time when the statement of P.W.1 was being recorded, therefore, since this objection was not raised at the relevant time, they are now estopped to raise the same. Reliance on 1998 M LD 1793 and 1996 SCM R 662. It is finally concluded that even if there is some procedural defect in the recording of evidence, the same is curable under section 99 of the C.P.C.
5. Arguing further on the issue No,1, learned counsel for appellants stated that since Muhammad Siddique plaintiff was not a co sharer thus stranger and the other plaintiffs had joined him as co- plaintiff, they had lost their right and were to sink to formers' status of being stranger. This argument appears to loose its force since Muhammad Siddique plaintiff was found to be owner of the "estate" by the learned Single Judge on the basis of Exh.P-3 as stated herein above.
6. Regarding issues whether the suit was bad for non-joinder of necessary parties and it was for partial pre-emption,. Learned counsel for appellants challenged the finding of learned Single Judge on these issues, as well with vehemence. He contended that plaintiff Muhammad Azeem expired during pendency of the suit and Mst. Noor Bibi and Mst. Ehsan Bibi, his widow and daughter, respectively, who were impleaded on his death, had, without consent of other plaintiffs, withdrawn from their rights qua the suit as well as Zar-e-Panjum vide statement of their counsel, therefore, the suit clearly became as one for partial pre-emption and bad for non joinder of necessary parties.
Learned counsel for the respondents controverted the above arguments and supported the findings of the learned Single Judge. In this, behalf it may be stated that above-named two ladies had abandoned their = claim through the statement of their counsel recorded on 6th June, 1983.
Leained Single Judge considered this aspect of the case and found that all the plaintiffs were being represented by the same counsel who had made statement about the withdrawal from the suit as well as from the right in the share of Zar-e-Panjum; thus, held that in such an eventuality the other plaintiffs were entitled to preempt the whole land in dispute. He observed and rightly so, "It is repeatedly held by the Hon'ble Supreme Court that in such eventuality, neither the suit becomes bad for non-joinder of parties nor it becomes one of partial pre-emption. Reference can be made to 1998 SCMR 2716, PLD 1978 SC 133 and 1987 SCM R 1874. It is thus held that neither the suit was bad for non-joinder of necessary parties nor it was for partial pre-emption."
7. As regards the remaining issue whether the plaintiffs were estopped to bring the suit on account of their conduct, it may be noted that on this issue it was the case of the appellant that Mst. Faiz Elahi, (defendant No,80) and Mst. Fazal Elahi (defendant No,81) are closely related to plaintiffs Muhammad Sharif and Muhammad Siddique, such as; the former lady happened to be daughter in law of Muhammad Sharif plaintiff while the other lady was wife of Muhammad Siddique, therefore, looking to the relationship of the plaintiffs and defendants inter se, plaintiffs be considered to have knowledge of the transaction of sale and that there was also evidence on record that they had actively participated in the transaction on behalf of above-named two ladies, therefore, both the plaintiffs had lost their right of pre-emption by waiver. We have gone through the evidence on this point available on record. Pre-emptors examined Mehr Umar Bakhsh (P.W.1), who in his statement stated in categorical terms that they were not there in transaction nor had knowledge of sale. In cross-examination, he stated that Mst. Faiz Elahi, daughter in law of pre- emptor Muhammad Sharif, was living separately from him so also vendee Mst. Fazal Elahi was living in the house of her parents. He categorically denied that the sale transaction took place with their consent. On the other hand no strong and solid evidence was adduced by the other side to establish that the above-named two ladies had purchased the property in question with advance knowledge of the pre-emptors so as to hold that the latter had acquiesced in the sale of the property in favour of these two ladies. Be that as it may, learned Single Judge of the Lahore High Court has appropriately dealt with this ground and determined the same in favour of the pre- emptors pertinently observing that, "This claim of the respondents/defendants is not supported by any law, rather, on the other hand, the Hon'ble Supreme Court had repeatedly held that mere presence of the pre-emptor at the time of bargain would not constitute a waiver. Even if he had the knowledge of sale but due to lack of finances he could not purchase it, still he could file a suit for pre-emption. To establish waiving of right of pre-emption, it is incumbent upon the defendants to establish through evidence, the conduct of the plaintiffs indicating that he had clearly shown by his conduct that he had abandoned his right of preemption. In the instant case, there is nothing in the evidence of the defendants to show any such conduct on the part of the plaintiffs, whereby they had abandoned their right to pre-empt the property in dispute. Reference can be made to 2002 SCM R 49, 1999 SCM R 201, 1996 SCMR 806 and 1996 SCM R 1729."
8. Lastly, learned counsel for appellants alleged, during the course of arguments, mala fides in instituting the suit by plaintiffs. On this, its may be stated that mala fide is not a word of art but it is a fact which needs to be established by appropriate evidence. Nothing, however, was said that any evidence on this point was adduced by the other side. Learned counsel referred to cases of (i)
Mehr Allah Ditta and another v. Muhammad Ali and another (PLD 1972 SC 59), (ii) Nazar Muhammad and another v. Talib Hussain (1991 SCM R 1320), (iii) Muhammad Amin v. Maqbool Ahmad (1993 SCM R 498), (iv) Shahmand and others v. Allah Bakhsh (1997 SCM R 424) and (v)
Abaid-ur-Rehman and others v. Mahmand and others (1999 SCM R 2017, however, the same appears to be in different facts and circumstances and are of no assistance to the appellants.
9. Having heard the learned counsel for the parties, we had dismissed this appeal by our short order dated 2-12-2010 leaving the parties to bear their own costs. These are the reasons for the same.