CH. MUHAMMAD TARIQ, J. --- This regular second appeal has been directed against the judgment and decree dated 29-4-2003 passed by the learned Additional District Judge, Narowal who accepted the appeal and set aside the judgment and decree dated 26-10-1981 passed by the learned trial court"
2. Brief facts of the case are that the suit-land fully described in para No,1 of the appeal was sold vide sale-deed registered on 28-1-1977 in favour of predecessor-in interest of respondents Nos.1 to 6 and respondents Nos. 7 to 9 against a consideration of Rs .3,000.
3. The appellant filed a suit for possession through pre-emption in the Civil Court on the ground that the appellant is collateral of the vendor and also on the ground of co-sharer.
4. That defendants Nos.1 and 2 contested the suit and submitted their written statements. Out of the divergent pleadings of the parties, following issues were framed:-- ISSUES.
(1)Whether the plaintiff has superior right of pre-emption against the vendee defendants?
(2) Whether the sum of Rs,32,000 was fixed in good faith or actually paid as price of the suit-land?
(3) Market value?
(4) Whether the suit is improperly valued for the purposes of court-fee.
(5) Relief,
5. After recording the oral as well as documentary evidence of the parties, the learned trial court vide its judgment and decree dated 26-10-1981 decreed the suit. The defendants Muhammad Sadiq etc. filed an appeal which was allowed, on 29-4-2003 by the learned Additional District Judge, Narowal, hence this regular second appeal.
6. Learned counsel for the appellant contends that the appellant/plaintiff has got a superior right of pre-emption being collateral of the vendor and he is also co-sharer. He has pointed out that Exh.P- 8 is .a certified copy of a pedigree-table which was produced by the plaintiff during his evidence before the learned trial court. He further pointed out that the appellant/plaintiff was allowed to produce Exh.P-8 as additional evidence but this document was removed during the proceedings pending before the learned appellate court and that is why the impugned judgment and decree was passed against the appellant/plaintiff and the learned appellate court declared that the appellant failed to .establish his superior right of pre-emption being collateral of vendor, therefore, the case be remanded to the learned trial court for an inquiry and reconstruction of Exh. P-8.
7. On the other hand, learned counsel for the respondents has vehemently opposed the R.S.A. He contends that the appellant/plaintiff has no superior right of pre-emption against the vendee because the appellant is not a collateral of vendor. Learned counsel further contends that simple production of pedigree-table is not sufficient unless it is proved. In this behalf, learned counsel for the respondents has relied upon 1999. SCMR 1800, 1994 SCM R 559 and 1989 SCM R 1026. He further contends that R.S.A. be dismissed and the impugned judgment and decree be maintained.
8. Arguments heard. Record perused.
9. At present the contention of the learned counsel for the respondents or law produced by him is not a question in issue because Exh.P-8 is not available in the original file of learned trial court, The order of learned trial court dated 7-7-1980 reveals that the plaintiff filed an application to produce the additional evidence i,e, pedigree table for the year 1865. This application was allowed on 7-7- 1980 subject to payment of costs of Rs,150 and thereafter it was produced in the evidence as Exh.P- 8 which is not available with the record of trial court. Unless this document B is brought before the court, it could not be argued and no result whatsoever could be derived from this document. The presumption is that Exh.P-8 has been removed by some one with ulterior motive, therefore, without going into the merits of the case, R.S.A. is accepted, case is remanded back to the learned appellate Court who is directed to conduct an inquiry, re-construct Exh.P-8 with the assistance of both the parties and fix the responsibility of the culprit, thereafter the case be decided on merits expeditiously preferably within a period of four months from the receipt of this order.