' ASIF SAEED KHAN KHOSA, J.---The history of these appeals by leave of the Court is rather long and the long and short of it is that three suits for possession through pre-emption filed by the appellants' predecessor namely Najeeb Ali against the respondents instituted on 19-5-1975 were dismissed by the learned Civil Judge, 1st Class, Jhelum on 4-3-1977, appeals filed in that regard by the appellants' predecessor were dismissed by the learned Additional District Judge, Jhelum on 17- 7-1979, Regular Second Appeals filed in that connection by the appellants' predecessor were also dismissed by the Lahore High Court, Rawalpindi Bench, Rawalpindi on 13-2-1988 and thereafter Civil Appeals Nos.197, 198 and 199 of 1990 filed by the appellants' predecessor in that respect were disposed of by this Court on 9-4-1991 because by then applications under section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 had already been filed by the appellants' predecessor before the learned trial court for fresh decision of his suits in terms of the said legal provision. The said applications had been filed by the appellants' predecessor before the learned trial court on 19-1- 1991 and the same were dismissed by the learned Civil Judge, 1st Class, Jhelum on 14-5-1991, revision petitions filed by the appellants' predecessor against that order were allowed by the learned Additional District Judge, Jhelum on 27-10-1991 directing the learned trial court to decide the suits filed by the appellants' predecessor afresh on merits and subsequently Writ Petitions filed by the respondents against that order passed by the learned Additional District Judge, Jhelum were dismissed by the Lahore High Court, Rawalpindi Bench, Rawalpindi on 4-5-1998. Thereafter some fresh evidence was recorded by the learned trial court in the fresh proceedings in the suits filed by the appellants' predecessor and the said suits were decreed by the learned Civil Judge, 1st Class, Jhelum vide judgments and decrees dated 8-3-1999, appeals filed by the respondents against those judgments and decrees were dismissed by the learned District Judge, Jhelum on 17- 7-1999 and finally the respondents' revision petitions filed in that regard were allowed by a learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi through the impugned consolidated judgment dated 16-12-2003 and, resultantly, the suits filed by the appellants' predecessor were dismissed. Hence, the present appeals by leave of this Court.
2. We have heard extensive arguments addressed by the learned counsel for the parties and have gone through the record of these cases with their assistance. It has been argued by the learned counsel for the appellants that the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi had allowed the respondents' revision petitions and had dismissed the suits filed by the appellants' predecessor on two grounds but, according to him, both the said grounds were untenable. In this respect the learned counsel for the appellants has pointed out that dismissal of the respondents' Writ Petitions by the Lahore High Court, Rawalpindi Bench, Rawalpindi on 4-5-1998 had attained finality and the said Court had conclusively held in the judgment passed in those Writ Petitions that the applications filed by the appellants' predecessor under section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 were competent and maintainable and in this view of the matter the same Court could not subsequently hold on 16-12-2003 that the applications filed by the appellants' predecessor under section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 were not maintainable. The learned counsel for the appellants has gone on to submit that the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi had misread the record of these cases while holding that the learned trial Court and the learned first appellate court had failed to refer to, the evidence produced by the respondents in rebuttal of the evidence produced by the appellants for proving Talb-i-Ishhad. He has highlighted from the record that the learned trial Court as well as the learned first appellate court had in fact expressly referred to the evidence led by the respondents in that regard and, thus, the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi had committed misreading as well as non- reading of the relevant record in that connection. As against that the learned counsel for the respondents has referred to a judgment rendered by the Supreme Court of India in the case of Jasraj Indersingh v. Hemraj Multanchand (AIR 1977 SC 1011) to maintain that while deciding these appeals this Court can attend to all the relevant issues arising in these cases even if the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi had failed to advert to the same. He has gone on to submit that the respondents were affectees/oustees of Mangla Dam and on account of issuance of various notifications from time to time under section 8 of the Punjab Pre-emption Act, 1913 the right of preemption did not exist in respect of the land obtained by , the respondents as a result of their dislocation due to construction of Mangla Dam. He has pointed out that such non-existence of the right of preemption continued to be recognized by tie Punjab Pre- emption, Ordinance XVIII of 1990 as well as the Punjab Pre-emption Act, 1991 and it was on this very basis that the suits for possession through preemption filed by the appellants' predecessor had been dismissed by all the three courts below in the first round of litigation and on 9-4-1991 while disposing of Civil Appeals Nos. 197, 198 and 199 of 1990 this 'Court had refused to interfere with such dismissal of the suits. According to the learned counsel for the respondents the relevant notifications regarding non-existence of any right of pre-emption qua the land acquired by the respondents as affectees/oustees of Mangla Dam were fully in force at all the relevant times during the litigation in the present cases and, thus, non-maintainability of the suits filed by the appellants' predecessor was a factor which was undeniable at all the relevant times. The learned counsel for the respondents has also argued that in the course of fresh decision of the suits filed by the appellants' predecessor in terms of subsection (1) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 and subsection (1) of section 35 of the Punjab Pre-emption Act, 1991 it was incumbent upon the appellants to establish making of Talb-i-Ishhad by their predecessor, as required by subsection (2) of those sections, but no sufficient or adequate proof had been produced by the appellants in that regard and, therefore, the suits in issue were liable to be dismissed on that score alone. The learned counsel for the respondents has further submitted that the appellants or their predecessor had failed to bring on the record sufficient or satisfactory evidence regarding their claimed superior right of preemption as co-sharers because a copy of Register Haqdaran Zameen (Exhibit-P3) brought on the record by them did not even mention their names as co-sharers of the property in issue. He has maintained that such a plea regarding superior right of pre-emption could not conclusively be established without receiving any support of any documentary evidence. The learned counsel for the respondents has lastly argued that the original plaintiff in all these suits namely Najeeb Ali, the appellants' predecessor, had died prior to the relevant suits being decreed in his favour and, thus, by virtue of the law declared by this Court in the case of Muhammad Ishaq v. Muhammad Sadiq (2007 SCM R 1478) the said suits could not subsequently be decreed in favour of the appellants. He has elaborated that the provisions of section 16 of the Punjab Preemption Act, 1991 did not stand attracted to the cases in hand because of the failure of the appellants to establish making of any of the demands under section 13 of the said Act by their predecessor, particularly Talb-iIshhad contemplated by the provisions of subsection (2) of section 35 of that Act. With these submissions the learned counsel for the respondents has maintained that the suits filed by the appellants' predecessor were liable to be dismissed on so many scores and, therefore, the impugned judgment handed down by the learned Judge-in-Chamber of the Lahore High Court, Rawalpindi Bench, Rawalpindi may not be interfered with by this Court.
3. After hearing the learned counsel for the parties at some length and going through all the relevant record of these cases with their able assistance we have straightaway observed that undisputedly the respondents were affectees/oustees of Mangla Dam and they had acquired the properties in issue as a consequence of their dislocation caused by construction of Mangla Dam. It is also admitted at all hands that at all the relevant times, particularly at the time of filing of the suits by the predecessor of the appellants, there did not exist any right of preemption qua the properties so acquired by the respondents and the relevant notifications issued in that regard from time to time under A section 8 of the Punjab Pre-emption Act, 1913 are a part of the record of these cases. It was, therefore, a foregone conclusion that at the time of acquiring of the relevant properties by the respondents as affectees/oustees of Mangla Dam and also at the time of filing of the suits for possession through pre-emption by the appellants' predecessor namely Najeeb Ali there did not exist any right of preemption qua such properties and this aspect of the matter had concurrently and conclusively been decided by all the three learned courts below in the first round of litigation and even this Court had not interfered with that finding while disposing of Civil Appeals Nos. 197, 198 and 199 of 1990 on 9-4-1991. It is true that by virtue of subsection (1) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 and subsection (1) of section 35 of the Punjab Pre- emption Act, 1991 the suits filed by the appellants' predecessor were to be decided afresh but it may be equally true that such decision afresh could not create a right of pre-emption qua the relevant properties if such right did not exist at the relevant time by operation of the law. In this view of the matter the suits filed by the appellants' predecessor were liable to be dismissed again even in the fresh round of litigation because such suits were not maintainable at all on account of non-existence of any right of pre-emption qua the properties in issue. It has feebly been argued by the learned counsel for the appellants that a witness of the respondents had conceded before the learned trial Court that at the time of the second round of litigation the right of preemption did exist vis-a-vis the properties in issue but he has not been able to deny that a concession against the law cannot be accepted as a valid concession. We may also observe here that a decision of a suit afresh contemplated by subsection (1) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 and subsection (1) of section 35 of the Punjab Pre-emption Act, 1991 meant a fresh trial and decision of the suit where it was competent and maintainable a'the time of its original institution and, therefore, a suit barred by any law at the time of its original institution could not be treated as competent or maintainable for the purposes of a fresh trial and decision.
4. We have found the learned counsel for the respondents to be quite justified in maintaining that in the fresh round of litigation made permissible by the provisions of subsection (1) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 and subsection (1) of section 35 of the Punjab Pre- emption Act, 1991 it was incumbent upon the appellants under subsection (2) of section 36 of the Punjab Preemption Ordinance XVIII of 1990 and subsection (2) of section 35 of the Punjab Pre- emption Act, 1991 to establish that their predecessor, the original plaintiff/pre-emptor, had made Talb-i-Ishhad in the presence of two truthful witnesses but the said aspect of the matter had not satisfactorily or adequately been established by them. In paragraph No, 4 of the original plaint the appellants' predecessor had asserted that the respondents had repeatedly been asked to recognize the right of preemption of the appellants' predecessor and to hand over possession of the relevant property to him upon receiving from him the actual amount of consideration but the respondents had refused to do the same about one week prior to filing of the plaint. That averment in the plaint had been asserted by the respondents in their written statement to be incorrect and the same had been denied. No detail of any such demand had been provided in the plaint nor any evidence in that respect was produced by the appellants' predecessor before the learned trial court in the first round of litigation. It was only in the third round of litigation that the appellants had produced Sultan Muhammad (P.W.6) before the learned trial court in support of their assertion regarding making of Talb-i-Ishhad by their predecessor and the said witness had only made an oral assertion in that respect which oral assertion had, in turn, been denied and contradicted orally by the respondents. Admittedly no independent verification or confirmation of the facts orally asserted by Sultan Muhammad (P.W.6) was made available on the record of these cases by the appellants and, admittedly again, the said Sultan Muhammad (P.W.6) had not found any mention in paragraph No, 4 of the original plaint. There was no denying the fact that the said Sultan Muhammad (P.W.6) was a close relative of the original plaintiff and, thus, his belated appearance on the scene in support of making of Talb-i-Ishhad by the original plaintiff was not free from legitimate doubts. The oral testimony of the said witness before the learned trial court for the first time in the third round of litigation was denied and contradicted by the respondents orally and we have found nothing on the record to convince us to prefer the oral testimony of that witness over that of the oral testimony of the respondents. In this view of the matter a conclusion is irresistible and inescapable that the appellants had failed to convincingly and conclusively establish making of Talb-i-Ishhad by their predecessor and, thus, the mandatory requirement of subsection (2) of section 36 of the Punjab Pre-emption Ordinance XVIII of 1990 as well as of subsection (2) of section 35 of the Punjab Pre-emption Act, 1991 -had not satisfactorily and adequately been fulfilled by the appellants in the present cases.
5. We have also found some substance in the submission of the learned counsel for the respondents that the assertion of the appellants' predecessor regarding his superior right of pre- emption on the basis of being a co-sharer had also not been -established in these cases through any independent or convincing evidence. An assertion was made in that regard by the appellants' predecessor in his plaint but in the written statement filed by the respondents that assertion had been denied and contradicted. A Copy of Register Haqdaran Zameen (Exhibit-P3) is available on the record but the names of the appellants or their predecessor do not find any mention in the same as co-sharers of the relevant properties. The learned trial Court and the learned first appellate court had decided the relevant issue in favour of the appellants basing their findings merely upon an oral statement made in that regard by Sultan Muhammad (P.W.6) which was not supplemented or supported by any Revenue Record or documentary evidence whatsoever. In view of denial of the asserted superior right of pre-emption of the plaintiff by the respondents the said oral statement made by Sultan Muhammad (P.W.6) could not be found by the learned trial Court and the learned first appellate court to be conclusive of the fact merely because the said witness had not been cross-examined by the respondents properly or in detail vis-a-vis that part of his statement.
6. It has not been disputed before us that the original plaintiff namely Najeeb Ali, the appellants' predecessor, had died on 17-4-1993 before his suit for possession through preemption was decreed for the first time on 8-3-1999. The cases in hand had originated at a time when the law of pre- emption was governed by the Punjab Pre-emption Act, 1913 and under that law the suits filed by the appellants' predecessor could not have been decreed on account of his death before obtaining any favourable decree. A reference in this respect may be made to the case of Muhammad Ishaq v. Muhammad Sadiq (2007 SCM R 1478). It is true that by virtue of the provisions of section 16 of the Punjab Pre-emption Act, 1991 the right of pre-emption stands transferred to the legal heirs of the pre-emptor upon the pre-emptor's death but such transfer of the right of pre-emption is conditional upon the fact that the original pre-emptor had died after making any of the demands contemplated by the provisions of section 13 of the Punjab Preemption Act, 1991. The relevant demand in the present cases was Talb-iIshhad and we have already held above that the appellants had failed to convincingly and conclusively establish that the said demand had actually been made by their predecessor who was the original preemptor/plaintiff.
7. Although many of the critical aspects of these cases noticed or, found by us above had not specifically been dealt with by the learned Judge-in-Chamber of the Lahore High. Court, Rawalpindi Bench, Rawalpindi in the impugned consolidated judgment yet while hearing these appeals we are seized of the whole lis and the law does not debar us from noticing or finding the relevant fatal defects and deficiencies in G the cases of the appellants. The learned counsel for the respondents has referred in this respect to the case of Jasraj Indersingh v. Hemraj Multanchand (AIR 1977 SC 1011) and we find the said judgment rendered by the Supreme Court of India to be quite apt in this regard. In these circumstances we have not felt persuaded to interfere with the impugned judgment whereby the suits of the appellants had been dismissed.
8. For what has been discussed above these appeals are dismissed with no order as to costs.