' ABDUL WAHEED KHAN, J.---All these three Revision Petitions (Nos.71I, 712 and 713 of 2005) filed by the present petitioner namely Muzaffar Hussain, have arisen out of the three independent suits for possession through pre-emption, filed against him by Diwan Ali, who during the pendency of the suits passed away and his legal representatives were impleaded as plaintiffs. Since circumstances and the law applicable in these matters are the same, therefore, these are decided by this single judgment.
2. Diwan Ali filed Suits Nos.396/1996, 397/1996 and 398/1996 for possession through pre-emption against Muzaffar Hussain in respect of (a) land measuring 11 kanal 7 marla transferred at the name of the latter through mutation No,650 dated 29-8-1996 for a consideration of Rs,70,000/-. (b) land measuring 20 kanal 5 marla through mutation No,651 dated 29-8-1996 for a consideration of Rs,100,000/- and (c) land measuring 10 kanal 3 marla through mutation No,652 dated 29-8-1996 for a consideration of Rs,75,000/-, respectively.
3. In all the three suits, after the death of the pre-emptor Diwan Ali, amended plaints and amended written statements were filed and out of the pleadings of the parties, as many as eight issues were framed. Both the parties led their respective oral as well as documentary evidence.
' Maqbool Sabir Halqa Patwari, Muhammad Aslam Naib Sadar, Qanoongo Jhelum, Muhammad Zaman, Sabir Hussain, Muhammad Yasin, Nazar Muhammad and Muhammad lqbal appeared as P.W.1 to P.W.7 respectively. In their documentary evidence, the plaintiffs produced copy of jamabandi for the years 1994-95, Exh.P/5, copy of disputed mutation No,650 Exh.P/6, copy of khasra girdawari for the year, 1996 Exh.P/7, death certificate of Diwan Ali, Exh.P/8 and the receipt of registered envelop Ex.P/9. While defendant Muzaffar Hussain appeared as DW.1 and closed his evidence.
4. The Civil Court while giving it's finding on issue No,2, i,e, fulfilment of requirement of Talbs held that the plaintiffs proved the pronouncement of Talb-e-Muwathibat and since Sabir Hussain (legal heir/son of Diwan Ali, deceased plaintiff) failed to prove Talb-e-Ishhad during his examination-in- chief, therefore, this issue was decided against the plaintiff. Issues Nos.3 & 4 were not pressed in the light of the findings on issue No.2. Since the plaintiffs failed to fulfil the requirement of Talbs, therefore, the suit was dismissed vide judgment and decree dated 5-5-2003. The respondents/plaintiffs assailed the said judgments and decrees through appeals and the Addl.
District Judge, Kharian accepted the same and decreed the suit, as prayed for in the plaints, hence these revision petitions.
5. The contentions of counsel for the petitioner are:--
(a) Diwan Ali plaintiff expired during the pendency of the suits and that Sabir Hussain, his son made a statement about Talbs showing himself to be present with his father when Muhammad Yasin son of Ahmad Khan allegedly informed Diwan Ali, deceased about the sale transaction but his name was not mentioned in para No,3 of the plaint. He has introduced himself at later stage of the suit, for making improvements therein and thus his statement has no evidentiary value.
(b) The proceedings in all the three suits were conducted simultaneously, the evidence was recorded in one of suits and the same was reproduced in verbatim in the other two suits and thus the judgments and decrees, passed on the verbatim evidence recorded, in the connected cases, in the absence of consolidation of suits are not sustainable. He submitted that evidence of the parties had to be recorded separately in all the three suits and evidence in one case could not have been placed and considered in the other suit, for passing a judgment due to non-recording of separate evidence in the, other case.
(c) The legal-heirs of the deceased Diwan Ali had no right of preemption on the date of sale. They could not improve their right after the sale, by inheritance as the cause of action had already come into existence and the subsequent qualification, by inheritance could not vest them with superior status after the accrual of cause of action.
' With these submissions, it is prayed that the impugned judgments and decrees be set aside.
6. On the other hand, the contentions of counsel for the respondents are that Section 16 of the Pre- emption Act is very much clear on the point that where a pre-emptor dies after making any of the demands under Section 13, the right of pre-emption shall stand transferred to his legal heirs, therefore, the right of legal heirs of deceased plaintiff to pre-empt the disputed property did not extinguish. It was submitted that although the evidence was reproduced verbatim in the other two suits but the same was done with the consent of the parties and the petitioner/defendant is estopped from his own conduct to challenge validity of the same. Addressing his arguments on the point of Talbs, he submitted that Sabir Hussain, while appearing as his own witness, made a categorical statement that on the date when one Muhammad Yasin informed his father about the sale transactions he was present there and that his statement finds corroboration from the other DWs namely Nazar Muhammad son of Muhammad Khan and Muhammad lqbal son of Abdul Hakeem. With these submissions, it is prayed that the well reasoned judgments passed by the appellate court do not call for any interference and the present revision petitions be dismissed.
7. Arguments heard. Record perused.
' All the points raised are dealt with herein under in seriatim.
(a) Diwan All deceased plaintiff expired during the pendency of the suits, before the recording of his statement. Due to his demise primary evidence which could have come on the record in the shape of his statement could not come on the record and the same is missing. Diwan Ali deceased plaintiff himself could not depose about his performance of Talbs. His son namely Sabir Hussain was subsequently arrayed as pre-emptor in his capacity as his legal heir, showing performance of Talbs by his deceased father Diwan Ali but this fact of his presence with his father, was not mentioned in the plaint and thus his statement is contrary to the pleadings and the same is inadmissible. It has been held by the Hon'ble Supreme Court of. Pakistan in the case of "Muhammad Wali Khan and another v. Gul Sarwar Khan and another"(PLD 2010 SC 965) that no person can be allowed to prove his case beyond the scope of his pleadings.
(b) It is an admitted fact that statement of PWs were recorded in the case titled "Diwan Ali through his legal heirs v. Muzaffar Huassain" in Suit No,396 of 1996. The same could not be placed and considered in the other suits for passing a judgment. It has been held in the case of "Abdur Rahim v. Muhammad Tahir Khan and others"(2010 M LD 1230) as under:-- "It is a settled proposition of law that whenever two suits pertain to the same subject-matter between the same parties, then it is incumbent upon the trial Court to make a specific order for consolidation of both the suits and to frame consolidated issues and thereafter record the evidence of the parties in support of their respective allegations. This is also a settled law that in the absence of consolidation, the evidence of the parties has to be separately recorded in both the suits and evidence in one case cannot be placed and considered in the other suit for passing a judgment. In the case in hand, there were two separate suits, evidence of the parties was recorded in one suit and was considered as valid one in the other suit. This practice was certainly unwarranted rather was prohibited in accordance with the provisions of Qanun-e-Shahadat Order, 1984, due to non-recording of evidence in the subsequent suit, the averments of the pleadings of the parties have gone un-substantiated and in the absence of any material, the learned trial court was not legally in a position to record an independent judgment by referring to the evidence of the parties recorded in another suit. Therefore, mere statement of learned counsel, dated 27-5-2009 that "the statement recorded as D.Ws. In Suit No,146/1 would be considered as P.Ws in Suit No,148/1" is not sufficient to fulfil the requirements of the legal provisions of law which stand violated in the instant suit. Identical question came up for consideration before the Lahore High Court in a case reported as Nazir Ahmad v. Mst. Ghazala Bashir (2001 CLC 468)."
In the absence of consolidation of the suits and the consolidated proceedings, evidence of the parties, recorded in one suit could not be placed and considered in the other suit for passing a judgment and that due to the non-recording of evidence in the subsequent suits the averments of the pleadings of the parties have gone un-substantiated.
(c) As stated above, Diwan All deceased plaintiff expired during the pendency of the suit and his legal heirs were impleaded as plaintiffs. The right to acquire the disputed property by right of pre- emption arises on the date of sale. It has been held by the apex Court in the case of "Muhammad Ishaq v. Muhammad Sadiq 2007 SCM R 1478" as under:- "A pre-emptor who had no right on the date of sale could not improve his right after the sale by inheritance as the cause of action had already come into existence and the subsequent qualification by inheritance could not vest him with superior status after the accrual of cause of action."
8 The net result of the above discussion is that the legal heirs of the deceased plaintiff/pre-emptor had no right on the date of sale and thereafter to pre-empt the disputed property by inheritance and they could not improve their right after the sale as the cause of action already came into existence. Sabir Hussain while appearing as P.W.4 has made a statement about Talbs. His name does not figure in the plaint as according to the original pre-emptor Diwan Ali deceased, Muhammad Yasin informed him about the sale transaction and at that time Nazar Muhammad son of Muhammad Khan and Muhammad lqbal son of Abdul Hakeem were present and in their presence, he made Talb-e-Muwathibat and subsequently, Talb-e-lshhad. Since his name was not mentioned in the plaint when his father allegedly came to know about the sale and made Talb-e- Muwathibat, therefore, he made improvements during the course of evidence and as stated above, he cannot be allowed to go beyond the pleadings. It is also to be noted that notice of Talb- e-Ishhad was not exhibited in the examination-in-Chief of Sabir Hussain, therefore, the same cannot be given any weight.
9. For the foregoing reasons, these revision petitions area accepted, the impugned judgments and decrees of the appellate court dated 12-3-2005 are set aside and the judgments and decrees of the F Civil. Court dated 5-5-2003 are upheld. Parties shall bear their own costs. .