' CIVIL APPEAL NO, 1260 OF 2004 ' TASSADUQ HUSSAIN JILLANI, J.---Facts giving rise to this appeal by leave of the court briefly stated are that respondent Muhammad Shafi purchased land measuring 190 kanals from Rao Muhammad Ali in terms of the registered sale deed dated 25-9-1978 for a consideration of Rs,25,000. This sale was pre-empted by the predecessor-in-interest of the appellants Ghulam Rasool by filing a civil suit on 23-9-1979. In the written statement filed by the respondent/defendant superior right of the appellant/plaintiff was denied and during trial evidence was led to show that the respondent/ defendant was owner of the estate and the said land was being used for agricultural purposes.
2. In view of the divergent pleas the learned trial Court framed 10 issues. Vide the judgment dated 27-7-1983, the suit was dismissed primarily in terms of its findings on issue No,
1. The said judgment and decree was, however,, reversed by the learned Appellate Court/District Judge vide the judgment dated 7-1-1984. The, learned High Court allowed the Civil Revision vide the impugned judgment dated 31-10-2000 and restored the judgment and decree of the learned trial Court.
3. Leave was granted by this Court vide the order dated 25-8-2004, which reads as follows:-- "Learned counsel for the petitioner contended that respondent was not owner in the estate within the contemplation of section 15 of the Punjab Pre-emption Act, 1913 because he claims preferential right of pre-emption on. a piece of land which he obtained vide a Hiba Deed (Exb.D5) from one Allah Wasaya for residential purposes. This fact is admitted by him in his statement in court during proceedings which has given rise to these proceedings and even prior to it, during the proceedings, which arose out of the suit filed by the petitioner to pre-empt the sale vide Hiba Nama (Exb.D5), in earlier round of litigation, while recording his statement (Exb.D5/1). Although said suit was dismissed on the ground that transaction between respondent and Allah Wasaya is not of a sale but in view of his that statement that he has obtained one kanal of land for residential purposes, the suit filed by the petitioner was liable to be accepted as respondent was not the sharer in the estate. To elaborate his arguments, reliance was placed by him upon the judgments in the cases of Shah Muhammad v. M.T. Pairi (AIR 1936 Lahore 202) and Salehon Muhammad v. Shera and others (1977 SCMR 297).
(6) He further contended that although the statement of respondent Muhammad Shaft was brought on record as Exb.P5 but the learned High Court declined to accept .The same by assigning the reason that when he was in witness box, he was not confronted with the same as such previous statement given by him cannot be used as an evidence against him. According to learned counsel, petitioner/plaintiff intended to bring on record the previous statement of Muhammad Shaft as corroborative evidence in order to establish that previously he was found to be non-owner of the agricultural land, therefore, he cannot be allowed to purchase the land, subject matter of the present proceedings. He further contended that in view of the provisions of Article 153 of the Qanun-e-Shahadat Order, which corresponds to section 157 of the Evidence Act, petitioner was not required to confront to respondent with his earlier statement. He also pointed out that above all respondent Muhammad Shaft in the cross-examination on the statement which he got recorded in present proceedings as D.W.1, has admitted that in previous round of litigation, he had obtained one kanal of land from Allah Wasaya for residential purposes, therefore, learned High Court has wrongly non-suited the petitioner.
(7) On the other hand learned counsel for caveat contended that in previous round of litigation between petitioner and respondent, wherein former has pre-empted against one kanal of land obtained in Hiba by Muhammad Shaft respondent, through a gift, he could not succeed as the suit filed by him was dismissed. He further contended that according to available record, the status of the land obtained by Muhammad Shaft from Allah Wasaya is agriculture land even today, therefore, for such reason, he is owner of agricultural land in the estate and as the petitioner could not prove his earlier statement (Exb.D5), according to law, therefore, the High Court had rightly granted relief to respondent by accepting civil revision. We have heard learned counsel for the parties at a considerable length and have also gone through the impugned judgment as well as available record carefully. Leave to appeal is granted, inter alia, -to examine respective contentions of the parties' counsel, noted herein above."
4. In support of this appeal learned counsel for the appellants submitted that the learned High Court has non-read and misread material pieces of evidence inasmuch as it is in evidence that at the time of the impugned sale predecessor-in-interest of the appellants was owner in the estate whereas respondent/defendant did not possess such a qualification; that the superior right of pre- emption of the appellant as against the defendant stood established; that respondent/defendant's claim that he was owner of the estate prior to the impugned sale was belied by the fact that the gifted one kanal (Exh.D5/1) was gifted for residential purpose and it was being utilized as such; that the respondent/defendant had clearly admitted in the previous suit that he had obtained the aforementioned one kanal of land for residential purposes; that the learned High Court has not considered the material pieces of evidence while accepting the appeal of the respondent/defendant.
5. Learned counsel for the respondent/defendant, however, defended the impugned judgment by submitting that the learned High Court in passing the impugned judgment has taken into consideration all the material pieces of evidence and no significant misreading or non-reading has been pointed out by learned counsel, which could warrant interference in appeal.
6. We have heard learned counsel for the parties at some length and have considered the submissions made as also the evidence on record.
7. The foundational question it- is admitted by -both the learned counsel in the instant-appeal was as to whether the land acquired by the respondent/defendant vide gift deed Exh.D.5/1 dated 4-5- 1978 was agricultural and assessed to land revenue and was used as such or was it residential. The learned trial Court having considered the evidence led dismissed the suit in terms of its finding in paras 6 to 8 of the judgment and decree which reads as follows:--- "(6) The plaintiff has relied on copies of statements of Muhammad Shafi and Allah Wasaya made in another pre-emption suit. The said copies are Exhs.5 and 4. In the said statements Muhammad Shafi defendant and Allah Wasaya had admitted that the said two kanals of land obtained by Muhammad Shafi from Allah Wasya was meant for residential purposes and foundations were laid on it at the time of getting possession of the same. In rebuttal Muhammad Shafi (D.W.I) has contended that he had purchased the land for residential purposes and had laid foundations on it but later on he gave up the idea of having residence on this property and it is not being cultivated by him. According to him he has residential house at a separate place.
(7) It is admitted by Ghulam Rasool plaintiff himself that there is no "Basti" or 'Abadi" near the said two kanals of land and that it is situated at a distance of five miles from Kot Sultan. Copy of mutation Exh.D.6/1 and copy of missal Haqiat Exh.D.7/1 shows that the said land is a part of Khewat No, 23 of the revenue estate Sohanra Wasawa. Column No,9 of Exh.D.7/1 shows that it is part of revenue paying estate. The term owner of estate has not been specifically denied in the Punjab Pre-emption Act but it is established by the interpretations of superior courts that it is equivalent to Khewatdar and the liability for payment of land revenue is sine qua non for becoming owner of the estate. The person who owns area assessed to land revenue is (sic) estate and the fact that land revenue payable on that area is very small or the area itself is very small or that it does not belong to the original village proprietary body and was acquired by gift, etc. Or that the area is not really the agriculture land but building site, could not change status. The determining factor in such cases was whether the area in question was or was not assessed to land revenue. Its extent, situation and the purpose for which it was bought or to which it may be devoted were absolutely immaterial. The lagricultural land walks out of the estate when it is converted into building site in a village or a town.
(8) The land acquired by Muhammad Shaft through the said gift as explained above is part of revenue paying land. Exh.D.6 shows that 40/18893 shares of the joint khata was transferred in favour of Muhammad Shaft etc. On the basis of the said gift. Muhammad Shaft, etc. Thus became shares and khewatdars of the said land; to the extent of 40/18893 share irrespective of the fact that they took possession of two kanals of land on a specified portion of said joint land. All these details show that Muhammad Shafi become owner of land by virtue of the said gift. He is for all purposes an owner of the estate and the fact that he acquired the land for residential purpose is immaterial."
8. The judgment of the trial Court was reversed by the District Judge as the Court was of the view that prior to the gift deed respondent/defendant was not owner of the land in the estate; that with regard to the gift deed Exh.D.5/l, the same plaintiff had filed pre-emption suit which was dismissed; that in the said suit, however, Allah Wasaya the donor appeared and stated that the land was transferred to the defendant for residential purposes; that even respondent defendant Muhammad Shafi appeared in the witness box and said that he had laid foundation of a house and installed hand pump on the said land and that in view of the said clear admission it could not be said that it was being used for agricultural purposes nor any evidence was led to that effect.
The learned High Court, however, allowed the Civil Revision and restored the judgment and decree of the trial Court and thereby dismissed the appellants suit for pre-emption by holding that the statement given by the defendant in the other suit could not be used unless the said statement had been put to the respondent/defendant during cross-examination which was not done; that the gift deed Exh.D5/1 does not reflect that the land in question was being given for residential purposes; that admittedly the suit land was at a distance from the village 'abadi' and that the finding of the District Judge that the said land was not assessable to land revenue betrayed misreading and misappreciation of evidence led.
9. The findings of the learned High Court appear to be in accord with the evidence led because in reversing the judgment and decree of the Trial Court the learned District Judge non-read material pieces of evidence i.e_ the statement of the responden,/delendant himself that initially he had intention to use the land acquired through Exh.D5/1 for residential purposes but subsequently he changed his mind and it was being used for agricultural purposes; the admission of the appellant/plaintiff while appearing as P.W.1 that the gift land was away from village abadi and lastly the documentary evidence placed on record i,e, Exh.D7/l to indicate that the land acquired through Exh.D5/1 was assessed to land revenue. Even otherwise Exh.D.6 which is mutation indicates that 40/18893 share of the joint khata in agricultural land was transferred in favour of defendant Muhammad Shafi on the basis of gift deed.
10. We have also considered the contention raised by appellants' learned counsel that Muhammad Shaft respondent/defendant in an earlier suit had admitted that the land acquired vide Exh.D 5/1 was for residential purpose; that a certified copy of the said statement is a corroborative piece of evidence and that the said statement was not required to be confronted in view of Article 153 of the Qanun-e-Shahadat Order, 1984. A reference to Article 153 of the Qanun-e-Shahadat Order at this stage would be in order. Which reads as follows:- "153 Former statements of witness may be proved to corroborate later testimony as to same fact: In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the facts; may be proved."
11. Even if there was admission on the part of Muhammad Shafi respondent/defendant in the earlier suit that the land acquired through gift deed Exh.D5/1 will be used for residential purpose, the same would be of no avail to the appellant. Because while appearing as D.W.1 he in the examination-in- chief had stated that he had acquired the land vide gift deed Exh.D5/1 for residential purpose but subsequently, he changed his mind and started cultivating it and further that his residential house is at a different place. If the plaintiff wanted to rely on the previous statement of respondent/defendant to show that he was making false statement then the latter ought to have confronted him with the same without which it was not admissible in evidence. In Awadh Behari Sharma v. State of Madhya Pradesh (1956 Supreme Court 738 (S) A.I.R. . 43 C. 116 Nov) while commenting on the import of section 157 of the Evidence Act which is a provision analogous to Article 153 of the Qanun-e-Shahadat Order, 1984, it was held as follows:- "Where the statement of a prosecution witness, examined earlier, to another prosecution witness, who is examined later, is sought to be made use of by the prosecution, without the earlier prosecution witness having been asked about it in his examination, the earlier prosecution witness to whom the statement is ascribed must be given an opportunity to explain it. The witness should at least be recalled for the purpose. In the absence of such opportunity the statement of the earlier prosecution witness is inadmissible in evidence."
12. In The State v. Abdul Khaliq (PLD 2011 SC 554), one of the questions mooted before the court was that in the event of denial of the previous statement of a witness during trial could a previous statement be read in evidence to contradict him without confronting him with the said statement?
The court observed as follows:-- "In this context, it may be held that the prosecution while confronting a P. W. Under Article 140 of QSO, 1984 with his previous statement may use any of his previous statement not necessarily those recorded under sections 161 and 164, Cr.P.C. Without the proof of those at that time. If the witness admits of having made such statement there is no need for the proof but if it is denied, then through the process of confronting him and recording the inconsistency may be completed by the court, whereas such material cannot be used against the prosecution, until and unless the confronted statement is subsequently proved by the defence, as any disputed instrument."
13. In the instant case the respondent/defendant while appearing as D.W.1 had candidly stated that he had acquired one kanal of land in the estate for residential purpose but subsequently he changed his mind and started cultivating it and built his house somewhere else. The latter part of the testimony before the court i,e, he changed his mind is not reflected in previous statement and unless the witness was confronted, the previous statement made in a different suit could not be used as evidence against him.
14. For what has been discussed above, we do not find any merit in this appeal, which is accordingly dismissed.
' CIVIL APPEAL NO,1261 OF 2004
15. Respondent Allah. Bakhsh purchased suit land measuring 218 kanals 14 marlas for consideration of Rs, 50,000 on 18-6-1977 qua which predecessor-in-interest of appellants filed pre-emption suit on 9-9-1978 inter alia claiming that he had a superior right of pre-emption. The suit was contested, issues were framed and in terms of its findings primarily on issue No,9, the, learned trial Court vide its judgment dated 7-6-1984 decreed the suit which was challenged in appeal and the same was allowed vide the judgment and decree dated 11-12-1984 passed by the learned Additional District and Sessions Judge and the suit had been dismissed which has been maintained by the learned High Court vide the impugned judgment.
16. Learned counsel for the appellants submitted that the learned courts below have concurrently not appreciated that appellant was owner of the estate whereas the respondent/defendant did not possess such a qualification; that the latter's claim that he was owner of the estate prior to the impugned sale was belied in evidence led inasmuch as the one kanal acquired by him through gift deed was for residential purpose and was not assessed to land revenue.
17. Learned counsel for the respondent/defendant, however, defended the impugned judgment and submitted that the concurrent findings of fact dismissing the suit filed by the appellant did not reflect any misreading or non-reading of evidence which could warrant interference.
18. We have considered the submissions made by learned counsel for the parties and have gone through the evidence with their assistance.
19. In decreeing the suit the learned trial Court was of the view that the respondent/defendant was not owner of the estate prior to the impugned sale and that the plaintiff had a superior right of pre- emption, The court found as follows:-- "The hibba for one kanal of land in favour of the defendants was accordingly treated for residential purposes and he has not been treated as owner in the estate. So in view of the finding of the learned District Judge vide Exh.P.9 the land which the defendant has claimed to be owner for the purposes of defeating the suit is of no help for the reason that he having been treated to have obtained the land for residential purposes cannot be treated as an owner in the estate for the purposes of defeating the suit of pre-eruption. The plaintiff in my opinion has, therefore, superior right of pre-emption as compared with the defendant. The issue is accordingly decided in favour of the plaintiff. "
20. The learned Additional District Judge allowed the appeal as he was of the view that though a reading of Exh.D.5/1 the gift deed indicated that it had been purchased for residential purpose but there is nothing in evidence which could show the nature of the land i,e, whether it was agricultural or otherwise and that with regard to the nature of the land no evidence was led by the plaintiff.
Exh.D.6 reflects that pursuant to Exh.D5/1, 40/18893 share from the joint khata of agricultural land was transferred in the name of the defendant. In absence of any partition of joint khata it could not be presumed that the said land was residential. The mutation Exh.D6 showed that it was agricultural land and no evidence was 'led in rebuttal of this documentary evidence. The oral evidence led by the plaintiff was also of no avail on the afore-referred issue as Sh. Abdul Aziz P.W.1 said nothing about this aspect and appellant/plaintiff while appearing as P.W.2 merely stated that one kanal of land of which defendant claimed to be the owner was residential as there was a boundary wall constructed around it. But this remained uncorroborated by any independent circumstance. The respondent/ defendant appeared as D.W.2. Surprisingly it was not put to him that he was not owner of the estate prior to the impugned sale or that the land acquired by him through Exh.D.5/1 was being used for residential purpose.
21. Having gone through the evidence led, we find that the concurrent findings with regard to the nature of the land acquired vide Exh.D5 are in accord with the weight of evidence led. The credibility of predecessor-in-interest of appellants Ghulam Rasool who appeared as P.W.2 with regard to his assertion that the land acquired vide Exh.D5 was surrounded by boundary wall was eroded when in cross-examination he failed to point out as to whose land was adjacent to the said one kanal of land and that whether the land was under cultivation. The argument of appellant's learned counsel that the previous statement of respondent/defendant Allah Bakhsh in previous suit to the effect that the land acquired vide Exh.D5 was residential was enough to belie his assertion that he was owner of the estate would not be tenable as admittedly the respondent/defendant was not confronted with the said statement. In absence of such a confrontation the previous statement would not be admissible in evidence. In Awadh Behari Sharma v. State of Madhya Pradesh (1956 Supreme Court 738 (S) A.I.R.V. 43 C. 116 Nov) while commenting on the import of section 157 of the Evidence Act which is a provision analogous to Article 153 of the Qanun-e-Shahadat Order, 1984, it was held as follows-- "Where the statement of a prosecution witness, examined earlier, to another prosecution' witnesses, who is examined later, is sought to be made use of by the prosecution, without the earlier prosecution witness having been asked about it in his examination, the earlier prosecution witness to whom the statement is ascribed must be given an opportunity to explain it. The witness should at least be recalled for the purpose. In the absence of such opportunity the statement of the earlier prosecution witness is inadmissible in evidence."
22. In The State v. Abdul Khaliq (PLD 2011 SC 554), one of the questions mooted before the court was that in the event of denial of the previous statement of a witness during trial could a previous statement be read in evidence to contradict him without confronting him with the said statement?
The court observed as follows-- "In this context, it may be held that the prosecution while confronting a P.W. Under Article 140 of QSO, 1984 with his previous statement may use any of his previous statement not necessarily those recorded under sections 161 and 164, Cr. P. C. Without the proof of those at that time. If the witness admits of having made such statement there is no need for the proof but if it is denied, then through the process of confronting him and recording the inconsistency may be completed by the court, whereas such material cannot be used against the prosecution, until and unless the confronted statement is subsequently proved by the defence, as any disputed instrument."
23. As defendant was not confronted with the earlier statement, the learned courts below have rightly not considered the previous statement to be admissible in evidence to contradict the defendant.
24. For what has been discussed above, we are of the view that the concurrent findings of fact are unexceptionable as they are not reflective of any non-reading or misreading of evidence. The