This is an Regular Second Appeal against judgment and decree dated 10th February, 1980 passed by the Additional District Judge, Multan, accepting the appeal of respondent Mst. Began and decreeing her pre-emption suit.
2. The facts of the case are that on 26th November, 1966 Mst. Began daughter of Farzand alias Feroze filed a suit for possession through pre-emption of the disputed land sold to appellant- defendants on 20th September, 1966 inter alia on the ground that she was Khewatdar of said village and as such had superior right of pre-emption as against the' appellants-vendees Abdul Hakim and Diwan. It appears that from this averment in the plaint, the respondent-plaintiff meant to say that she was an owner in the village while appellants-defendants were strangers there. This plea of superior right of pre-emption of Mst. Began was controverted by appellants in their written statement. One of the issues framed was as to whether the respondent-plaintiff had better right of pre-emption and onus of proof of this issue was placed on her. On the relevant question as to whether Mst. Began was a Khewatdar in the village, she besides parole evidence submitted certified copy (prepared on 28th March, 1967) of the pedigree table as Exh. P. 1 showing her to be daughter of Farzand and as such owner in the village Danwaran in the year 1967. She also submitted as Exh. P. 2 certified copy of mutation of inheritance of Farzand showing inheritance of said Farzand having been entered amongst others in the name of Mst. Begum daughter of Farzand on 29th October, 1952. In the sanction order, however, she was described as Mst. Began. She also submitted certified copy of extract from Misal Bandobast of the year 1963 (prepared on 12th April, 1965) showing Mst. Begum daughter of Farzand to be owner of the land in .Village Danwaran. An objection was raised before the Civil Judge during the trial of the suit that in revenue papers one Mst. Begum had, been described to be owner -of .The land and not Began who bad filed suit for pre-emption. The learned Civil Judge rejected this plea on the ground that during the evidence, the witnesses of the appellant-defendant s had stated in cross-examination that Mst. Began had got inheritance on the death of her father Farzand and the appellants-defendants had also admitted that Began is daughter of Farzand. He came to the conclusion that the word 'Began' is the reformed word of --Begum' and in fact Began and Begum is the same woman. However, as regards the question as to whether Mst. Began is Khewatdar in the village he observed that said Mst. Began or Mst. Begum was an owner in another Khewat of the said estate and not in the Khewat which included in it the disputed land not withstanding that appellants-defendants had given no evidence that they were owners in the village, he came to the conclusion that she had no superior right of preemption. As a result of this although the total amount of Rs. 10,000 as consideration of the transaction had been admitted by the respondent-plaintiff, her suit was dismissed.
3. Respondent-plaintiff Began filed an appeal inter alia on the ground that she was the owner in the estate while the appellants --defendants were not owners in the said estate. The appeal came up for hearing before the learned Additional District Judge, Multan. From perusal of judgment of Additional District Judge it does not appear that question of identity of Mst. Began was urged at the hearing by the appellants-defendants in reply to the arguments in appeal. So far as question of respondent-plaintiff being owner in the- estate is concerned, learned Additional District Judge came to the conclusion that the respondent-plaintiff Mst. Began was- clearly proved to be owner in the estate on evidence on record of the case. He came to the said conclusion on the basis of mutation P. 2 mutating the inheritance of Farzand amongst others in favour of Mst. Began (also described in said mutation as Mst. Begum) as well as Exh. P. 11, copy of Jamabandi clearly showing that Mst. Begum daughter of Farzand was owner in village Danwaran. He gave a clear finding that Exh. P. 1, Exh. P. 2 and Exh. P. 11 mentioned above had established that respondent-plaintiff was Khewatdar in village Danwaran in which disputed land was situate. In this view of the matter he by his judgment and decree dated 10th February, 1980 accepted the appeal with costs, set aside the judgment and decree of the civil. Judge and granted respondent-plaintiff decree for possession by pre-emption of said land. Hence this second appeal.
4. The main point which stands raised by the appellants in this appeal is that Mst. Begum daughter of Farzand Ali shown to be an owner in village Danwaran in revenue record was a different woman and had no connection whatsoever with Mst. Began respondent-plaintiff. It has been urged in the memorandum of appeal that it was Begum (and not Mst. Began) who had been established in revenue record to be an owner in the estate at the time of sale.
5. Mr. Ghulam Hassan Gulshan learned counsel appearing on behalf of Rana Abdur Rahim, learned counsel for the appellants has pressed the said point before me at the hearing. He submits that Mst: Begum established to be an owner in the estate in the revenue documents placed on the record of this case. Cannot be considered to be same woman as Mst. Began, who filed the suit unless there is some evidence on record to that effect. He says that none of the documents placed by Mst. Began on record namely Exh. P. 1 to P. 11 connect her with the land in question as the documents in question showed the name of one Begum daughter of Farzand to be an owner in the village and not Mst. Began daughter of Farzand and the only document in which the name of Began daughter of Farzand has been mentioned at one place namely Exh. P. 2, the certified copy of mutation of inheritance of Farzand, appears to be interpolated and overwritten at the relevant place and is not reliable.
6. I have considered this point. It is notable that appellants --defendants never raised the point in their written statement that the respondent plaintiff Began was not the same woman as Mst.
Begum daughter of Farzand mentioned in the revenue record to be owner in the estate although respondent plaintiff had made a clear averment in her plaint that she was Khewatdar in the village and had in support of said averment relied upon revenue documents in the list of documents relied upon submitted along with her plaint. Normally when a written statement is filed, every concievable plea available to a party is taken by the counsel. The fact that no such plea was taken shows that this point was never in contemplation of appellants-defendants at the time of submission of written statement. It was raised before trial Court only in the course of subsequent proceedings and was obviously an after thought. Therefore when by production of the certified copies of the Jamabandi P. 11 and mutation P. 2 and, Shajra Nasab P. 1, Mst. Begum had been established to be an owner in the estate while no document had been put on record by appellant-defendants to show that they were owners in the said village, this belated plea deserved no attention but even inspite of that learned Civil Judge attended to this plea and on the basis of the statements in cross-examination of the witnesses of the appellants-defendants and other evidence came to the conclusion that Mst. Began and Begum were the names of one and the same lady. This finding was a finding of fact. In the proceedings of the appeal, the appellants-defendants could under Order XU, rule 22, C. P. C. Argue in rebuttal the said point at the hearing before the learned Additional District Judge to defeat the appeal of respondent-plaintiff but the judgment of the Additional District Judge shows that no such point was urged at the time of hearing. The said finding of fact was, therefore, acquiesced in and accepted by the appellants-defendants. It is not urged even now that the said finding of fact given by the Civil Judge as affirmed by the judgment of Additional District Judge was vitiated by any misreading of evidence or exclusion from consideration of any material piece of evidence or any other error of law. There is no valid reason, therefore, to attack this finding of fact in second appeal.
7. Even otherwise, on scrutiny of the evidence on record, I do not find any substance in this plea.
Muhammad Shabbir had appeared in evidence as P. W. 3 on behalf of respondent-plaintiff in this case and had inter alia stated that he is husband of Mst. Began respondent plaintiff. He was not cross-examined. Imam Din D. W. 1 witness of appellants defendants specifically stated in his statement in cross-examination that Mst. Began, were of Shabbir had got inheritance from Farzand. Similarly D. W. 2 Niamat Ali another witness produced by the appellants-- defendants themselves, accepted in his statement in cross-examination that Mst. Began were of Shabbir had been given the inheritance of Farzand Ali. Jan Muhammad son of Karim Bakhsh stated as D. W. 6 that he knows Began and her father's name was Farzand. Furthermore he admitted that Shabbir was the husband of Mst. Began and besides Began, Farzand had another daughter from his first were whose name he did not know. Still another witness of the appellants-defendants Abdul Aziz by name had as D. W. 7 stated that he knows Mst. Began and the name of her mother was Shakoori and that Mst. Shakoori was first were of Farzand and Mst. Began had a sister Mst. Zaitun by name. It is clear that the said witnesses were treating the respondent-plaintiff Mst. Began as daughter of Farzand and sister of Zaitoon. Now description in the pedigree table P. 2 that Mst. Begum and Zaitoon are daughters of Farzand when seen in the light of above admissions fixes the identity of Began and shows that Mst. Begum is the same woman as had filed the said suit as Mst. Began.
However, this is not all. D. W. 8 Muhammad Hanif while describing that Shabbir was husband of Mst.
Began daughter of Farzand, had specifically referred to Mst. Began as Plaintiff Began. No doubt is, therefore, left and it stands proved to the hilt that Mst. Began respondent plaintiff is the same woman as had been named in the revenue record to be Mst. Begum. In view of this even on merits there is no substance in the plea raised by the learned counsel for the appellants. The same is, therefore, repelled.
8. Faced with this situation, learned counsel for the appellants --defendants has next argued that certified copies of Dhal Bachh of Rabi 1966 and Kharif 1.965, produced, respectively as Exhs. P. 6 and P. 7, by respondent-defendant herself (for another purpose) do not show the name of respondent- plaintiff as assessee of land revenue which showed that she was not an owner of any agricultural land to the estate and, therefore, the respondent. Plaintiff cannot be considered to be an owner in the estate, For this proposition, the learned counsel has relied upon case of Shah Muhammad v.
Mst. Piari and others (AIR 1936 Lah. 202). In which it had been held that the term owner of the estate as used in section 15 of Punjab Pre-emption Act imports ownership of agricultural land only and as soon as an area of land which was admittedly agricultural is converted into a building site, it at once ceases to be a part of the estate and its owner, therefore, is deprived of all those privileges which he could otherwise enjoy under the law.
9. Before the learned Civil Judge, however, loss of superior right of pre-emption in respondent- plaintiff had been raised on different premises. Before him it had been argued that in Jamabandi put on record it had not been shown that land owned by respondent-plaintiff is assessed to land revenue and, therefore, it had ceased to be agricultural land and respondent-plaintiff had ceased to have superior right of pre-emption as owner of agricultural land vested in him under section 15 of Punjab Pre-emption Act. The same authority had been relied upon there also. But the learned Civil Judge found that there was no evidence on the file to show that the other land recorded in Jamabandi in the ownership of respondent-plaintiff had been converted into a building site or had otherwise ceased to be agricultural land. He also held that the copy of Jamabandi showed that the said land was agricultural one and mere non-entry of assessment of land revenue in Jamabandi did not by itself change the status of the land. Thus, the point raised now is on different plane and is clearly an after thought and cannot be allowed to be raised by the first time in the High Court.
10. In any way, this point too is of no avail to appellants-defendant. It appears that the said two documents Exhs, P. 6 and P. 7 are not copies of Dhal Bachh but copies of Afrad Bachh) is prepared on the basis of Khataunies i.e. Tenant-were and the name of an owner who has ten tenants will occur in the Dhal Bachh ten tenants. But Fard Bachh is prepared Ucording to Khatas i.e. Owner -- were and names of all owners recorded in a particular Khata of Jamabandi would be given in that list against the said Khata along with the land revenue liable to be paid by them. The documents in question are of later type. Both of them show the names of owners- assesses of land revenue contained in Khatas Nos. 78 and 82 only. There is nothing on record that land of Mst. Begum alias Began which had come to her in mutation of inheritance from her father Farzand on 29-10-1952 as per mutation P. 2, was joint with other heirs of Farzand. As a matter of fact the Jamabandi of 1964- 65 exhibited as P. 4 relating to said Khatas Nos. 78 and 82 does not show Mst. Begum or Began to be owner of land in said two Khatas. It is obvious, therefore, that land of Mst. Begum alias Began had been included in another Khata of Jamabandi as a separate owner of land to this estate.
Certified copy of said other Khata of Mst. Begum relating to Jamabandi of 1964-65 has not been produced by any party Mere production by respondent-defendant on record of Afrad Bachh of the years 1966 and 1965 relating to Khatas Nos. 78 and 82 of the Jamabandi 1964-65 does not, therefore, show that respondent plaintiff was not an assessee of land revenue and had ceased to hold agricultural land in the village. As a matter of fact, certified copy of extract Misl Bando Bast of the year 1963-64 exhibited as P. 11 shows that she was recorded as an owner of agricultural land in Khata No. 80 of revenue estate of Danwaran. The said certified copy was prepared on 12-4-1968 without any adverse red ink entry by Patwari and shows that said land had neither been disposed of nor had ceased to remain agricultural land upto at least the date of preparation of said document namely 12-4-1968. Furthermore certified copy of pedigree table B also showed Mst.
Begum to be an owner of agricultural land in the village. This certified copy was also prepared on 28-3-1967 without any adverse remark by Patwari, clearly showing that respondent-plaints had continued to remain owner of agricultural land till that time. The production of Afrad Bachh of Khatas Nos 78 and 82 of the years 1966 and 65, therefore, did not prove that respondent-defendant had ceased to remain owner of agricultural land in the years 1965 and 1966.
11. No other point has been argued.