' Amin-ud-Din Khan, J.--- Through this civil revision petitioners have challenged the judgment and decree dated 20-1-2011 passed by the learned District Judge. Sargodha whereby appeal filed by the petitioners was dismissed and judgment and decree dated 31-7-1986 passed by learned Civil Judge, whereby suit for pre-emption filed by the was decreed.
2. All According to the `brief facts of the case respondent Mst. Bivi suit on -6414974 to pre-erupt the sale of land in favour of petitioners- No,6053 attested on 6-11-1973. Filed. Snit was contested.
Another suit by the rival was also filed, which is not in the Issues were fanned. Learned trial court invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 31-7-1986 learned trial court decreed the suit. Appeal was preferred, which was dismissed vide judgment and decree dated 1-31989. Civil Revision No,222 of 1991 was filed before this Court, which was also dismissed. Subsequently as per learned counsel for the petitioners Civil Appeal No,400 of 1992 was allowed by the august Supreme Court of Pakistan vide judgment dated 13-2-1995 and the matter was remanded to the High Court with the direction to determine that what is the actual date of pronouncement of the judgment by the learned trial court and decide the revision petition. States that again revision was dismissed vide judgment dated 30-5-2001. Again an appeal was filed before the august Supreme Court of Pakistan (Civil Appeal No,2724 of 2001) which was decided vide judgment dated 26-11-2008 and by allowing the appeal matter was remanded to the learned District Judge for decision afresh.
Learned District Judge further remanded the matter vide remand order dated 7-10-2009 to the learned trial court. A revision (C.R.No,2587 of 2009) was filed before this Court which was allowed on 21-10-2010 and learned District Judge was directed to decide the appeal himself. Lastly, learned District Judge vide judgment and decree dated 20-1-2011 has dismissed the appeal, hence, this civil revision.
3. Learned counsel for the petitioners has raised the objection that statements of all the witnesses of the plaintiff as well as defendants have been recorded on solemn affirmation and not on oath, therefore, have no evidentiary value; that plaintiff claims to be sister of the vendor and she got recorded her statement in affirmative as well as in rebuttal after close of evidence of the defendants, therefore, she failed to prove the case pleaded by her; that-pedigree table (Exh.P.3) has been produced in the statement of the learned counsel, therefore, same cannot be used by the plaintiff-respondent to prove the relationship with the vendor; that suit is barred by one day as the same has been filed on 6-11-1974; that the price has wrongly been fixed by the courts below.
Further while relying on "Ghulam Qadir v. Nawab Din" (PLD 1988 Supreme Court 701) in the alternate prays for enhancement of the price.
4. On the other hand, learned counsel for the respondent-plaintiff argues that there are concurrent findings of fact recorded by the two courts below and that all the objections raised before this Court today were never ever raised or pressed into service as the litigation is pending for the last 39 years and further that there is no substance in the objections raised by the learned counsel for the petitioners; that when defendant-petitioner Ghulam Rasool appeared as DW-1 and the other defendant Khushi Muhammad also appeared as DW-1 also admitted the relationship of plaintiff with the seller that both are the son and daughter of Sardara and further admitted that he is not the collateral of the vendor. Learned counsel has argued that at the time of recording the statement of the witnesses no objection was raised and that no prejudice has been shown to have been caused by recording of the statement of witness on solemn affirmation and further states that even when the learned counsel for the plaintiff reserved the right of plaintiff to appear in affirmation and rebuttal evidence after the evidence of the defendant no objection was raised, raising of this objection now by the petitioners is worthless. So far as sale consideration is concerned, learned counsel states that at the time of pendency of Civil Revision No,2587 on 16-12- 2009 the consideration amount was conceded to be Rs,86,000. Learned counsel states that plaintiff-respondent persists on her previous admission of conceding the price. So far as fixation of fresh price is concerned, learned counsel argues that they are the petitioners who are in possession and are enjoying the property for the last 39 years and further that they are not entitled to any enhancement in the price.
5. I have considered the arguments advanced by learned counsel for the parties and have gone through the record.
6. I have noticed that in the order of admission of Civil Revision this Court while issuing notice to the other side, noted that points raised now are though weighty but were not raised in the first round of litigation by the petitioners in appeal against the trial court's judgment and decree, therefore, petitioners were directed to deposit Rs,30,000 as security for costs with the Deputy Registrar (Judicial) of this Court.
7. On objection raised by learned counsel for the petitioners that the statements of all the witnesses of the parties were recorded without taking oath in accordance with the prevailing provisions of the Oaths Act, 1873, learned counsel for the respondent has raised objection that this objection has been raised after 34 years of the filing of the suit and further that it is 3rd round of litigation in which the parties are before this Court in this Civil Revision. In this regard light can be taken from the pronouncement of the august Supreme Court of Pakistan reported as "Shamsher All v. Mst. Qaim Khatoon alias Irshad Bibi and others" (PLD 1997 Supreme Court 559) and "Muhammad Aslam and others v. The State" (1999 SCM R 845). When no prejudice has been highlighted by recording statement of the witnesses of both the parties on solemn affirmation, the deviation from the Oaths Act at this belated stage cannot be pressed into service in this 3rd round of litigation before this Court after 34 years, therefore, this point raised by learned counsel is not sufficient to disturb the findings recorded by the courts below.
8. So far as fixation of price by the courts below is concerned, learned counsel for the respondent has conceded that the price fixed in the sale transaction is admitted by the respondent. Learned counsel states that even at the time of hearing of C.R.No,2587 of 2009 which came up before this Court in a previous round of litigation, the respondent-preemptor has admitted the sale price mentioned in the sale transaction, therefore, there is no need to further dilate upon this issue.
9. So far as point of enhanced compensation is concerned, admittedly the petitioners remained in possession on the suit-land and enjoyed the fruits of the same and even till today they are in possession, therefore, no question of enhancement of the price of the land.
10. Now comes the question of appearance of the plaintiff at the time of rebuttal evidence as well as producing pedigree table (Exh.P.3) in the statement of the counsel without producing Patwari.
Though it is general law that non-appearance of plaintiff at the time of affirmative evidence and reserving right of plaintiff to appear in affirmative as well as rebuttal evidence after recording of evidence of the defendants is fatal for the plaintiff but the circumstances of this case are that admittedly B defendant did not raise any objection when learned counsel for the plaintiff made a statement while reserving the right of plaintiff to appear in affirmative as well as rebuttal evidence after recording of evidence of the defendants and further when plaintiff produced PW-1 Farman Ali, who stated that plaintiff is real sister. of Gul Muhammad vendor, the defendant could not shake his statement in the cross-examination and even when Ghulam Rasool appeared as DW-1 as his own witness and other defendant Khushi Muhammad also appeared as DW-1 admitted that plaintiff is real sister of the vendor and even when plaintiff appeared as PW-5 and stated that she is the sister of vendor, she was not cross-examined on this point. The trend of cross-examination on the plaintiff and her witnesses as. Well as the statement of the defendants when both appeared as DW-1 show that they want to improve their case on the lines that they are the distant kind reds of the vendor and they have not denied relationship of vendor and pre-emptor. As there are concurrent findings of fact recorded by the two courts below accepting the superior right of the, this Court cannot the findings recorded, on the factual controversies between the parties. In this view of the matter, the statement of plaintiff recorded after the statement of the defendant, reserved at the time of affirmative evidence was not fatal in this case and this case was exceptional.
11. So far "Aks Shajrah" Exh.P.3 is concerned, as have discussed above that when relationship is not denied by the defendant, therefore, producing this document in the statement of learned D counsel for the petitioner is not fatal for the plaintiff, even this document is taken out of consideration, even then the plaintiff successfully proved her case pleaded by her.
12. The point that the suit was time-barred by one day, there is no objection raised in the written statement and record shows that it was never raised before any forum in the previous rounds of litigation and furthermore admittedly' the mutation was attested on 6-11-1973 and argument of learned counsel for the petitioners that it is one day tithe barred, as the suit was filed on 6-11-1974.
In accordance with section 30 of the Punjab Pre-emption Act, 1913 the limitation for filing a suit is provided one year from the date of attestation of mutation. Admittedly the day of attestation of mutation is excluded from counting the period of one year and therefore, the suit was within time.
This argument of learned counsel for the petitioners is also not sustainable under the law.
'13. In these circumstances no case for interference by this Court while exercising jurisdiction under section 115 of the C.P.C. Has been Made out therefore, this civil revision being not maintainable under the law stands dismissed. As the defendant-respondent-has admitted the 'sable considerations as Rs,86,000 and the courts below fixed the price as Rs, 35,000 therefore, the difference of the price which is Rs,86,000 deposited by the respondent-plaintiff with the learned trial court 4;Ithin two month from today ice. Till 21-1-2014 and the costs deposited by the petitioners in accordance with the admission order passed by thin Court dated 18-2-2011 will be received by the respondent as this Civil Revision has been dismissed.