' AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioner has challenged the judgment and decree dated 20-3-2001 passed by learned Addl: District Judge, Jhang, whereby the appeal filed by the petitioner was dismissed and the judgment and decree dated 26-2-1997 passed by learned Senior Civil Judge, Jhang, whereby the suit for pre-emption filed by the petitioner-plaintiff was dismissed.
2. The facts as leading to this civil revision are that through registered sale deed No.290 registered on 24-5-1967 one Nazim Hussain son of Mukarram Hussain sold out his owned land measuring 42- kanals 5-marlas situated within the Municipal limits of Chiniot to Islah High School, Chiniot through Maulvi Muhammad Aslam Hayat. The sale was pre-empted by the petitioner-plaintiff by filing the suit of pre-emption on 20-5-1968.
3. The written statement was filed by Islah High School, Chiniot through Maulvi Muhammad Aslam Hayat on 24-6-1968. From the divergent pleadings of the parties learned trial court framed issues and both the parties were invited to produce their respective evidence in support of their claims.
The plaintiff produced two witnesses and in documentary evidence produced Exh.P-1 to Exh.P-6 and reserved his right to appear as his own witness in affirmative as well as in rebuttal evidence after the close of evidence of the defendant. First time, the plaintiff produced Ghaffar Ahmad as P.W-1 and Muhammad Raza as P.W-2 on 14-4-1969. He also produced copy of pedigree table as Exh.P-1, register Haqdaran-e-Zamin as Exh.P-2 and counsel for the plaintiff made a statement that he will get recorded the statement of plaintiff in affirmative as well as in rebuttal after the recording of defendant's evidence. In defendant's evidence Sh. Abdul Rauf was produced as D.W-1, Nazir Hussain as D.W-2, Shafi Khan as D.W.3, Muhammad Aslam Hayat as D.W-4 and after producing documentary evidence, defendant closed his evidence on 2-7-1969. The plaintiff appeared in his affirmative and also in rebuttal evidence as P.W.3 on 2-7-1969.
4. The record shows that vide order dated 30-1-1970 the value for the purpose of jurisdiction was fixed as Rs.1109.35 and for the purpose of court-fee Rs.11025.70 was fixed. The suit, first time, was decreed on 14-3-1970. The record further shows that the case was remanded to the trial court on the basis that when evidence was recorded, the trial court was not having pecuniary jurisdiction to entertain and try the suit and the learned District Judge, Lyalpur vide order dated 8-7-1970 transferred the case from the court of Ch. Muhammad Aslam, Civil Judge-II, who earlier passed the decree, to the court of Administrative Civil Judge, Jhang.
5. On 21-10-1970 the defendant produced his evidence and Muhammad Aslam Hayat appeared as D.W-4 and stated that the property was purchased for the defendant and he is "Muntazim" of the property. In cross-examination he stated that it is correct that he keeps the incumbent expenditure of the School. He stated that since the year 1957 the defendant is improving the suit property. The defendant's evidence was closed on 12-2-1971. Thereafter the plaintiff appeared in rebuttal as well as in affirmative evidence on 25-2-1971. Later on, the statement of compromise between the plaintiff and defendant through Muhammad Aslam Hayat was recorded on 2-3-1971 and suit was partially decreed vide judgment and decree dated 2-3-1971 by the trial court. Against the compromise decree dated 2-3-1971 an appeal was preferred by the defendant, which was dismissed by the learned District Judge, Jhang on 15-7-1971. The same was challenged before this court through R.S.A.No.687 of 1971, which was dismissed on 24-5-1992 by this court. The matter went up to the august Supreme Court of Pakistan, where the leave was granted on 10-1-1994 and civil petition for leave to appeal bearing No.905-L of 1992 was converted into appeal bearing No.17 of 1994. Vide judgment dated 8-10-1995 the Hon'ble Supreme Court was pleased to remand the case to the learned trial court for decision afresh. The record shows that after the last remand of the case by the august Supreme Court of Pakistan, the statements of D.W-5 and D.W-6 were recorded on 4-11-1996. The supplementary statement of Jawad Hussain plaintiff was recorded on 11-11-1996 as P.W-4 and of P.W-5, 6 and 7 on 3-9-1996. The plaintiff also produced further documents on 21-9- 1996. Vide judgment and decree dated 26-2-1997 learned trial court dismissed the suit and appeal filed by the petitioner-plaintiff was also dismissed vide judgment and decree dated 20-3-2001.
Hence, this civil revision.
6. Learned counsel for the petitioner-plaintiff argues that the property was pre-emptable; that when the property was purchased by the Isiah High School through Muhammad Aslam Hayat, therefore the suit was rightly filed against the defendant and further that when the School was nationalized, therefore in accordance with the order passed in RSA No.687 of 1971 dated 3-7-1989 in C.M. No.3153-C-1989 the Province of Punjab was allowed to represent the appellant. Learned counsel states that when the defendant was impleaded through Province of Punjab, further addition of Province of Punjab through Collector was against the law and impleading Province of Punjab through Collector was oral as well as invalid order. Learned counsel then referred C.M. No.2 of 2009, application under Order XIV, Rule 5 read with section 151 of the C.P.C. For striking down issue No.8-B and contended that issues Nos.8-A to 8-C have been framed against the remand order of august Supreme Court. Further that Exh.D-7 and Exh.D-8 were not produced and got exhibited in accordance with law and were got exhibited under objection, therefore could not have been considered in evidence. Learned counsel further argued that in accordance with Section 3(e) of the Land Acquisition Act, 1894 if any property is acquired for a society, under section 5 of the Registration of Societies Act (XXI of 1860) the same will be of the society otherwise it will be of the ownership of Governing body. Further states that the august Supreme Court has not ordered for de novo trial but the trial court has started de novo trial, which was against the remand order; that the superior right of the petitioner-plaintiff has been accepted by all the courts but on the basis of issue No.8-B suit has been dismissed; that the cross objections have even been filed by the unauthorized persons, therefore are not maintainable under the law. Learned counsel prayed that this civil revision be accepted and petitioner-plaintiff be permitted to deposit the sale amount in the court, as at the time of compromise in the year 1971 the petitioner after leaving the settled amount in the cow the other amount was withdrawn by him. Learned counsel on the objection of learned Additional Advocate General that land is not pre-emptable being situated within the Municipal limits, argues that the land was recorded as 'Banjar Qadeem' states that it was agricultural land and village immovable property. While relying upon "PLD 1994 Supreme Court 501 (Jameel Ahmed v. Saifuddin)" learned counsel for the petitioner states that case be regulated in accordance with the remand order. Further while relying upon "PLD 2010 Supreme Court 803 (Muhammad Hussain v. Muhammad through Legal Heirs and others)" states that pre-emption is against the property and not against a person and that the pedigree table has been proved in accordance with law.
7. On the other hand, learned Additional Advocate General argues that the petitioner failed to prove issue No.5 and superior right of preemption; that the oral evidence led by the petitioner- plaintiff with regard to the relationship with the vendor is contradictory with his own documentary evidence; that the documentary evidence was not admissible in evidence with regard to the relationship; that no authenticated pedigree table has been produced and proved, therefore in accordance with the Article 129 (e) of Qanun-e-Shahadat Order, 1984 the same has been withheld.
In this context, reliance has been placed upon "1999 SCMR 2502 (Jaleb Khan and 9 others v. Mst.
Subhani and another) and 1999 SCMR 1800 (Khuda Bakhsh v. Habib Ullah)" . Learned Addl: A.G.
Further states that after the remand only on issues Nos.8-A to 8-C evidence was to be recorded and only to the extent of these issues evidence, if recorded, can be read and considered. Further states that when the plaintiff has withdrawn the amount of 'Zar-Panjum', therefore in accordance with section 22(5) of the Punjab Pre-emption Act, 1913, suit is not proceedable. Reliance has been placed upon "PLD 1980 Lahore 104 (Ismail through his L.Rs. And another v. Muhammad Aslam and 2 others) and 1991 SCMR 487 (Fazal Hussain v. Musharaf Sultana)". It has been further argued that D.W-4 and D.W-5 have not been cross examined; that in accordance with section 7 of the Punjab Pre-emption Act the property in dispute admittedly situates in the Municipal limits, therefore the same was not preempt able without proving the custom of pre-emption. He has relied upon "PLD 2012 Supreme Court 211 (Ch. Muhammad Siddigue and others v. Mst. Faiz eferred Exh.P-11 as well as admitted that the property is referred the report of the leaded, which is in clear e august Supreme Court of s objections filed by the this court while exercising P.C. Can, in the peculiar hole record, judgments and the parties at full length and the courts below as well as cetin (C.M.No.209 of 2010) lard second appeal. As the lis is the second round where pen of this civil revision. The period of limitation and the court is also available before airing of civil revision it will ace much difference if it is red as a civil revision before r section 100 of the C.P.C. At this stage this academic ./vi.No.209 of 2010 stands question of maintainability of ate General on the basis of 1913. For ready reference no in urban immovable of section 5, a right of pre-ban immovable property in hen a custom of pre- emption in such town or subdivision not of this Act, and not exists within the Municipal the section 7 of the Act ibid ye custom of pre-emption e Punjab Pre-emption Act, 7, as has been argued by the statements of witnesses of plaintiff,, who within the Municipal limits and also Commission; that 'Anjuman' was not violation of the remand order passed by Pakistan. Further states that if the crop respondent are not proceedable, even the jurisdiction under section 115 of the C circumstances of the case, scrutinize the orders passed by the courts below.
8. I have heard the learned counsel for also gone through the findings recorded by the voluminous record, with their able assist
9. The petitioner has filed an application for conversion of this civil revision into regard started by filing of suit on 20-5-1968 and . The litigation reached before this court in shah revision has been filed within the prescribe record of trial court as well as the appellate this court. Therefore, at this final stage of h be only an academic question and will not numbered as an appeal or it remained register this court. As this court having powers and as well as 115 of the C.P.C., therefore question will not be of much relevant. Disposed of.
10. First of all, I emphasize upon the suit as raised by the learned Additional Advocate Section 7 of the Punjab Pre-emption Act, section 7 is reproduced herein:-- "7.Exists under certain condition property-Subject to the provision emption shall exist in respect of u any town or subdivision of a town is proved to have been in existence at the time of the commence otherwise."
' In this case, admittedly the suit property limits of Chiniot, therefore in accordance plaintiff was bound under the law to pr prevailing in the area before enactment of 1913 or to claim exemptions from section learned counsel for the petitioner-plaintiff before this court today that the property though was existing within the Municipal limits but was an agricultural land. Therefore, on the basis of claim of petitioner-plaintiff it is a case of exemption from the application of section 7 of the Act referred supra. I am clear in my mind that when any exemption is claimed, that must be specifically pleaded and proved, as a person is asking the court to believe his version against the general principle or against the presumptions. I have noticed that no such exemption has been pleaded in the suit and claimed in the evidence. Only arguing the matter at this stage will not be helpful for the petitioner-plaintiff, when it is admitted that at the time of sale the land was existed in the Municipal limits, therefore in accordance with section 7 the plaintiff was bound to prove that land in question is exempted from the application of section 7 of the above said Act and when it was within the Municipal limits, therefore the plaintiff was bound to plead and prove the same through evidence that it is an agricultural land.
' The suit land being the urban immovable property in accordance with section 16 of the Punjab Pre-emption Act, 1913, which is reproduced as under: "16. Person in whom right of pre-emption vests in urban immovable property---The right of pre- emption in respect of urban immovable property shall vest--- ' Firstly, in the co-sharers in such property, if any; ' Secondly, where the sale is of the site of the building or other structure, in the owners of such building or structure; ' Thirdly, where the sale is of a property having a staircase common to other properties, in the owners of such properties; ' Fourthly, where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties; ' Fifthly, where the sale is of a servient property, in the owners of the dominant property and vice versa; ' Sixthly, in the persons who own immovable property contiguous to the property sold." ' there is no right available to a person claiming to be heir of the vendor, as with regard to the agricultural land the right of preemption has been given in section 15 of the Punjab Pre-emption Act, 1913. This section is reproduced as under:-- "15.Persons in whom right of pre-emption vest in respect of sales of agricultural land and village immovable property-Subject to the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property, shall vest:--
(a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers, jointly, in the persons in order of successions, who but for such sale, would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;
(b) Where sale is of a share out of joint land or property, and is not made by all the co-sharers jointly.
' Firstly, in the lineal descendants of the vendor in order of succession; ' Secondly, in the co-sharers, if any, who are agnates, in order of succession; ' Thirdly, in the persons, but included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: ' Provided that in case where the sale is by a Muslim, the firstly and secondly shall be in applicable, and the thirdly shall read as follows:- Thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold; Fourthly, in the co-sharers:
(c) If no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it:- ' Firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors; ' Secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate; ' Thirdly, in the owners of the estate; ' Fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property; ' Fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated."
11. Further, during the pendency of suit the suit property by the operation of law vested in the Province of Punjab, whether the, suit is still proceed able? As the plaintiff has to prove a superior right of preemption at three stages i.e. At the time of sale, at the time of filing of B suit and at the time of decree and when the property vested in the Province of Punjab, how the plaintiff can still claim the superior right, when the decree dated 14-3-1970 was set aside by the appellate court on the basis that there was a defect in the proceedings of suit in the trial court because of pecuniary jurisdiction of the trial court. In this view of the matter, for this score the decree cannot be granted in favour of plaintiff/petitioner.
12. There is an application (C.M.No.2 of 2009) for striking of issue No.8-B. I have noticed that the issue was framed by the learned trial court on 28-7-1996, in accordance with remand order, both the parties produced their respective evidence and framing of this issue was never challenged in appeal, revision and this application has been filed in the year 2009 i.e. After about eight years of filing of civil revision and after about 13 years of framing of issue in question.
' For ready reference the relevant portion of remand order of august Supreme Court of Pakistan dated 8-10-1995 in civil appeal No.17 of 1994 is as follows: "Para No.2--Admitted, facts of the case are that 'Islah High School, Chiniot, was established by the 'Anjuman-i-Islah School, Chiniot' (hereinafter called as the appellant-Society). It was registered as a Society under the Registration of the Societies Act (XXI of 1860) on 5-3-1952."
"Para No.10-One significant consequence flowing from the registration of the society is that under Section 6 of the Act it may sue or be sued in the name of the president, chairman or principal secretary or trustees, as shall determined by the rules, regulations or bye-laws of the Society and in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion. The governing body has been defined under Section 16 of pie Act as under: "The governing body of the society shall be the governors, council, committee, trustees, or other body to whom by the rules and regulations of the society management of its affairs is entrusted."'
' It would thus be seen that the land in dispute purchased for the Isiah School through Moulvi Muhammad Aslam Hayat vested Under Section 5 ibid in the Anjuman-i-Islah High School,Chiniot.
Similarly the suit for pre-emption giving rise to this appeal should also have been brought against the said Anjuman. Initially the maintainability of the suit, in the circumstances, was not above board."
Therefore, at this stage when the matter has been agitated and decision has been given on issue No.8-B by both the courts below, the prayer of petitioner-plaintiff that this issue be struck off, is not sustainable under the law. As such, C.M.No.2 of 2009 stand dismissed.
13. Learned counsel for the petitioner-plaintiff has argued that the cross objections filed by the unauthorized persons cannot be looked into and even these were not properly filed before the first appellate court. I am of the considered view that cross objections in accordance with Order XLI, Rule 22 of the C.P.C. Are to be filed necessarily when there is any part of decree against that party, whereas the suit as well as the appeal of the petitioner-plaintiff have been dismissed as a whole, therefore there is no part of decree against the defendant-respondent. Therefore, this court can see the findings recorded against the respondent even without filing of the cross objections by the defendant-respondent. For proving a superior right of pre-emption on the basis of being 'Yakjaddi'
(collateral) of the vendor, plaintiff was bound to produce on the record any authenticated pedigree table. Admittedly no pedigree table from any revenue record has been produced. The evidence produced as a document claiming to be pedigree table and the oral evidence is contradictory one. As per the argument of learned Additional Advocate General that it is an inadmissible document and the best evidence has been withheld, therefore in accordance with Article 129(e) of the Qanune-Shahadat Order, 1984, the presumptions will go against the plaintiff.
Furthermore, when plaintiff himself did not appear as his own witness in affirmative evidence, his statement recorded after the close of evidence of defendant cannot be read in his affirmative evidence. Thus, the plaintiff failed to prove to be the collateral of the vendor. Learned Addl: Advocate General has rightly relied upon "1999 SCMR 1800 and 1999 SCMR 2502".
14. Learned Additional Advocate General while relying upon "PLD 1980 Lahore 104 and 1991 SCMR 487" has stated that a part of 115th amount deposited by the petitioner-plaintiff was withdrawn, therefore in accordance with section 22(5)(a) of the Punjab Pre-emption Act, 1913 the suit is not proceedable. In this regard, I do not agree with the argument advanced by learned Addl. Advocate General and the law referred to by him is not applicable to the facts of this case, as on the basis of a compromise arrived at between the parties the suit was decreed in accordance with the compromise, therefore the plaintiff withdrew the excess amount to the settled amount in accordance with the compromise and on the basis of withdrawal of amount in accordance with the compromise, the plaintiff cannot be non-suited.
15. In this case, when the 'Anjuman' about whom the august Supreme Court in the remand order dated 8-10-1995 held that the property was of the registered 'Anjuman', therefore non-impleading the 'Anjman' was a fatal defect on the part of petitioner-plaintiff. The objection of learned counsel for the petitioner on the admission of Exh.D-7 and Exh.D-8 in the evidence, has no value when the august Supreme Court in its remand order observed the 'Anjuman' as registered one. As such no exception can be taken from the concurrent findings and judgments and decrees passed by both the courts below.
16. While relying upon "PLD 1994 Supreme Court 501" learned counsel for the petitioner-plaintiff has argued that after the remand, court is bound to regulate the proceedings in accordance with the remand order. There is no cavil to this rule. I have noticed that the proceedings have been regulated in accordance with the remand order. The dictum laid down in the judgment reported as "1989 SCMR 1589 (The Evacuee Trust Property Board, Lahore v. Mst. Farkhanda Akhtar and others)" as has been relied upon by the learned counsel for the petitioner-plaintiff that a person dropped during the proceedings, under Order I, Rule 10 of the C.P.C. Cannot be again impleaded as party, is not applicable to the facts of case in hand.
17. The findings on issue No.5 proving the plaintiff to superior right of pre-emption as compared to the defendant-vendee, the plaintiff was bound to prove the suit property pre-emptable and with regard to the right of plaintiff to be superior from the defendant, issue No.5 and issue No.9 for relief are co-related in this case. When there are findings that the property was not pre-emptable, as it has not been proved the suit land to be agricultural land, admittedly it is situated within the Municipal limits of Chiniot, therefore the findings on issue No.5 recorded by both the courts below are not sustainable under the law. As no part of decree has been passed against the respondent- defendant, therefore even without filing cross objections this court can scrutinize the findings.
18. Furthermore, I have also noticed that the plaintiff got recorded his own statement after the close of defendant's evidence. He himself or his attorney did not appear in affirmative evidence, therefore in my view the statement of a plaintiff recorded after the close of defendant's evidence can be used only to the extent of rebuttal evidence of the defendant. It cannot be read in affirmative evidence of the plaintiff, as the defendant has no opportunity to lead rebuttal evidence against the statement of plaintiff to the extent of affirmative part of his statement. Therefore in my view, in a suit for pre-emption the right of pre-emption claimed by the plaintiff in the suit by no stretch of imagination can be said to have been proved by the plaintiff without his statement in affirmative evidence when the right has been claimed on the basis of being collateral of the vendor.
19. In the light of what has been discussed above, this civil revision being devoid of any substance is dismissed with costs throughout.