' MUHAMMAD IQBAL KALHORO, J.---The applicant has assailed through the instant revision application, the judgment and decree dated 29-4-1998 passed by the learned Senior Civil Judge Naushehro Feroz in F.C. Suit No,175/1993 (Old F.C. Suit No, 17/89) and the judgment and decree dated 30-9-2000 passed by the District Judge Naushehro Feroz in Civil Appeal No, 22/1998 filed by him.
2. The applicant filed the suit for pre-emption against the respondents, seeking following relief(s):--
(1) A decree of pre-emption in favour of plaintiff/applicant for the suit land be passed and defendants Nos.1, 2, 3 to 10 be ordered to get the suit land substituted in the name of plaintiff and to receive Rs,50,000 as pre-emption money or if the defendants No,1 to 10 fail, plaintiff be allowed to deposit the same in court and Nazir of the court be ordered to get the name of the plaintiff substituted for the suit land.
(2) Costs of the suit be borne by the defendants Nos.1 to 10 and any other remedy by which this Court deems fit may be awarded. To grant permanent injunction in favour of the plaintiffs and ad- interim injunctions during pendency of suit whereby defendants 9 to 28 may be restrained not to interference with peaceful possession and enjoyment of suit land by.Plaintiffs or create third party rights and further defendants Nos.2 to 8 be restrained not to harass, or dispossess plaintiffs, on the instigation and collaboration with defendants Nos.9 to 28 without due course of law.
3. The relevant facts as narrated in the plaint are, the defendant No,11 was the owner of the agricultural land bearing S. No, 583 (1-27) acres deh Khahi Memon Taluka Nabshehro Feroz which was purchased by the defendants Nos.1, 2 and one Ahmed descendants-in-interest of defendants No,3 to 10 for Rs,50,000 through a registered sale deed dated 10-2-1988. The applicant acquired such knowledge in the last week of July 1988 when all the three defendants mentioned above came to visit the suit land adjacent to his lands where he was also present. The respondents disclosed to him that they had purchased the suit land and on hearing such disclosure he informed them about his status of pre-emptor on the basis of his being Shafi- i-jar and Shafi-i- khalit and immediately made the jumping demand by declaring his intention to purchase the suit land and asked the respondents to receive the same amount from him which they had paid to purchase the suit land and in that way he completed the first demand of pre-emption i,e, Talb-i- Mowasibat. He then called the two witnesses working in the nearby lands and in their presence after referring to his first demand made the second demand by telling the respondents that they should sell the suit land to him against the same sale consideration as he being the owner of the adjoining land having survey numbers 351, 353, 354 and 359 had the superior right of pre-emption, thus he made the requisite second demand i,e, Talb-iIshhad by invoking the witnesses, however the defendants No 1,2.And Ahmed refused to sell the suit land hence he filed the suit.
4. The defendant No,2 namely Sarwar (respondent No,2) contested the suit by filing his written statement, wherein he denied the claim of the applicant and stated that the applicant was in knowledge about the purchase of the suit land since the beginning, where he had got two houses constructed with the expenditure of Rs,50,000 after its purchase and had spent thousands of rupees over the development of the suit land which was situated near their houses. The applicant remained silent for one year and never objected to the purchase of the suit land by them.
According to him he was already the owner of the land bearing S.No,362 located in the same deh.
The applicant had never ever made any demand of pre-emption nor he was the owner of the adjoining land. All of them (respondents) after filing of the suit by the applicant had gone to him twice carrying the Holly Quran with.The request that they were poor 'people and he should not put them in trouble but the applicant refused to withdraw the suit. The said written statement contains a note at its bottom which reads as" I adopt the same w.s. On behalf of the remaining defendants in the above matter."
5. On the pleadings of the parties, the trial court framed the following issues:--
(1) Whether the plaintiff is entitled to pre-empt the suit land?
(2) Whether the plaintiff duly made the required demands?
(3) Whether the defendant No,1 has constructed two houses over the suit land after its purchase? If so, to what effect?
(4) What should the decree be?
6. During the trial the applicant examined himself as well as his witnesses namely Khuda Bux and 13achal and produced the relevant record. On his turn the respondent examined himself and produced the gift deedyertaining to the land containing, inter alia, S.No,354 gifted by the applicant to his sons. The trial-court vide judgment and decree dated 29-4-1998 dismissed the suit the applicant which was challenged by him in Civil Appeal No,29/1998 but the learned appellate court also dismissed the same vide judgment dated 30-9-2000 and decree dated 6-10-2000.
7. The applicant, however being dissatisfied with the said judgment and decree filed the instant application before this court.
8. Learned counsel for the applicant has contended that only the respondent No,2 filed the written statement whereas the remaining respondents failed to bring on record their denial of the assertions made by the applicant, which would mean they have admitted the claim of the applicant. He further contended that in the written statement the respondent No,2 has given evasive replies to the claim of the applicant which do not fulfill the requirement of law whereby, to the averments of the plaint, the specific denial has to be made else the same would be construed to have been admitted. Per learned counsel the evidence of the respondent is beyond the pleadings taken by him in the written statement, which, as per dictates of law, cannot be taken into account and has no relevancy with the controversy between the parties. He further argued that the judgments and decrees recorded by the courts below are not in accordance with law as both the courts have failed to exercise the jurisdiction vested in them by refusing to accept the claim of the applicant regarding his supreme right of pre-emption over the suit land. Per learned counsel both the courts below have erred by deciding that the applicant had gifted his land bearing S.No,354, adjacent to the suit land during pendency of the suit to his sons and concerning the ownership of the remaining land pleaded by him in his plaint, he had failed to produce any evidence to prove his right of pre-emption to the suit land, which, according to him, is contrary to the facts of the case.
He further contended that both the courts below have not considered that the applicant had challenged the so-called gift deed in the F.C. Suit No, 49/98 which was decreed in his favour vide judgment and decree dated 17-2-1999 passed by the learned Senior Civil Judge Naushehro Feroz, whereby the said gift deed was declared null and void. Per learned counsel the said judgment has attained finality as it was not challenged by any quarters including the respondents, therefore, the purported gift deed should not have been considered as an impediment in the way of the applicant to exercise his superior right of pre-emption and merely for such reason the applicant ought not to have been non-suited and refused his right to purchase the suit land. Per learned counsel both the courts below have not considered the unanimous evidence adduced by the applicant's witnesses who have fully supported the case of the applicant. He further argued that both the courts below have failed to note that the respondent in his written statement had neither pointed out to the factum of gift nor subsequently any amendment was sought by him to alter his written statement to bring it in harmony with such fact and yet his evidence in respect of the gift was accepted and on the basis thereof the entire suit of the applicant was dismissed. Per learned counsel the findings of the appellate court are erroneous and unsustainable under the law as it failed to formulate the points for determination, which is a mandatory requirement under Order XLI Rule 31 C.P.C. He further contended that the concurrent findings given by both the courts below are not sacrosanct and can be reversed by the revisional court when the evidence on record has not been properly appreciated or the courts below have net exercised the jurisdiction vested upon them. He lastly prayed for setting aside the impugned judgments and decrees and in support of his contentions relied upon the case laws reported in 1996 SCM R 336, 2002 SCMR 236, 2012 CLC 899 and 912, 2013 M LD 1845 and PLD 2A SC 155.
9. Rebutting him the learned counsel for the respondents contended that there is no bar under the law that the written statement filed by one defendant cannot be adopted by the remaining defendants particularly in the present case where the defendants are cousins inter se. Per learned counsel during the pendency of the suit the applicant had gifted his property viz. Land bearing S.No,354 which was the base of his case as he had claimed entitlement to the right of pre-emption by showing himself the ostensible owner of that land but that he could not maintain till the disposal of his case. He further contended that. In terms of Para No, 233 of Mohemmadan Law the pre- emptor was required to maintain his right of pre-emption at three different stages, viz. On the date of sale of the property, on the date of institution of the suit for preemption regarding that property and up to the time the decree is passed, however in the present case, according to him the land which provided raison d'etre to the applicant to file the suit had been gifted by him to his sons and such gift-deed was subsisting at the time the decree was passed by the trial court, hence the right of pre-emption, if any, existing in favour of the applicant stood defeated by his gifting the property to his sons. He further contended that-the judgment and decree passed in the F.C. Suit No, 49/98, filed by the applicant against his sons was never brought on record by him for consideration and such application under Order XLI Rule 19, C.P.C. Moved for the production of said document was dismissed by the learned appellate court against which he never filed an appeal. He further contended that the said suit was filed by the applicant on 28-4-1998, just a day before the announcement of the judgment in his suit for the pre-emption after getting sure that in the presence of the gift deed and requisite conditions stipulated under Para No, 233 of Mubemmadan Law, which was referred by him in his final arguments before the triai court, he would not succeed to establish his right of the pre=emption. According to him, the applicant suddenly, after realizing his mistake of gifting the land to his progeny filed the suit against them who, being in collusion with him, never appeared before the trial court to contest the said suit, resultantly the same was decreed ex parte which was not challenged by the respondents because they had no concern whatsoever with the property of the applicant or its gift by him to his sons. He lastly prayed for dismissal of instant revision and in support of his arguments relied upon the case laws reported in 1994 CLC 2020.
10. I have heard the learned counsel for the parties at length and have gone through the material so made available to me with their assistance and the case laws cited by them during their arguments.
11. The evidence, adduced by the applicant and his witnesses to establish his making second demand i,e, Talb-i-Ishhad in their presence with reference to his first demand i,e, Talb-i-Mowasibat to purchase the suit land does not appear to be confidence-inspiring as on a number of particulars the witnesses have varied with the applicant and have made certain improvements in their depositions with relations to the facts which were even hot disclosed to them by the applicant. For instance both the witnesses in their depositions have said that the sale consideration of the suit land was Rs,50,000, the record which includes evidence of the applicant does not or had mentioned about any such figure at the time of making second demand i,e, Talb-i-Ishhad to purchase the land from the respondents. Their evidence, as per averments of the plaint, is relevant only to the extent of their being witnesses to the second demand made by the applicant from the respondents to purchase the suit land, therefore divulging the price of suit land in their evidence which was apparently beyond the knowledge A confided to them by an accidental happening has shown their interest in the proceedings and has resultantly rendered their evidence unbelievable and untrustworthy. Apart from the said oddity, I have found many glaring differences inherent in their depositions over the timings of their arrival at the pointed place where the conversation between the parties with regard to the purchase of the suit land took place and their lack of knowledge about the area in the close vicinity of the suit land, where they had been working for the last many years though, also does not skip the attention. The learned appellate court has detailed in the impugned judgment the various discrepancies made by the applicant and his witnesses in their depositions and after a thorough discussion and a proper appreciation of evidence has dismissed the appeal. Therefore, there appears no non-reading or misreading of the evidence or any error in the exercise of the jurisdiction by the appellate court.
12. The applicant in his suit has stated that he is the owner of the land bearing S.Nos.351, 353, 354 and 359 situated adjoining to the suit land and on the basis of such claim he filed the suit for pre- emption. The burden to prove his ownership of the said land and its being adjacent to the suit land was upon the applicant. In his evidence he has specifically mentioned-to be the owner of land having S.No,354, regarding which he produced the record of rights, however, with relation to his other land alleged to be abutting with, the suit land, he has neither made any reference about them in his evidence nor filed any evidence to establish his ownership whereof and/or its proximity with the suit land making him Shafi-i-jar or Shafi-i-khalit as claimed by him. The record does not manifest that any map of the deh showing his land consisting of above B mentioned survey numbers, including S.No,354, was filed by the applicant during the trial to establish its contiguity with the suit land either. Admittedly the person merely on the basis of his unsupported assertions appertaining to the ownership of some land presumed to be lying next to a sold out piece of land cannot claim to be Shafi-i-Jar or Shafi-i-Khalit to enforce the right of pre-emption. Para No, 231 of Muhammadan Law explicitly prescribes three classes of persons to be entitled to claim pre- emption. For the sake of convenience Para No, 231 is reproduced herewith:--
231. Who may claim pre-emption.---The following three classes of persons and no others, are entitled to claim pre-emption, namely---
(1) A co-sharer in the property, [Shaft-i-sharik],
(2) A participator in immunities and appendages, such as a right of way or a right to discharge water; [Shaft-i-khalit]; and
(3) Owners of adjoining immovable property, [Shaft-i-jar], but not their tenants, nor persons in possession of such property without any lawful title. [Baillie, 481]. A waqif or mutwalli is not entitled to pre-empt, as the waqf property does not vest in him.
' The first class excludes the second, and the second exclude's the third. But when there are two more pre-emptors belonging to the same class, they are entitled to equal shares of the property in respect of which the right is claimed. [Baillie, 500].
13. The above para evinces that certain conditions shall stand fulfilled before a person can claim his entitlement to the right of preemption. He should either be a co-sharer in the property (Shafi-i- sharik), or a participator in the immunities and appendages, such as his right to use the same way or right to discharge water (Shafi-i-khalit) and/or he must be the owner of the adjoining immovable property (Shafi-i-jar) to claim such right. The applicant has put up his case by claiming to be a Shafi-i-khalit and Shafi-i-jar, however, no documentary evidence leading to such a conclusion is brought by him on the record. No record of rights in his favour in respect of other survey numbers of his land, except the Survey Number 354, to determine his status of pre-emptor has either been filed by the applicant. The learned counsel's argument that since the plea that the applicant gifted his property viz: S.No,354 to his sons was. Taken by the respondent only in his evidence, which is beyond the pleadings, the same cannot be looked into under the law to determine the right of the applicant to pre-emption cannot be acceded to as there is no bar to take stock of the material which is relevant to the controversy between the parties and has been brought on the record without any objection thereto from the other side, as is the case in the present on matter, to arrive at a just conclusion. The production of the gift deed by the respondent No,2 in his evidence to assist the court to decide the issue conclusively would not in any way take his case out of the pleadings. Perusal of his cross examination would show that no suggestion has been put to him by the applicant that the said gift deed was either false, fictitious or manipulated or it cannot be referred or used against him being beyond the pleadings. The failure of the applicant to cross examine the respondent over the gift deed produced by him in evidence in fact leads to an irresistible inference about the subsistence of such document at the relevant time. The subsequent filing of the suit by the applicant challenging the said gift deed against his own sons, who never appeared to contest the case against him, would rather reflect that the said judgment and decree was obtained by him in collusion with his sons with the sole object of keeping alive his professed right of the pre-emption to the suit land, which was patently lost by him the moment he had gifted the property to his sons on the basis of which he filed the suit. The impression of the said judgment and decree being collusive in nature further gets fortification from the detail of the property mentioned in the gift deed duly registered on 23-.12-1996 which shows that besides an area of the land comprising the Survey. Number 354, the other land having an area of 42.16 acres in deh Kari, an area of 8.29 'A acres in deh Molhan' Jageer, 9.23 acres in deh Khahi Rahu and 20.34 acres, totaling an area of 101.22 1/2 acres was gifted by the applicant to his sons which is so evident from the appended schedule of the property filed by the applicant in his suit. The preparation of such a detailed document could not be believed to have been done without the knowledge and active participation of the applicant. His remaining silent for-almost 3 long years until such a fact was stressed in the evidence by the respondent in the year 1999 is inexplicable. The perusal of the judgment in F.C. Suit No,49/1998, which contains contents of his plaint, produced by the applicant with the instant application denotes that no allegations of fraud or fabrication in the preparation of said gift deed in order to deceive him out of his property have been leveled by the applicant against his sons. Therefore obtaining the ex parte judgment and decree in an ostensible collusion with his own sons would not absolve the applicant of the primary burden under para 233 of the Muhammadan Law to prove that not only on the date of sale but also at the time of instituting the proceedings to claim right of pre-emption and up to the time the decree was passed by the trial court, he had the superior right of pre-emption being the owner of the adjoining land. It is pertinent to reproduce here para No 233 of the Muhammadan Law.
233. Ground of pre-emption must continue until the decree is passed-- ' The Right in which pre-emption is claimed---whether it be co-ownership, or participation in appendages, or vicinage---must exist not only at the time of sale, but at the date of the suit for pre-emption, and it must continue up to the time the decree is passed. But it is not necessary that the right should be subsisting at the date of the execution of the decree, or at the date of the decree of the appellate Court. The reason is that the crucial date in these cases is the date of the decree of the Court of first instance.
14. I therefore, find no illegality in the conclusion arrived at by the two courts below that the applicant was not able to maintain the right of pre-emption to the suit land up to the time the decree in his case was passed.
15. The contention of the learned counsel that non-compliance of the provisions under Rule XXXI, Order XLI has rendered the judgment of the appellate court illegal is also without force as any irregularity in this respect can be ignored if provisions have been substantially attended to by the appellate court. The overall assessment of the evidence made by the trial court which was subsequently affirmed by the appellate court is in consonance with the evidence produced on the record by the parties respectively and it appears that no piece of material brought by the parties has been excluded out of the consideration by both the learned courts below. The appellate court has given findings on all the points the parties are at odds with each other by discussing every issue framed by the trial court, therefore no prejudice appears to have been occasioned to the applicant in this regard. The appellate court would be said to have given its judgment in accordance with the provisions of Order XLI, Rule 31, C.P.C. If it has dealt with every disputed point between the parties and has given its findings thereon duly supported by the reasoning. Reliance can be placed on the case of Dariya Khan and others v. Saleh Khan and 3 others, 2004 CLC 1843, wherein it is held in para No,8 as under:--
8. The second objection raised on behalf of the petitioners regarding non-compliance of the provisions of Order XLI, Rule 31, C. P. C, is equally without force. Learned Appellate Court was alive to the situation and the issue involved has been dealt with and decided in a careful manner. The Appellate Court has given its findings on all the points of controversy and no prejudice seems to have been caused to the petitioneRs, So far as the question of giving issue-wise findings by the Appellate Court is concerned, the same is not the requirement of law as under Order XLI, Rule 31 C.
P. C, the Appellate Court is to state the points for determination, give its decision thereon and reasons for the said decision be also mentioned. If the Appellate Court chalked out a point of controversy and gave its findings thereon which are duly supported by reasoning, then the Appellate Court would be said to have given its judgment in accordance with the provisions of Order XLI, rule 31 C.P.C. If any authority is needed on the point, reference can be made to Umar Din v. Ghazanfar Ali and 2 others 1991 SCMR 1868 and Mst. Husna Bano v. Faiz Muhammad Mugsi and another 2000 CLC 709..
16. Notwithstanding the above, even if the strict compliance of the provisions under Order XLI Rule 31, C.P.C. Is found lacking in the judgment of the appellate court which, however, has rendered the substantial justice by considering the entire evidence available on the record, such irregularity can be condoned and no exception, under the circumstances, can be had to the judgment of the appellate court merely on such account, for it is the well settled principle of law that the technicalities should not be allowed to impede the way of justice. For reliance the case of Muhammad Siddique v. Azizuddin, 2004 M LD 251, can be cited where in para No,19, this court has held as under:--
19. The net outcome of the discussion on these points is that in each case the question regarding substantial compliance of Order XLI Rule 31, C. P. C. Would depend on nature of the judgment which is under appeal and even if the judgment of learned Appellate Court is not satisfactory and strict compliance of the said rule has not been made it is still acceptable if the findings are based on proper and legal evidence. Regarding the format in which the findings should be stated, there is no fixed rule. Nevertheless, it is not always the duty of Appellate Court agreeing with the view taken by the trial Court on the evidence, either to restate the effect of and evidence or to reiterate the reasons given by the trial Court and in that event the expression of general agreement with the reason of the trial court would ordinarily suffice. Reference in this context may be made to Girijanandini v. Bijendra Narain (AIR 1967 SC 1124).
17. Keeping in view the above dictum laid down time and again by the superior courts, I am of the consideration that the learned appellate court has looked into the entire evidence precisely and has recorded its findings duly supported by the reasoning thereby agreeing with the view taken by the trial court on the issues, which in absence of any material irregularity or miscarriage of justice cannot be interfered with by this court as the jurisdiction of the High Court to interfere with the concurrent findings of the fact in revisional jurisdiction under section 115, C.P.C. Is very limited. The court would interfere with such findings in exercise of its powers under section 115, C.P.C. When the I conclusion arrived at by the courts below are shown to have been based on insufficient evidence, misreading of evidence, non-consideration of material evidence or if they are the result of an erroneous assumption of facts, patent errors of law or due to consideration of inadmissible evidence, or if there is an excess or abuse of jurisdiction, or when it is established that a view has been taken which is not in conjunction with the evidence available on the record. However, in the present case the applicant has failed to highlight any patent illegality prevailing in the findings of the learned two courts below to justify an exercise of jurisdiction by this court in terms of section 115, C.P.C.
18. Besides, I am of the view that the time is no more in favour of the applicant as much water has passed from under the bridges since the sale of the suit land took place (1988). Admittedly the object behind granting the preferential right of pre-emption to the persons enumerated in para No,233 of Muhammadan Law is to check the descending of the strangers into one's neighborhood and to preserve the family heritage and honour as in the absence of such right, it is feared that strangers would come to occupy the vicinity and would rupture the cultural fabric shrouding a particular section of people living in the close proximity with each other. As per version of the applicant's witnesses the suit land is situated in front of respondents' houses which they had purchased about 26 years back and to disturb its sale after a lapse of such long time in absence of any confidence-inspiring evidence produced by the applicant to establish his right of pre-emption would be against the natural norms of justice.
19. In view of above discussion, I find no merits in the civil revision which is dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.