' CH. MUHAMMAD MASOOD JAHANGIR, J.---Through this civil revision, the judgment and decree dated 02.04.2008 of the learned lower appellate court rendered in Civil Appeal No, 314/ 2007 has been assailed. The said appeal was filed against the judgment and decree dated 13.01.2007 passed by the learned trial court whereby the suit for possession through pre-emption filed by the respondent/pre-emptor was dismissed.
2. Briefly, the facts are that the respondent/pre-empto filed a suit for possession through pre- emption in respect of Shop No, 3-S-41/P situated in Block No, 11, Sargodha, alleged to have been purchased by the petitioner/vendee vide sale deed No, 507-1 dated 06.02.2003 with the assertion in the plaint that the said sale was kept secret and she immediately expressed her intention of pre- emption by Proclaiming Talb-i-Muwathibat on 14.03.2003 at 11:00 a.m. in the Majlis consisting upon Jamil Ahmad, Abdul Haq and Abdul Ghaffar on having received information from Muhammad Usman, which was followed by issuance of a notice dated 17.03.2003 to the petitioner/vendee in the discharge of requisite Talb-i-Ishhad through registered post acknowledgement due, which was received by the vendee, but as it was not acted upon, the suit was filed. The same was contested by the petitioner/ vendee by filing written statement with the assertion that neither the respondent/preemptor possessed superior right of preemption nor due Talbs were performed as per law and specially that notice Talb-iIshhad was not dispatched to him. The learned trial court captured the disputed area of facts by framing the following issues:-- I. Whether plaintiff has no cause of action and locus-standi to file the instant suit? OPD
2. Whether suit is time barred? OPD
3. Whether suit has been filed with malice, therefore, the defendant is entitled to get special costs under section 35-A of C.P.C.? OPD
4. Whether defendant is entitled to receive incidental charges and expenses of improvement, if the suit of the plaintiff is decreed? OPD
5. Whether plaintiff was aware of the disputed sale since beginning? OPD
6. Whether the consideration amount has been fixed at Rs,16,00,000/- and actual paid? OPD
7. If the above issue is decided in negative then what is the actual sale price of suit property at the time of sale? OP-parties.
8. Whether the plaintiff has superior right of pre-emption qua the defendant/vendee ?OPP
9. Whether the requisite talks have been fulfilled in accordance with law? OPP 10.Whether the plaintiff is entitled to a decree for possession through pre-emption of the suit property? OPP 11 Relief.
3. The pre-emptor to prove her stance produced Muhammad Arshad, Booking Clerk of the post office as PW/1, Abdul Waheed, Postman as PW/2, Muhammad Hanif, Advocate scribe of notice talb- i-Ishhad as PW/3, Muhammad Usman, the alleged informer as PW/5, Jamil Ahmad, the alleged participant of Majlis as PW/6, Manzoor Ahmad, Patwari as PW/7 and she herself appeared as PW/4.
Besides the oral evidence, the respondent/pre-emptor also produced documentary evidence ranging from Ex.P/1 to Ex.P/7. In response, the petitioner/vendee also produced DW/1 to DW/5 and also tendered documentary evidence ranging from. Ex.D/1 to Ex.D/9. The learned trial court after thrashing the entire material available on record dismissed the suit filed by the pre-emptor vide judgment and decree dated 13.01.2007 while answering issues Nos. 8 and 9 in negative against the respondent/pre-emptor. Being aggrieved, an appeal was preferred by the respondent/pre-emptor before the learned lower appellate court, which was allowed and after setting aside the judgment and decree of the learned trial court, the suit for pre-emption was decreed while enhancing market price of the property in dispute from Rs,2,25,000/- to Rs, 16,00,000/- vide judgment and decree referred in para 1 ante.
4. Ch. Khursheed Ahmad, Advocate, learned counsel for the petitioner/vendee has argued that the respondent/pre-emptor failed to prove her preferential right being Shafi-shareek, but the learned lower appellate court, while misinterpreting available evidence on the record wrongly answered issue No,8 in her favor; that the findings on issue No,9 relating to performance of talbs are result of complete misreading and non-reading of evidence on the record, which being not sustainable are liable to be reversed; that sending of notice Talb-i-Ishhad could not be duly proved as name of the petitioner/vendee was wrongly written on the envelope and the same was never proved to be received by the petitioner/vendee; that the perusal of statement of postman (PW-2) reflects that notice Talb-i-Ishhad was dispatched to one Zafaryab, but . neither the same was delivered to Zafaryab or the petitioner namely Zafar Hayat nor acknowledgment due receipt (Ex.P/2) contained signatures of the recipient; rather signatures of some unknown persons are available on the same and respondent/pre-emptor failed to prove that notice talb-i-Ishhad was actually received by the petitioner/vendee, and that the petitioner in his statement categorically denied receiving of said notice, but learned lower appellate court erred in law while answering issue No,9 in favor of respondent/pre-emptor. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgment and decree passed by the learned lower appellate court and suit be dismissed while restoration of the judgment and decree delivered by the learned trial court.
5. On the other hand, no doubt Mian Shah Abbas, Advocate one of the counsel for respondent/pre- emptor has sent a written request for adjournment on account of his pre-occupation before the apex Court, whereas Hafiz Khalil Ahmad, Senior Advocate, who is also learned counsel for the respondent/pre-emptor has put his appearance and on instructions has argued the case. He has supported the impugned judgment and decree passed by learned lower appellate court and submitted that by production of concerned Patwari (PW/7), the preferential right being Shafi- shareek has fully been proved by the respondent/pre-emptor; that no doubt, notice Talb-i-Ishhad was inadvertently dispatched to one Zafaryab and initially suit was also filed in his name but thereafter an application under Order VI, Rule 17 of the Code of Civil Procedure, 1908 filed by the respondent/pre-emptor was allowed and the correct name of the petitioner/vendee was mentioned in the amended memo of the plaint by the respondent/pre-emptor and if any lacuna was available, that was cured by the leave of the Court. The learned counsel for the respondent/pre-emptor has urged that the pre-emptor also filed cross-objections regarding the findings on issues Nos. 6 and 7, but neither the cross-objections are available with the file nor any diary number could be disclosed by the learned counsel for the respondent/preemptor but even then the findings of learned lower appellate court regarding enhancement of sale price were questioned by the learned counsel for the respondent/pre-emptor during the course of his arguments. He has lastly prayed for setting aside of findings of issues Nos.6 and 7 while maintaining the rest of the judgment and decree passed by the learned lower appellate court and dismissing the instant civil revision.
6. Arguments heard and minutely perused the record.
7. This court is very much clear on the point that a party while supporting impugned judgment can assail the findings on the issues, which were decided by the learned courts below against him without filing cross appeal or cross-objections through his oral assertion. This view finds support from the dictum laid down by the superior courts in the judgments reported as "Muhammad Yar and others v. Allah Wasaya and others" (2013 YLR 1013), "Suba and others v. Abdul Aziz and others"
(2008 SCM R 332), "Ghulam Rasool through L.Rs, and others v. Muhammad Hussain and others" (PLD 2011 Supreme Court 119). In Suba's case (supra), it was observed in para No,5 of the judgment as under:-- "It is clear from the judgment dated 28-1-1999 passed by the Additional District Judge, Jampur, that the petitioners were precluded from addressing arguments as to the correctness of the finding of the trial Court on other issues including Issue No,4 merely on the ground that they had not filed any cross-objections or cross-appeal in the case. The course adopted by the Additional District Judge was violative of the provisions of Order XLI, Rule 22, C.P.C. and the judgment by a Full Bench of this Court in the case of Abdul Hague and others v. Shaukat Ali and 2 others 2003 SCMR 74, authored by one of us (Faqir Muhammad Khokhar, J.). It was held therein that a party in whose favor a decree was passed, was not necessarily required to file an appeal or cross-objection a.s it could defend the decree on all the available grounds in support of the decree in appeal as provided by Order XLI, Rule 22, C.P.C., even though such grounds had been found against it. In Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 this Court had taken the view that where a respondent had neither preferred a petition nor filed an appeal, the Court.had ample authority and full powers to extend relief to him provided that it was necessary either to do complete justice between the parties or the case otherwise involved invocation of Court's inherent powers. Beneficial provisions of Order XLI of Rule 23, C.P.C. could also be invoked to do complete justice or to prevent the ends of justice from being defeated and to adjust the rights of the parties in accordance with justice, equity and good consciences as laid down in the case of Salah-ud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597.
8. It is significant to note that learned trial court without discussing any evidence available on the suit file declared issues Nos. 6 and 7 regarding sale price being redundant. However, learned lower appellate court after appreciating the material available on record decided the same against the respondent/pre-emptor while fixing the sale price of the suit property as Rs,16,00,000/-. The perusal of sale deed (Ex.P/4) by virtue of which disputed property was purchased by the petitioner/vendee reflects that it was attested against a sale consideration of Rs,2,25,000/- and the petitioner/vendee in his written statement without giving any detail asserted that the disputed property was purchased against a sale consideration of Rs,16,00,000/-. No doubt, to prove the said assertion, the petitioner produced copy of agreement dated 06.10.2002 (EX.D/1) coupled with receipts dated 06.10.2002 and 04.02.2003 (Ex.D-2 and 3) besides Muhammad Sarwar, Stamp Vendor/deed writer (DW-1), Nabi Bukhsh (DW-2), attesting witness of Ex.D-1 to Ex.D-3, Muhammad Shafique (DW-3) the other attesting witness of Ex.D/1 and Ex.D/2, Muhammad Inayat (DW-4), attesting witness of receipt (Ex.D-3) whereas the petitioner himself appeared as DW-5, but neither the detail of the agreement (Ex.D/1) as well as receipts (Ex.D/2 and 0/3) was mentioned in the body of the written statement nor any such case was developed by the petitioner/vendee. It is settled law that a party has to first plead facts and pleas in the pleadings and then to prove the same through evidence. A party is not allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of "secundum allegata et probata" that a fact has to be alleged by a party before it is allowed to be proved is fully applicable in this case, which has full command of provisions of Order VI Rule 2 and Order VIII Rule 2 of the Civil Procedure Code, 1908. As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored. Reliance can be placed upon the dicta laid down in the case law reported as Muhammad Wali Khan and another v. Gul Sarwar Khan and another (PLD 2010 SC 965) and Haider Ali Bhimji v. Vth Additional District Judge, Karachi (South) and another (2012 SCM R 254), wherein it was held that in absence of specific pleadings, the court could not allow a party to grope around and draw remote inferences in his favor from his vague expressions. The perusal of receipts (Ex.D-2 and D-3) reveals that some of the amount out of the total consideration was allegedly paid by the petitioner/vendee through cheques, but to prove the said factum, no official from the concerned bank was got summoned by the petitioner/vendee and in absence of such evidence, it cannot be assumed that property in dispute had in fact been purchased against the consideration mentioned in agreement (Ex.D-1). Even otherwise, a registered document i,e, sale deed (Ex.P-4) attains presumption of truth over a private document.
The presumption attached to the certificate of Sub-Registrar under section 60 of the Registration Act, 1908 could not be rebutted by the beneficiary of the document by production of agreement and sale receipts. It is settled principle of law that the price mentioned in disputed sale deed is always given preference over the contrary assertions. The petitioner/vendee had himself got executed and attested sale deed (Ex.P/4) against a consideration of Rs,2,25,000/- and if the same was got attested to save the public exchequer, then his other stance cannot be considered. If he could play fraud or misrepresentation against the government functionary to save the duties/fees, then on the same analogy, he could have also made fictitious document regarding the exorbitant sale price of the disputed property after having received knowledge that the suit for pre-emption was filed. So the findings of the learned lower appellate court on issues Nos. 6 and 7 are reversed and sale price of the disputed property is fixed @ Rs,2,25,000, which was mentioned in the sale deed.
9. From the perusal of sale deed (Ex.P/4), it reveals that part of disputed property i,e, shop bearing Khawat No 25, Khatooni No, 25 and khasra No, 83 was sold out to Zafar Hayat, petitioner/vendee and as per statement of Manzoor Ahmad, Patwari (PW-7), the respondent/pre-emptor is also owner in the same khawat and khasra number by means of mutation No, 24397 dated 21.01.1986 (Ex.P/8). This factum has also been proved through copy of Register Haqdaran-e-Zameen for the year 1998-99 (Ex.P/6). So the findings of learned lower appellate court to the extent of issue No,8 are affirmed.
10. The pivotal question in the instant case is covered by issue No, 9 regarding the fulfillment of talbs. No doubt, respondent/pre-emptor by producing Muhammad Usman, the informer as (PW/5) and Jameel Ahmad, the participants of Majlis as (PW-6) and by appearing herself as (PW-4) fully proved the performance of talb-i-Muwathibat as narrated in the plaint although some minor discrepancies are visible in the statements of the said PWs, but the same cannot be declared fatal regarding the fulfillment of first demand. So, the finding of learned lower appellate court regarding fulfillment of 1st demand by the respondent/pre-emptor are affirmed.
11. It is pertinent to note that respondent/pre-emptor specifically and positively pleaded in para No,5 of the plaint that notice talb-i-Ishhad was received by the petitioner/vendee, whereas the petitioner/ vendee not only in his written statement but also in his examination-in-chief as DW.5 categorically denied the said factum and asserted/deposed that no such notice was ever delivered to him. In said scenario, it was obligatory upon the respondent/pre-emptor to substantiate his avowal as recited in para-5 of the plaint by producing affirmative evidence, but neither the respondent/pre-emptor nor her informer (PW-5) and even participant of the Majlis (PW6), who were also the attesting witnesses of notice Talb-i-Ishhad (Ex.P-3) deposed a single word in their statement-in-chief that the dispatched notice Talb-iIshhad was received by the petitioner/ vendee. The deposition of Muhammad Hanif, Advocate scribe of the notice Talb- iIshhad is also silent to this extent. There is no cavil with the proposition that a plaint and a written statement cannot be treated as a piece of evidence and a party is required to prove the contents of its pleadings by production of persuasive and tangible evidence. Reliance in this respect is placed upon the judgments- reported as Hakim-udDin through L. Rs, and others. v. Faiz Bakhsh and others (2007 SCM R 870) and Muhammad lqbal v. Ali Sher (2008 SCM R 1682). The respondent/pre-emptor initially instituted the instant suit on 12.05.2003 against Zafaryab son of Muhammad Abdullah. The perusal of sale deed (Ex.P/4) clearly depicts that it was Zafar Hayat son of Muhammad Abdullah, who purchased the disputed property, but the perusal of Booking Registry Receipt (Ex.P/1), Acknowledgement Due Receipt (Ex.P/2) and copy of notice Talb-i-Ishhad (Ex.P/3) reveals that notice Talb-i-Ishhad was not only drafted against some other person, namely, Zafaryab, rather the same was also booked against the same person for its delivery. The petitioner/vendee approached the court and by filing written statement specifically raised a plea that neither notice Talb-i-Ishhad was dispatched in his name nor it was delivered to him. However, to prove second demand and to cover the above referred lacuna regarding the execution of notice Talb-i-Ishhad against a different name and its delivery to him, the pre-emptor produced Muhammad Arshad, Booking. Clerk as (PW-1), who categorically stated in his cross-examination that registered post, was booked against Zafaryab. The receipt (Ex.P/1) also proved the fact that it was not booked against vendee, namely, Zafar Hayat. Abdul Waheed, the concerned postman was brought into the witness box as (PW-2), who nowhere deposed in his statement that he delivered the same to the petitioner/vendee rather he made a vague statement that registered post was received by him for its delivery, which he delivered on the required premises. He admitted in his cross-examination that Zafaryab was not available at the house where the said registered envelope was delivered. He also admitted that the person of the same name was also not resident of the said locality and that acknowledgement due receipt (Ex.P/2) did not bear the signatures of Zafaryab or Zafar Hayat. The said portion of the statement of the concerned postman has really shattered the case of the respondent/pre-emptor regarding the factum that the notice Talb-i- Ishhad was actually delivered to the petitioner/vendee. The preemptor was not only bound to prove that he got dispatched notice Talb-i-Ishhad to the petitioner/ vendee, but also to establish that the said notice was delivered to the addressee.
12. It is significant to note that to examine the signature over the acknowledgement due receipt (Ex.P/2), the original record of the suit file was summoned by this Court. During the course of arguments, the suit, file was placed before Hafiz Khalil Ahmad, learned counsel for respondent/pre-emptor for the comparison of the signature available on Ex.P/2 with the signature of petitioner/ vendee appearing on attested copy of sale deed as well as on written statement filed by the petitioner/vendee, who after examination stated that the signatures over Ex.P/2 did not match with the signature over the above referred two documents. I have also viewed the signature over all the three above referred documents and found that the signature over Ex.P/2 have no similarity with the signatures of petitioner/vendee over the sale deed (Ex.P/4) as well as original written statement. In the present case, there was neither any ambiguity in the sale deed regarding the correct name of vendee nor any such ambiguity has been disclosed by the respondent/pre-emptor during her statement as (PW-4). So the respondent/ pre-emptor by committing gross negligence got drafted notice Talb-i-Ishhad against a wrong name and she badly failed to prove that said notice was delivered to the petitioner/vendee, which was required to be proved by her as per following dicta of the apex court. i) Muhammad Bashir and others v. Abbas. Ali Shah (2007 SCM R 1105) ii) Sultan All v. Ghulam Hussain (2012 YLR 2545) iii) Rabia Bibi and another v. Jahana through L.Rs, (2013 YLR 2016) iv) Allah Ditta through L.Rs, and others v. Muhammad Anar (2013 SCM R 866) v) Zabiullah and others v. Awal Khan (2014 CLC 976) and vi) Khan Afsar v. Afsar Khan and others (2015 SCM R 311)
'The perusal of above aphorisms leaves no room that it is sine qua non for a preemptor to prove that notice Talb-i-Ishhad dispatched to the vendee/defendant through registered post A.D. was actually delivered to him. No doubt, in the instant case, the respondent/pre-emptor produced Booking Registry Clerk as well as the concerned postman, but their statements, as discussed supra, are not adequate and satisfactory to hold that respondent/pre-emptor succeeded to prove that notice Talb-i-Ishhad was actually delivered to the petitioner/ defendant. In the said state of affairs, the findings of the learned lower appellate court on issue No,9 regarding the fulfillment of second demand are not sustainable, which are hereby reversed and the said issue is answered against the respondent/pre-emptor.
13. Consequently, the instant civil revision is accepted, impugned judgment and decree dated 02.04.2008 delivered by learned Additional District Judge, Sargodha is hereby set aside and suit for possession through pre-emption filed by the respondent/pre-emptor is hereby dismissed with no order as to cost.