' This judgment shall dispose of R. S. As. Nos. 401 and 402, both of 1974, which are between the same parties and involve similar questions of law and facts. The evidence in both the cases is almost the same. The judgment shall, however, remain on the file of R. S. A. No, 401/74.
2. The facts are that Ali Hassan, appellant purchased the land measuring 19 Kanals 8 Marlas from one Zakaullah. He also purchased another area measuring 72 Kanals 18 Marlas from Mst. Noor Jahan and others. These transactions were witnessed by two separate sale-deeds dated 7-9-1967 which were duly registered. Qutab Din, respondent sued the vendee to preempt the sales and R. S. A. No, 401/74, relates to the first mentioned transaction and where the other suit is the subject matter of R. S. A. No, 402/74. Qutab Din, died during the pendency of these appeals and was substituted by his legal representatives. The appellant contested the suits on a number of grounds, including the plea that the bargain was settled through the respondent and, therefore he was estopped by his conduct from filing the suits. In both the suits issue No, 5 was formulated to the effect as to whether the plaintiff bad waived of his right by negotiating the sale. It was answered by the trial Court in favour of the appellant and as its verdict on issues Nos. 1 & 2 relating to the pre- emptibility of the sale and jurisdiction of the Court, was also against the respondent, the suits were dismissed on 31-7-1973.
3. The respondent went in appeal. The learned District Judge by his two identical judgments dated 16-9-1974, reversed the trial Court's findings on the aforesaid three issues, accepted the appeals and decreed the suits in favour of the respondent. The pre-emptor has come to this Court in second appeal.
4. The controversy is now confined to issue No, 5 only and the arguments on this issue alone have been addressed by the learned counsel for the parties. I have perused the record to evaluate their submissions.
5. The evidence adduced by the appellant to establish waiver consists of a writing dated 20-8.1967, Exh. D/3, thumb-marked by Qutab Din, respondent and witnessed by two persons, namely, Abid Hussain and Qasim Ali. It was scribed by the former. This document was placed on the file of the suit relating to the sale of land measuring 72 Kanals 18 Marlas but was referred to in the other suit.
Under this document, Qutab Din, respondent acknowledged that he got the bargain of the land measuring about 12 acres struck between the vendors and the vendee and received Rs, 2,400 as broker-fee. It further embodies the acknowledgment of the deceased that neither he intended to purchase the land nor was he possessed of funds; he would safeguard the interest of the vendee and that in case the vendors failed to execute the sale-deeds he would refund to the vendee the amount of stamp-paper and the commission. Abid Hussain appeared in the witness-box as D. W. 7 and produced document Exh. D.
3. He categorically stated that he as well as the respondent joined in the negotiations; the bargain was settled by the deceased, who received Rs, 2,400 as commission; the document was scribed by him and it was thumb-marked by the deceased in his presence. Qasim Ali also entered the witness-box on behalf of the appellant. He corroborated the statement of Abid Hussain. The appellant appeared as his own witness, and affirmed that the respondent was instrumental in bringing about the bargain between the parties and received Rs, 2,400 from him as commission. In rebuttal there is the solitary statement of respondent. He was confronted with Exh. D3 but he denied the thumb-impression and further controverted his participation in the bargain. The learned Civil Judge, relied upon Exh. D-3 and the oral evidence of the appellant. He maintained that appellant's witnesses had no motive to make false statements against the respondent. The fact that the latter did not produce any evidence in rebuttal also weighed with him. He concluded that the respondent actively participated in the deal, received broker-fee; he had no funds to purchase the land and thus was precluded by his own conduct from bringing the suits.
6. The factors which influenced the learned District Judge's decision in reversing the trial Court's findings were that the receipt Exh. D-3 did not find mention in the written statement and was also not entered in the list of documents relied upon the appellant; the vendee neither referred to this document in his examination-in-chief, nor did he tender it in his statement. In the estimation of the learned. District Judge, the document was in the nature of an agreement and, therefore, it had to be executed on a stamp-paper and if it was a relinquishment deed, it could not have been admitted in evidence for want of registration. He took the view that the appellant's oral evidence was not satisfactory and did not inspire confidence.
7. The learned counsel for the respondent has adopted the arguments which prevailed with the learned first appellate Court and on the other hand the learned counsel for the appellant sought restoration of the decision of the learned trial Court.
8. As stated earlier, I have examined the record carefully, to adjudge the soundness of the reasoning forming basis of the conflicting decisions of the Courts below. It is discernible from the written statements in both the suits that the appellant specifically pleaded that the respondent got the bargain settled. It is a basic rule that the pleadings should contain only the material facts and the parties are not required to plead evidence. The recitals in written statement definitely constitute the essential particulars on which the plea of waiver has been anchored. The omission to make a reference to Exh. D-3 in the written statement is not a valid ground to cast suspicion on its veracity.
9. As regards the non-inclusion of Exh. D-3 in the list of reliance of the documents, I find from the record that the respondent did not annex any such list with the written statement. Such a list was filed by him at a subsequent stage. Under Order VIII, rule 1, C. P. C., as amended by the Lahore High Court a document not entered in the list, can be produced in evidence with the leave of the Court.
The file shows that such leave was granted by the trial Court, when Exh. D/3 was tendered in evidence by Abid Hussain, in his statement. Needless to mention the grant of such leave was within the discretion of the learned trial Court and exercise of such discretion is not to be interfered with lightly by the appellate Court.
10. It is correct that the appellant did not produce this document when he appeared in the witness- box. The reason is obvious. It was not in his possession. It was in the custody of Abid Hussain D. W.
How it fell into his custody, was explained by him in his statement. This witness, on one side is related to the respondent and on the other hand he was not a stranger to the appellant. Both of them are the employees of the Telephone Department. As per his statement he also participated in the settlement of bargain.
' Seemingly, both the parties reposed confidence in him. According to him, Exh. D-3 was left with him and not passed on to the appellant, to eliminate the apprehension that the latter might not resile from the bargain. The learned trial Court before whom this witness was subjected to a lengthy cross-examination, did not choose to reject his explanation. The criticism that the appellant did not mention this document in his statement, is equally ill-founded. When he made his statement. This document had already been admitted in evidence. It was, therefore, not necessary for him to particularize the same in his deposition. He did state that a sum of Rs, 2,400 was paid by him to the respondent as commission. Rest of the matter in this behalf, was rightly left for cross-examination by the respondent.
11. The view taken by the learned District Judge that Exh. D-3 is an agreement and in the alternative the deed of relinquishment is manifestly wrong. The document is simply a receipt evidencing the payment of Rs, 2,400 and further includes some recitals in the nature of acknowledgment by the deceased respondent. Thus, the grounds on which the learned District Judge excluded this document from consideration, are wholly untenable. This document is fully proved by the statement of Abid Hussain and Qasim Ali. The burden of proof of issue No, 5 was on the appellant but by the statement of the two marginal witnesses of the document, the onus stood shifted to the respondent. The document was produced in evidence on 9-2-1971 and the appellant closed his evidence thereafter. It is noteworthy, that the respondent produced his evidence in rebuttal long after 9-2- 971 and he himself appeared in the witness-box on 25-9-1972. It is not a case in which he may be said to have been taken by surprise. Sufficient time was at his disposal to arrange for the evidence in rebuttal. He could have proved that the document did not bear his thumb-impression but as observed above the rebuttal consists of his solitary statement. In these circumstances the exclusion of Exh. D/3 from evidence is wholly illegal.
12. The learned counsel for the appellant has drawn my attention to section 167 of the Evidence Act to submit that the improper admission of document in evidence, is not a valid ground for reversal of a decision if there is other sufficient evidence to justify it. In this respect his argument was that the oral testimony of Abid Hussain and Qasim Ali is quite sufficient to sustain the appellant's plea of waiver. This argument deserves consideration. It has been laid down in Bakri and 4 others v.
Salehon and 3 others (1) that :-
(ii) Right of pre-emption, however, can be waived before the actual sale either by express refusal to purchase the property or by a clear conduct on the part of the plaintiff, showing that he is not interested in the purchase of the property."
' There is no justification to discard Exh. D/3. But even if it is omitted from consideration, there is enough oral evidence to warrant inference of the respondent's active participation in the bargain.
13. I am conscious that the learned District Judge dubbed the appellant's evidence as unsatisfactory. He, however, lost sight of the fact that Abid Hussain is related to the respondent and is also a marginal witness of the sale deed Exh. D/4 in R. S. A. No, 402/74. There is no logical basis to ignore his testimony or for that matter of Qasim Ali. On comparison of the merits of the findings of the two Courts below, I, feel, inclined to lean towards the evaluation of evidence made by the learned trial Court,
(1) PLD 1972 SC 133 ' which had the opportunity to examine the demeanor of the witnesses. There was no sufficient balance of improbability to justify the dislodging of the Trial Court's findings by the learned first appellate Court as to the trustworthiness of the appellant's oral evidence. I, therefore, set aside the first appellate Court's findings on issue No, 5 and restore that of the learned trial Court.
14. As a result of the above discussion these appeals are allowed, the judgment and decree of the learned first appellate Court, set aside and on the basis of finding on issue No, 5, the respondent's suits are dismissed with costs.