1. WAHEEDUDDIN AHMED, J.--This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in R. S. A. No, 682 of 1962 dated the 25th November 1966.
2. By this judgment, a learned Single Judge of the High Court reversed the concurrent findings of the Courts below in a suit for pre-emption brought by the respondent and accepted the appeal.
3. The facts giving rise to this appeal are that on the 15th April 1958, one Mst. Sakina Bibi sold agricultural land measuring 13 kanals and 14 marlas situate in Nawan Rangpur, Tehsil and District Gujrat for Rs, 15,000 to the appellants by a registered sale deed, Exh. D.
2. According to the deed, Rs, 13,000 were paid in cash to the vendor by the vendees before the Sub-Registrar and balance of Rs, 2,000 was left in deposit with the vendees to redeem the mortgage of the land. Respondent Master Fazal Karim filed a suit for possession of the suit land by pre-emption on the 14th April 1959, on the ground that he had a preferential right to acquire the land in dispute. He further alleged that the price or market value of the land in suit was not more than Rs, 7,000. The suit was resisted by the appellants. They denied the superior right of pre-emption of the plaintiff and stated that the price of Rs, 15,000 was fixed in good faith and was actually paid to the vendor. They further alleged that they have redeemed the existing mortgage of the land on payment of Rs, 2,000. According to them, the market value of the land in suit was not less than Rs, 15,000. The appellants further claimed to have effected improvements on the land by incurring an expenditure of Rs, 7,000. They further averred that the plaintiff had participated in negotiation for sale between the vendor and the vendees. He settled the price and was present at the time of the registration of the sale deed. They pleaded that the plaintiff was estopped by his conduct from bringing the suit.
4. On the pleadings of the parties, the trial Court framed as many as eight issues. It is not necessary to reproduce all of them. The dispute between the parties is in respect of issue No, 6 which is reproduced below :- "Whether the transaction in dispute took place with the consent of the plaintiff and the plaintiff is estopped from bringing this suit."
5. The appellants, on the above-mentioned issue, examined D. W. 1 Sh. Saeed Ahmad Zia, Advocate, Gujrat, Fazal Hussain D. W. 2, Liaquat Hayat D. W.
3. The respondent examined himself as P. W.
2. He also examined P. W. 5 Alam Shah. D. W. 1 Sh. Saeed Ahmad Zia stated that so far as he remembered the plaintiff was present at the time of the registration of the sale-deed and defendant No, 1 told him afterwards that the plaintiff had associated at the time of registration of the sale-deed. The witness further stated that about two months ago, he reprimanded the plaintiff for having filed the suit in spite of the fact that he had joined the registration of the sale-deed and the plaintiff kept quiet. Fazal Hussain D. W. 2 is the husband of vendor Mst. Sakina Bibi. He stated that the plaintiff was known to the defendants and he joined the plaintiff with him to help him in finalising the transaction. He being illiterate sought the help of the plaintiff for this purpose. He further stated that Liaquat Hayat defendant had asked the plaintiff if he had any mind to file the suit for pre-emption for the land in dispute and the plaintiff assured him that there was no danger of any such suit. It was on this assurance that the land in suit was purchased by the appellants. Liaquat Hayat defendant No, 1 (D. W. 3), is an Advocate of Gujrat. He also gave the same version as given by Fazal Hussain D. W.
2. In rebuttal the plaintiff denied this allegation. His witness P. W. 5 Alam Shah who is a marginal witness of the sale-deed admitted that the sale-deed was executed and registered in the presence of the plaintiff, Exh. P. 3, notice given by the plaintiff and Exh. D. 1, reply given by the appellants were also produced in evidence.
6. On the evidence produced by the parties, the Administrative Civil Judge, 1st Class, Gujrat, by judgment dated the 30th October 1961, dismissed the suit of the plaintiff. He held that the price of the land was fixed at Rs, 15,00 in good faith. That the vendees paid Rs, 13,000 to the vendor before the Sub-Registrar and the balance of Rs, 2,000 was paid by the vendees in redeeming the mortgage of the land. On issue No, 6, the trial Court held that it was abundantly proved from the evidence that the plaintiff had actively participated in negotiation for transaction of sale in dispute.
7. He was also present at the time of the execution and registration of the sale-deed and was estopped from bringing the suit. The respondent-plaintiff challenged in appeal the finding of the trial Court on issue No, 6 and also contended that ostensible price was neither fixed in good faith nor actually paid. The learned Additional District Judge, Gujrat in Civil Appeal No, 66 of 1961, by judgment dated the 20th July 1962, upheld the findings of the trial Court that the plaintiff had participated in negotiations for sale in dispute; that he gave his consent to the sale and was estopped from bringing the suit. He also upheld the finding of the trial Court that the price of Rs, 15,000 was fixed in good faith and had been actually paid. The matter was then taken before the High Court in the above-mentioned Regular Second Appeal. A learned Single Judge of the High Court, by judgment dated the 25th November 1966, reversed the concurrent finding of fact on issue No, 6 and decreed the plaintiff's suit for pre-emption. This judgment is being challenged in this appeal before us.
8. Special leave was granted in this case to consider the question whether in the circumstances of the present case, the High Court was justified in reversing the concurrent finding of fact of the Courts below.
9. In support of the appeal, Ch. Khalilur Rahman, learned counsel for the appellants, has contended that the learned Single Judge has made a legal error in upsetting the findings of fact by the Courts below. According to the learned counsel, the High Court has no jurisdiction to entertain second appeal on the ground of erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. In support of this contention, the learned counsel has relied on the case of Abdul Majeed and others v. Khalil Ahmad . He further relied on this point on the decisions in the cases of Sh. Muhammad Ikhlas and others v.
10. Muhammad Ismail , Pathana v. Mst. Wasai and another and The Midnapur Zemindari Co. Ltd. v.
11. Uma Charan Mandal and others . In order to appreciate the contention of the learned counsel, it is necessary to reproduce the reasoning of the learned Judge of the High Court which has persuaded him to reverse the concurrent finding of fact of the Courts below. In this connection, the learned Judge of the High Court has observed as under :-- "The unimpeachable evidence to which the learned Additional District Judge has referred, is the oral evidence of the witnesses noticed above. But he has "ignored" the two documents, Exh. P. 3 and Exh. D. 1 and his reason for doing so is hardly intelligible. On 3rd February 1958, the plaintiff had sent the notice Exh. P. 3 to the vendees to pre-empt the sale, but the learned Additional District Judge appears to be of the opinion that like most of the people, the plaintiff has changing mind and after having waived his right, he had turned round to file the suit. Of course that part of the argument may carry some sense. (But then in the next breath the learned Additional District Judge has remarked that the same was true about Exh. D. I what does he really mean by it? The only meaning that I can assign to it is that like the plaintiff, the vendees-defendants have also changed their mind. In their reply to the notice they offered to transfer the land to the pre-emptor for Rs, 22,000 (inclusive of the cost of the alleged improvements effected by them); provided his right of pre- emption was proved to be superior but later on they too changed their mind to contest the suit.
12. This would make the burden of proof all the more heaviour for the defendants. This is begging the whole question indeed. In the case the plaintiff had already waived off his right, then there was no occasion for the vendees to make this offer to the pre-emptor in reply to his notice. In it, there is no suggestion whatever to the effect that the plaintiff was debarred by his conduct from setting up his right of pre-emption to the land. The importance of this reply (Exh. D. 1) from the vendees is further enhanced when we find this was sent by Mr. Saeed Ahmad Zia, a learned Advocate of Gujrat, who is said to be in the know of the facts and has appeared as a witness (D. W. 1) for the defendants". All this would suggest that the plea of waiver now raised by the defendants against the plaintiff is an afterthought only. This is the only logical conclusion that can be drawn from the reply, Exh. D. 1, which the learned Additional District Judge has failed to consider properly. The observations of the learned Additional District Judge are highly illogical and unreasonable. The statement of Sh. Saeed Ahmad Zia, Advocate alone does not establish that the plaintiff had waived his right. His statement at best goes to raise an inference against the plaintiff. But Exh. D. 1 is sufficient to repel any such inference and in the face of this document it is impossible to accept the evidence of Fazal Hussain (D. W. 2) and defendant No, 1 in this respect. On this evidence there cannot be any two opinions."
13. It will thus be noticed that the learned Judge of the High Court has disbelieved the evidence of the appellants on the ground that in the reply to the notice, Exh. D. 1, they had not mentioned that the plaintiff has waived his right of pre-emption.
14. The learned counsel for the appellants has contended that the omission in the notice should have been put to the defendants in order to contradict their statement. In support of this contention he has relied on the cases of Firm Malik Des Raj Faqir Chand v. Firm piara Lal Aya Ram and others and Bal Gangadhar Tilak and others v. Shrinivas Pandit and others . On the other hand, the learned counsel for the respondent has contended that under section 21 of the Evidence Act, it is not necessary for the parties relying on an admission to put it to the other party in cross- examination such a document in order to contradict him. In support of proposition he has relied on the cases of Chandra Kanwar v. Chaudhry Narpat Singh , Raheem Bakhsh v.
15. Nathu Bibi and others , Ghulam Nabi Corporation Ltd. v. Khan Iftekhar Hussain Khan of Mamdot , Ajodhya Prasad Bhargava v. Bhawani Shankar Bhargava aid mother and Venkatlal1 2 3 4 5 6 7 8 9 10 Baldeoji Mahajan v. Kanhiyalal Jankidas and others . After going through these decisions I am of the view that the principle of law enunciated in the case of Firm Malik Des Raj Fakir Chand v. Firm Piara Lal Aya Ram and others lays down the correct law. In this case it was held as under :-- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was confronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admission contained in the previous statement cannot be used as legal evidence against that party."
16. This principle was also enunciated in the case of Bal Gangadhar Tilak and others v. Shrinivas Pandit and others. It was held in that case as under :-- "On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear."
17. In the present case, the learned Judge of the High Court has raised an adverse inference against the defendants in respect of the plea of estoppel and waiver on the basis of Exh. D. 1, in which the defendants had omitted to mention it. In my opinion, if the plaintiff wanted to raise any such inference against the appellants he should have given an opportunity to explain it to the defendants when they appeared in the witness-box. The mere fact that the defendants had offered to give the land in dispute to the respondent if he proves his superior right of pre-emption and pays Rs, 22,000 does not mean that the plea of the appellants on this question is an afterthought or not based on actual facts. Even in the case of Ajodhya Prasad Bhargava v. Bhawani Shankar Bhargava and another, it was held that where the statements relied on as admissions are ambiguous or vague, it is obligatory on the party who relies on them to draw in cross- examination the attention of opponent to the said statements before he can be permitted to use them for the purpose of contradicting the evidence on oath of the opponent. In the present case, there is no clear admission by the defendants. It is only a case of omission and, therefore, it was necessary for the plaintiff to draw in cross-examination the attention of the defendants to explain as to why they failed to mention about the alleged estoppel and waiver. Since the defendants in this case appeared as witnesses and Exh. D. 1 was not put to them in cross-examination for explanation, the learned Judge of the High Court was not justified in using this document for rejecting the oral evidence led by the defendants on the question of estoppel and waiver.
18. I have already discussed the oral evidence produced by the appellants in support of the plea of estoppel and waiver. In my opinion, the oral evidence produced by the appellants is reliable and trustworthy and the learned Single Judge was not justified to reject it only on the ground of omission of the plea of estoppel and waiver in Exh. D.
1. In law, he had no jurisdiction to reverse the concurrent finding of fact of the Courts below and by doing so he has fallen into an error. I would, therefore, set aside the order of the High Court and restore the judgments of the Courts below.
19. In the result, the appeal is allowed with costs.
20. HAMOODUR RAHMAN, C. J.--I agree. PLD 1955 SC 38 PLD 1963 SC 46611 1 2 PLD 1965 SC 134 AIR 1924 P C 187 AIR 1946 Lah. 65 AI R 1915 P C 7 I L R 29 All. 184 PLD 1951 Pesh. 61 PLD 1962 Lah, 370 AIR 1957 All. 1 AIR 1963 M P 155
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