1. The plaintiff brought a suit for pre-emption on the ground that he was collateral of the vendor, co- sharer in the suit property as also owner of the estate and that his right of pre-emption was superior to that of the vendee. Court of first instance believed his evidence and decreed the suit in his favour on 30-5-1985. On appeal by the vendee, learned Additional District Judge, on re- appraisal of evidence found against the pre-emptor and dismissed the suit. Plaintiff -pre-emptor has come up in revision to this Court. Facts necessary and relevant for the decision of this application in brief are: Suit property consisting of 3 Kanals 17 Marlas, comprised in Khewats Nos. 1 and 22 situated at Mouza Marri Danish-Mandan, Tehsil and District Rawalpindi, was purchased by Mst. Fazal Jan from Barkat Hussain, its previous owner, for Rs.16,000 on 6-12-1981, through a registered sale-deed. Qazi Mushtac Hussain, pre-empted the sale on the grounds enumerated above. Vended appeared, submitted written statement and contested the suit. It waE pleaded that vendee was a displaced person from Islamabad, and salE in his favour was exempted from the law of pre-emption; that the plaintiff by his words and conduct was estopped to sue; that the suit was barred by time. On merits, it was alleged that the suit property, was purchased for Rs.16,000. Right to pre-empt was also denied. Pleadings gave rise to the following issues: .
(1) Whether the suit is not maintainable against the defendant on the ground of being Islamabad affectee? O.P.D.
(2) Whether the plaintiff is estopped by his own act and conduct from filing this suit? O.P.D.
(3) Whether the suit is barred by time? O.P.D.
(4) Whether plaintiff has superior right of pre-emption? O.P.P.
(5) Whether Rs.16,000 was fixed and paid in good faith as a sale price of the suit land? O. P.P.
(6) Relief.
2. Plaintiff, apart from himself, relied on the statement of Subedar Ali Ahmad, P.W. 1, produced 'Naqsha Jhar Padawar' Exh. P.1, Gazette Notification, dated 15-6-1976, Mark 'A'. Copy of pedigree table Exh. P.
3. 2, Khasra extract Exh. P. 3, copy of Register 'Haqdaran Zamin', fore the year 1979-80, Exh. P. 4 and closed his affirmative evidence. In defence, along with Muhammad Razaaq, Mukhtar-e-Aam of the vendee, Barkat Hussain, vendor also appeared as witness. On this evidence--- learned Judge of the trial Court found for the pre-emptor and decreed) his suit. Issues 1 to 3 were not pressed before the trial Court and' were accordingly, found against the defendant. On issue No. 4, which was a pivotal issue in the civil suit, Court found that the grandfather of plaintiff and that of the vendor Barkat Hussain, were first cousins and, plaintiff, in order of succession was found to have superior right) of pre-emption. Sale price paid for the suit property was not disputed. In these circumstances, suit was decreed on payment of Rs.16,000 as the price paid for the suit property.
4. Vendee appealed and succeeded. On 15-12-1985, learned Additional District Judge found that evidence on record did not prove the relationship pleaded in support of right and after allowing the appeal dismissed the pre-emptor's suit. It appears, in course of the hearing of the first appeal, an application for leave to lead additional evidence in the shape of pedigree table was also moved) by Qazi Mushtaq Hussain, but it was not allowed. Against dismissal order of the pre-emption suit, plaintiff has come up to this Court in revision. It is contended for the petitioner that the Court of appeal did not read the record in its correct and true perspectives inasmuch as not only the plaintiff's evidence but that adduced by the defendant himself proved the relationship alleged by the plaintiff. Learned counsel referred to the testimony of Subedar Ali Ahmad, P.W. 1, statement of Qazi Mushtaq Hussain P.W. 2, Barkat Hussain vendor D.W. 1, to submit that the pleaded relationship was adequately proved. Learned counsel invited the Court to the statement of D.W. 2 to point out that in his statement relationship was neither expressly denied nor even by implication.
5. Defendant's attorney did not even think it proper to advert to the admission or denial of the superior right. His statement on the right of pre-emption is absolutely silent. It was also argued that apart from relationship, plaintiff had succeeded to establish that he was the co-sharer in the suit property and was also owner of the estate. Both these pleas were established but Courts below altogether omitted them from their consideration. Vendee being a total stranger, plaintiff was entitled to succeed and pre-emptor's defeat, on appeal, cannot be justified with reference to the record. Learned counsel also argued that the Court of appeal was erroneous in refusing leave for additional evidence. Proposed additional evidence consisted of certified copy of pedigree table.
6. Learned counsel submitted that the additional evidence was not only relevant but was also necessary for proper, correct and satisfactory decision of the controversy arising between the parties. Maulvi Sirajul Haq, learned counsel for the respondent addressed the Court, in defence of the impugned order, and argued that plaintiff in the absence of creditable evidence of an unimpeachable character had failed to prove his superior right. It was urged that very heavy onus was placed upon the pre-emptor which he had not succeeded to discharge. Mere oral statements of few witnesses, to support the alleged relationship, coupled with an admission of Barkat Hussain, vendor was quite inadequate material to find for the pre-emptor. As regards plaintiff being co- sharer, learned counsel argued, that as the plaintiff in his own statement had not referred to it, the Courts below were justified in ignoring it. In the absence of an express statement by the plaintiff in this behalf, entry in Exh. P. 4 could not be found to have been connected with the plaintiff. As for the ownership of the estate, learned counsel argued that no evidence was led in support thereof.
7. After hearing learned counsel and the examination of record, I find that this case requires a remit.
8. Assertion of suprior right proceeded on three grounds; (1) plaintiff was related to the vendor; (2) he was a co-sharer; (3) and was owner of the estate. Vendee denied the plaintiff's right to pre-empt.
9. In this state of pleadings, it was for the plaintiff to prove the grounds taken and it was then only that he could succeed. Plaintiff has adduced oral as well as documentary evidence. Subedar Ali Ahmed, deposed that Qazi Mushtaq Hussain was a close relation of Barkat Hussain vendor and that their grandfathers were cousins. In cross-examination, witness deposed that Niaz Ali was grandfather of Barkat Hussain vendor and name of the plaintiff's grandfather was Qazi Nadir. However, he confessed his ignorance about his ignorance about the names of grandfather of Qazi Nadar as also Niaz Ali. Witness further stated that he was a 7th decree collatoral of the plaintiff. Plaintiff himself as P.W. 2 stated that vendor was his cousin. He was, however, unable to tell the name of his great grandfather but deposed that the name of his grandfather was Niaz Khan. He also confessed his ignorance about the name of great grandfather of Barkat Hussain vendor. It may here be observed that plaintiff did not depose about his other two grounds which he had taken in the plaint i.e. That he was a co-sharer and owner of the estate. Apart from the oral evidence, plaintiff placed reliance on Exhs. P.1 to P.4. As against, this, defence consisted of statements of two witnesses i.e. Barkat Hussain, vendor D.W. 1, Muhammad Razzak son of the vendee and her general attorney, D.W.
2. As observed above, Barkat Hussain conceded that grandfather of the plaintiff was cousin of his own grandfather. Words spoken are D. W. 2 did not bother even to formally deny what hadt- already come on record. As regards pedigree table Exh. P. 2, it does not help the plaintiff. In the table, Barkat Hussain vendor is shown to be son of Said Hussain, whereas, Mushtaq Hussain was recorded as son of Fazal Hussain. Both Said Hussain and Fazal Hussain, are not inter se connected.
10. Exh. P. 3 is Khasra extract and is not relevant to the issue. In Exh. P. 4, copy of Jamabandi pertaining to suit property, Khewats Nos. 1 and 22 are recorded as jointly owned by Barkat Hussain along with others. In column 4 of the Jamabandi against Khatauni No. 48 of Khewat No. 22, Mushtaq Hussain, Safdar Hussain, Ashfaq Hussain, Ikhtiar Hussain along with some others are shown to be in possession as co-sharers. In Exh. P. 2, Mushtaq Hussain, Safdar Hussain, Ashfaq Hussain and Ikhtiar Hussain are shown to be brothers and are sons of Fazal Hussain. In this state of evidence, Court of first instance found that plaintiff was related to the vendor, and, in order of succession, was entitled to succeed and acquire suit property. Trial Judge, however, did not refer to the other pleas taken in support of superior right. On appeal, learned Additional District Judge found against the pre- emptor. Reading of the impugned judgment shows that learned appellate Judge did not take into consideration the admission of Barkat Hussain vendor wherein he had clearly conceded that plaintiff was related to him. Discussion was confined only to the statements of two P. Ws as also Exh. P.
2. As regards additional evidence learned appellate Judge observed "The learned counsel for the respondent has made the application today under Order XLI, rule 27, C.P.C., and has sought the permission to produce the additional evidence. It is strange that the decree is in favour of the respondent and the respondent himself feels that the evidence was not sufficient to decree the suit in his favour and so he has sought the permission for the production of the pedigree table under Order XLI, rule 27, C.P.C. In fact the respondent wants to fill up the lacunas of his suit. The pre- emption right is a very weak right and the pre-emptor cannot be allowed to deprive the vendee from-his right that accrued to him on account of his laches. There is no question of allowing the additional evidence to the respondent." I have carefully examined the facts of this case as also the evidence led by the parties. It is correct that the plaintiff in his own statement had not deposed that he was co-sharer in the suit property or that he was the owner of the estate. However, copy of Jamabandi pertaining to the suit property Exh. P. 4 shows Mushtaq Hussain along with Safdar Hussain, Ashfaq Hussain, Ikhtiar Hussain and some others as co-sharers. This entry is recorded in cultivation column of the Jamabandi. Column 3 which relates to ownership does not give the names of all the owners except Barkat Hussain, in Khewat No. 1 and Barkat Hussain along with Zamir Hussain in Khewat No. 22. Entries in annual record of rights attract presumption of truth and are an important piece of evidence. Plaintiff, in my opinion, was right in urging that despite omission in his statement, Court was obliged to consider the entries of Jamabandi and give its decision as to whether the plaintiff in the light of entries in revenue papers was a co-sharer or owner of the estate.
11. Exh. P. 4, an important document did not receive adequate attention of the Courts below. It is well- established proposition of law that the. Court is obliged to consider the evidence present on record, judge its value in the light of legal principles applicable thereto and then pronounce its final opinion. It is the result of the cumulative effect of evidence on the mind of the Court that finds expression in its final opinion. What effect Exh. P. 4 may have produced on the mind of the learned Judge, was a matter of guess mind and then find either way. I may also observe that the learned.
12. Appellate Judge has not addressed himself correctly to the prayer of additional evidence. In declining the prayer, in my opinion, the mind of the learned appellate Judge was to a large extent influenced by the nature of the right sought to be enforced. This impression is available from the order of learned Judge when he says that pre-emption is a weak right. With respects I do not subscribe to his view. It is not in dispute that in numerous decisions, pre-emption has been described as a right which created serious inroads on the right to a free disposition of immovable property. In my opinion, right is after all a right and so long as it has the blessings of the Legislature Courts have not to invent ways and means to defeat its enforcement. Pre-emption is like any other right and cannot be discriminated on artificial grounds. Nature of pre-emptive right was examined by Mr. Justice Muhammad Afzal Cheema, as his Lordship then was, in Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others PLD 1976 SC 572. Relevant observations are available at pages 578, 579 of the Report. An extract from the judgment of his Lordship shall surely help in understanding the nature of the right. It was observed:-- "Before coming to the interpretation of the word "sues", it may be observed with respect that once a right has been created or conferred by the statute, a good deal of sanctity attaches to its protection, preservation and enforcement, of course it has to be given effect strictly within the prescribed statutory limitations. With the utmost respect, I find myself unable to endorse the view that it is a weak right which could be readily defeated on grounds of technicalities as held in Allahabad authorities including AIR 1954 All.
94. Therefore, the enforcement of right of pre-emption as that of any other legal right is not to be frustrated on flimsy pretexts or untenable grounds and in my humble opinion, it would be absolutely wrong to draw any legal distinction between the right of pre-emption and any other legal right so as to relegate the former to an inferior position. I am fully conscious of the phraseology employed in certain authorities describing the right of pre- emption as piratical or. Predatory. But this apparently derogatory characterization is merely intended to highlight its rather unique feature of placing a curb on the freedom to sell one's property to party of one's choice. The restriction as stated earlier is based on salutary considerations of public policy and once recognised by law has to be fully respected.
13. Once this invidious distinction between the right of pre-emption and other legal rights is ignored bringing it completely at par with the latter, with this changed frame of mind the Courts would no longer be prone to seek pretext to frustrate the right of pre-emption on flimsy technicalities including the absolute condemnation and irremediable penalization of a plaintiff for the initial errors of joining a stranger on the basis of a bona fide mistake which under the C.P.C., has been made curable even at the last stage of appeal. But as stated earlier this argument would be only collaterally helpful, the crux of the matter being the correct interpretation of the word "sues".
14. In the earlier part of the judgment, his Lordship also observed that right of pre-emption had its genesis in Islam. Following observations of their Lordships of Supreme Court in Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289, at 313, 314 as regards right of pre- emption, are pertinent.
15. "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre-emption so as to have recourse to section 3 of Limitation Act instead of proper application of Order VII, rule 11 (b) and (c) or for that matter, sections 148 and 149, C.P.C., and section 28 of Court Fees Act, was the then prevailing notice that right of pre-emption was predatory. This view suffered considerable change in post-- partition period in Pakistan. One reason being that it was against Islamic jurisprudence wherein this is a right as much enforceable as any other right and further that it has a connection with the law of inheritance in Islam as was observed by Mahmood, J. In Gobind Dayal v. Inayatullah I L R 7 All. 775 at 782 as follows:-- "Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious usage or institution" within the meaning of section 24. I am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankie, J. I may observe that pre-emption is closely connected with the Muhammadan law of inheritance. That law was founded by the Prophet upon republican principles, at a time when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe."
16. This Court has also adopted the rule that a pre-emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta v. Muhammad Ali PLD 1972 SC 59 and Hadayat Ullah v. Murad Ali Khan PLD 1972 SC 69. Similarly, the approach in thisbehalf in a recent case Jan Muhammad v . Shukeruddin 1980 CLC 186, is to the same effect. Thus, it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter.
17. The law as it is, has to be applied without any such consideration. Otherwise, it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible."
18. Judged in the light of the aforenoticed statement of law, in my opinion, the approach of learned Judge to the prayer for additional evidence was not correct. Had the true nature and import of pre- emption right been properly appreciated the decision of the Court may have been different. As I propose to remand the case, I may not like to burden this judgment with decided cases to show as to what are the eventualities in which the Court of appeal can invoke its powers and grant leave for additional evidence under Order XLI, rule 27. Civil P.C. However, in passing, it may be observed that if on examination of the record as it stands, some inherent lacuna or defect, is discovered by the Court which hinders doing of complete justice between the parties, the Court may readily rely on its powers under Rule 27 of Order XLI, Civil P.C. The discretion given to the appellate Court by Order XLI, rule 27, to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in the rule. To my mind, first appeal has not been properly disposed of. In making the impugned decision, the learned Judge had altogether omitted from his consideration admission of Barkat Hussain D.W. 1 as also the statement of D.W. 2 wherein he had not denied plaintiff's superior right either expressly or by implication. With respects, the learned Court of appeal has not intelligently perused the record and in giving its decision had omitted from consideration some items of evidence possessed of probative value which may have affected the ultimate decision. One course open to this Court was to examine the evidence and decide the matter finally. Other course equally open was to direct a remit. I have decided to adopt the latter course which had its own advantages for the parties. District Court in hearing first appeal, was a final Court of fact. It is well established that when a Court or tribunal was vested with a jurisdiction, it is that Court or tribunal which has to exercise its jurisdiction and exercise of that jurisdiction by a higher Court or tribunal without allowing the former to exercise it, may not be a permissible course in law. For the above various reasons, I was inclined to disturb the impugned decision. Accordingly, decision under appeal, dated 15-12-1985, is set aside anal the case is remitted to learned District Judge, Rawalpindi, who may' either hear the appeal himself or entrust the same to any other competent. Court to hear it. Court of appeal is directed to record its fresh findings on issue No. 4 only and in so doing, it shall also consider whether in the facts and circumstances of the case, appellant can be allowed to lead additional evidence. Costs of this appeal shall be borne by the parties as incurred.