' This regular second appeal has arisen out of a suit brought by one Muhammad Din against the appellants, Anwar Baig and another, and respondent No.9, Agricultural Development Bank of Pakistan, Chunian Branch, for possession of certain land through pre-emption. The suit was resisted by the appellants inter alia on the ground that the said Muhammad Din was estopped from filing the suit. This plea, however,did not find favour with the Civil Judge who decided the suit, and the suit was decreed by him. Appellants went in appeal before an Additional District Judge, but in vain. Hence this second appeal.
2. The said Muhammad Din, who was plaintiff in the suit, has since died. Respondents Nos. 1 to 8 Mst.
Naziran Bibi and others, are his legal representatives.
3. The only finding of the learned lower Courts which was challenged before me is on the issue of estoppel. Assailing that finding it was submitted by learned counsel for the appellants that the learned lower Courts had omitted to consider material pieces of evidence on the question of estoppel. It was pointed out by him that according to five witnesses, namely, Chiragh (D.W.1), Muhammad Akram (D.W.2), Muhammad Hussain (D.W.3), Abdul Aziz (D.W.4) and Anwar Baig (D.W.5), examined by the appellants, the said Muhammad Din declined to buy the disputed land before it was purchased by them, but their evidence in this regard was not taken into account by either of the learned subordinate Courts.
4. It was contended by learned counsel for respondents Nos. 1 to 8, hereinafter referred to as the respondents, that since no notice under section 19 of the Punjab Pre-emption Act, 1913, was given by the appellants they could not succeed on the issue of estoppel. On the other hand, it was maintained by learned counsel for the appellants that the appellants were not debarred from raising the plea of estoppel due to their failure to give notice under section 19 of the said Act. In this connection, reliance was placed by him on Raja Pateshwari Partab Narain Singh and others v. Sita Ram and others (119 I.C. (1929) 627). In that case it was decided that where a person refuses to purchase land after full knowledge of its being sold, he is estopped from pre-empting its sale even though formal notice of the sale is not given to him. Learned counsel for the respondents did not cite any authority to the contrary. Therefore, with respect, relying on the law laid down in case of Raja Pateshwari Partab Narain Singh and others I repel the above plea of learned counsel for the respondents in regard to notice under section 19 of the said Act.
5. It was also urged by learned counsel for the appellants that since there was no documentary evidence on the issue of estoppel the said issue could not be answered in favour of the respondents on the basis of the oral evidence led by them. He did not refer to any law or authority to support his argument. According to the Evidence Act, 1872, which was holding the field at the time of the trial of the suit giving rise to this appeal, oral evidence as well as documentary evidence could be produced to prove any fact. This is evident from the following definition of the word 'evidence' as given in section 3 of the Evidence Act:- "Evidence means and includes--
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents produced for the inspection of the Court; such documents are called documentary evidence.
' It was nowhere laid down in the Evidence Act that a fact cannot be proved by oral evidence alone.
Statements of the witnesses examined by the parties to a suit are, therefore, as much evidence in the suit as the documents produced by them. The position is no different under the Qanun-e- Shahadat, 1984, which has taken the place of the Evidence Act. In clause (c) of section 2 of Qanun- e-Shahadat, the word 'evidence' has been defined as under:- "Evidence" includes --
(i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence.
' I am, therefore, unable to agree with learned counsel for the respondents that the issue of estoppel could not be proved by means of oral evidence only. To my mind, the said issue could be decided in favour of the appellants if their oral evidence thereon was strong and cogent.
6. It was deposed by the aforementioned five witnesses of the appellants that before buying the land in dispute appellants asked the owners of the estate, including the plaintiff (Muhammad Din), to purchase the said land but they declined to do so, saying that it was of inferior quality. Besides making statements to this effect, it was disclosed by them that after the filing of the suit also the appellants had been approaching the said Muhammad Din to withdraw the suit because before the appellants had purchased the disputed land, he had permitted them to buy it. Learned lower Courts took into account evidence relating to the appellants' efforts to prevail upon Muhammad Din to withdraw the suit but they omitted to consider their evidence in respect of his refusal to purchase the land in question before it was sold to the appellants which was, undoubtedly, of vital importance so far as the issue of estoppel was concerned. I, therefore, agree with learned counsel for the appellants that judgments of the learned lower Courts suffer from the defect of non- reading of material pieces of evidence.
7. Having found that the two Courts below had ignored evidence regarding refusal of Muhammad Din to purchase the land in dispute, I asked learned counsel for the parties whether they would like the suit to be remanded for fresh decision on the question of estoppel or they would prefer the matter to be finally decided by me. On this, it was submitted by them that they would like me to adjudicate upon the matter instead of sending back the same to the learned trial Court. I, therefore, allowed them to address arguments with reference to the entire evidence on the issue of estoppel, which they did.
8. As indicated above, it was stated, on solemn affirmation, by Chiragh (D.W.1), Muhammad Akram (D.W.2), Muhammad Hussain (D.W.3), Abdul Aziz (D.W.4) and Anwar Baig (D.W.5) that before purchasing the disputed land the appellants asked the owners of the estate, in which the said land is situate, to purchase it but they, including the plaintiff (Muhammad Din), declined to do so, as they felt that it was barren and unproductive. Anwar Baig (D.W.5) is one of the appellants but the other witnesses are independent ones in the sense that they are not related to the appellants or inimical towards the respondents or their predecessor-in-interest, namely, Muhammad Din.
Learned counsel for the respondents had also not been able to point out any material discrepancy in their evidence with regard to pre-sale conduct of the plaintiff (Muhammad Din). I am, therefore, inclined to rely on their testimony.
9. In rebuttal of the above evidence of the appellants there are the statements of Fazal Din (P.W.1), Anwar (P.W.2) and Muhammad Din (P.W.3). It was simply stated by them that Muhammad Din had no knowledge of the sale in question. This could be said by Muhammad Din (P.W.3) but not by his witnesses who could not possibly be with him, round the clock, for all the time during which the appellants were taking steps to purchase the disputed land. According to the evidence led by the appellants, Muhammad Din had declined to purchase the land in a punchayat which was attended by him and some other owners of the estate. When cross-examined, he did say that punchayat was not held but his two witnesses remained silent in the matter. Since his witnesses were examined after the appellants had adduced evidence, they (plaintiff's witnesses) should have said something about the punchayat. Their omission to do so indicates that they had not come forward to tell the whole story. In this view of the matter, the plaintiff's evidence does not cut much ice.
10. To sum up, the appellants' plea of estoppel stands substantiated by the depositions of as many as five witnesses examined by them. One of them is appellant before me but the other witnesses are disinterested and independent persons. It was not denied by learned counsel for the respondents that they had no enmity with the plaintiff (Muhammad Din) or the respondents, who are his predecessor-ininterest, nor they were in any way related to the appellants. In their statements, no material defect was pointed out by learned counsel for the respondents. I, therefore, feel that the appellants' evidence on the issue of estoppel is not only strong but also cogent and convincing. Evidence led by the respondents, in rebuttal, is of little consequence. In the circumstances, I hold that the appellants have succeeded in proving the issue of estoppel and, accordingly, it is decided in their favour.
11. In view of my above finding, the respondents' suit for pre-emption must fail, I, therefore, accept this second appeal, set aside the judgments and decrees passed by the learned lower Courts and dismiss the suit brought by Muhammad Din, predecessor-ininterest of the respondents. I, however, leave the parties to bear their own costs.