IHSAN-UL-HAQ CHAUDHRY J.- The petitioners are vendees of one third portion each of House No.2084 situated in Mohallah Qasabpura outside Pak Gate, Multan. The same was purchased by them from one Allah Wassaya through registered sale deeds dated 18.8.1980 for a total consideration of Rs.10,000/- each. The petitioners are brothers and sister interset. The respondent filed 3 suits for possessions of the entire property exercising right of pre-emptioin. It was pleaded by the plaintiff-respondent that he being the owner of the contiguous house bearing No.2084, therefore. Had a superioir right of pre-emption. It was also asserted that custom of pre- emptioin is prevalent in Traf Ravi' outside Pak Gate, Multan, where the suit property is situated.
2. The petitioners resisted the suit on factual as well as legal plans. The petitioiners claimed that they have together spent a sum of one lac on the improvement of the property. The learned trial Court framed the following issues:-
1. Whether the suit is barred by the in view of preliminary objectioin No.1 of the written statement?
2. Whether the plaintiff has got no cause of actioin?
3. Whether the Custom of pre-emption prevails in the locality where the suit property is situated?
4. Whether the plaintiff is estopped by his conduct from instituting the suit?
5. Whether the suit is incorrectly valued for the purpose of Court fee and jurisdiction and the plaint does not bear the proper Court fee Stamp.
6. Whether the plaintiff has got a superior right of pre-emptioin?
7. Whether the sum of Rs.10,000/- was fixed in good faith or actually paid?
8. If the above issue is not proved what was the market value of the suit property at the the of the impugned sale?
9. Whether the vendee defendant has made any improvement on the suit property, if so, to what extent and what is its effect?
10. Whether the defendant is entitled to special costs, if so to what extent?
11. Relief.
3. The plaints in all the suits were almost indentieal. The same was position of the defence. The evidence led was also same in effect. The learned counsel for the petitioners addressed arguments before me in the case of Altaf Hussain because in that revision there was a distinguishing feature while all other points in all the three revisioins were common. Therefore, I am disposing of these revisions together through this judgment.
4. The parties led their respective evidence. The learned trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 23.6.1981. The petitioners impugned these judgements through 3 separate appeals before the District Judge,Multan, who entrusted the appeals for disposal to Add:District Judge, who dismissed the same vide judgment and decrees dated 7.11.1985. The petitioners feeding aggrie ved by the judgement and decrees of the Courts below decided to assail the same through present revision petitions. The revisioin petitions were admitted to regular hearing and notice was issued to the respondent.
5. I have heard the learned counsel for the petitioiners as well as the learned counsel for the respondent and gone through the record. The learned counsel for the petitioner raised the following points in support of the petitions:-
(i) Firstly, that the evidence was recorded in the connected case of Ghulam Shaukat Hussain and the same was copied verbatim in the suit against the petitioiner i.e. Altaf Hussain. Therefore, the whole proceedings are vitiated. The learned counsel for the petitioiner in support of the proposition convasscd has relied on following dicisions:-
(a) . ShAbdul Hamid Vs. Muhammad Siddique PLD 1981 Lahore 42. In this case the evidence was recorded in one ejectment petition and verbatim reproduced in the other petition. The District Judge allowed the appeal, set aside the eviction order and remanded the case for retrial. This order of remand was upheld by the High Court. In this case the reliance was placed on the case of Malik Aman Vs. Haji Muhammad Tufail PLD 1976 Lahore 1446.
(b) . Similarly, in case of Jehangir Vs.Rehmat Ali 1983 CLC 2483, the evidence was virtually copied from suit between the same parlies without their consent and the depositions were not signed by the Judge. It was held that it was major defect of jurisdictioinal nature. In this case the appeal was allowed by Ad:District Judge and the case was remanded to the trial Court.
(ii) . Secondly, the Courts below did not appreciate that the plaintiff has failed to prove superior right and that custom of pre-emption was not prevalent in the Sub-divisioin where the property in dispute is situated since 1905. It is added that under section 7 of the Punjab Pre-emption Act 1913, it was the duty of the plaintiff to prove the custom of pre-emption in the Sub-division. In this behalf the learned counsel for the petitioner has refered to the case of Ram Lai Vs. Muncipal Committee Bhera AIR 1947 page 396, Amar Nath Vs.Hakim Rae 117 I.C. 1939, Hakim R.I Vs. Amar Nath and another AIR 1930 Lahore 528, Lala Diwan Chand Vs. Nizam Din and others 75 I.C. Page 610, Lai Chand Vs. Kartar Sing and another AIR 1947 Lahore 265, Fazal Karim Vs.Muhammad Afzal and others!982 SCMR 997, Muhammad Din Vs Sh.Faqir Muhammad PLD 1987 Lahore, 205, Muhammad Jamil Vs. Muhammad Sharif 1985 CLC 2353.
(iii) . Thirdly, that the petitioners have been wrongly and illegally deprived of compensation for the improvements in the property carried out by them.
(iv) . Fourthly, that the lower appellate Court dismissed the appeal through a slip-shod judgment without discussing the evidence. It is added that in all the three appeals he wrote one judgment. It is, therefore, urged that the decisioin is liable to be set-aside and cases should be remanded to the appellate Court for decisioin in accordance with law.
6. On the other hand, the learned counsel for the respondent has argued that there is no force in the contention that since evidence has been recorded in one case and copied out in the other suit, therefore, the revisioin should be allowed and case remanded to the trial Court. It is argued that the petitioner not only failed to raise objcctioin during the trial but also failed to take this as a ground in the memo of appeal before the District Judge. It is added that even this ground was not incorporated in the original revision petition. The same was for the first the raised afterwards through addilioinal grounds of revision. It is emphasised that this is sufficient proof of the fact that no prejudice has been caused to the said 2 petitioners and in any case the petitioners shall be deemed to have waived the objection and now is estopped to riase this controversy at this late stage. The learned counsel for the respondent in support of his arguments has placed reliance on the following judgments: -
(i) Sh.Abdul Sattar Vs. Malik Muhammad Afzal and others PLJ 1985 SC 194. In this case the evidence was recorded in other case and was read in the case of the petitioner as well.
The Hon'ble Supreme Court held as under:- "The contention raised before us with regard to the order of the Rent Controller being bad for not recording the evidence in the present case separately is entirely misplaced. As observed already, in these proceedings, all that is expected from the Rent Controller is that he should at fairly and before passing final orders in the case afford the parties a reasonable opportunity to defend their respective view, but he is otherwise not tramellcd by having to follow any express from of procedure."
(ii) .Muhammad Yousaf Vs. Fazal Karim etc,NLR 1985 Civil 101. In this case the evidence was recorded in 13 ejectment petitions simultaneously. High Court held that it cannot be made a ground to impugn eviction order in cases where I he evidence was recorded simultaneously with the consent of th. Arties.
(iii) . Similarly, in the case of Sh.Muhamad Ashraf Vs. Sh.Muhammad Alam PLU 1981 Lahore 135. Mr. Justice Aftab Hussain held that procedure of recording evidence in one case and copying in the other cases adolpted with the consent of the parties. The objection to the procedure is unfounded.
(iv) .Muhammad Ishaque Vs. Akhtar H.Ghori (1983 CLC 3290)_. There were three ejectment petitions. The evidence was recorded in one petition and transferred to the other to petitions. It was held that no prejudice was caused to the tenant.
7. The sum and substance of the arguments of the learned counsel for the respondent is that petitioner having failed to object in the trial Court and raise the point in the appeal before the District Judge, has waived the right to object to the procedure. On the other hand, learned can nsel for the petitioiner has argued that the defect is not procedural but of jurisdictional nature.
Therefore, there cannot be a waiver or estoippal against the statute.
8. Now I take up the first point as it arises only in the revisioins of Altaf Husain and Ghulam Shukat Hussain. I may observed in the very out set that all the cases relied ues upon by the learned counsel for the respondent are rent matters and in all the cases the procedure was adopted with the consent of parties. This does not advance the proposition of the learned councel for the respondent because in the rent matter there is no set procedure to be followed by the Rent Controller. He can follow any legal procedure which does not offend against the principles of natural justice. The same remarks apply to case of Malik Aman and Sh. Abdul Hamid cited by on behalf of the petitioners while in the case of Jehangir learned Judge has not taken into consideratioin S.99 CPC as well as view of Hon'ble Supreme Court in case of Muhammad Aslam etc. I, therefore, respectfuly differ with this view.
5. I have given my anxious considerations to the arguments advanced on both sides and before proceeding any further, I would like to refer to section 99 of the C.P.C. Which reads as unden- "No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court".
6. It is admitted position that the petitioner never raised little finger to the procedure adopted by the trial Court. The deposition of the witnesses in both the cases were duly signed by the presiding Officer. The learned counsel for the parties, also, at the conclusion of their evidence made statements, which to were signed by them. These signatures clearly prove their consent to the procedure adopted by the Civil Judge. The learned councel for the petitioners has failed to point out any prejudice caused by this irregularity of procedure to his clients. I am of the considered opinion that is merely an irregularity of procedure and not of jurisdictional nature. The same is covered by provisions of section 99 C.P.C. I am fortified in my view by the decision of Hon'ble Supreme Court in the following cases:- Muhammad Aslam and other Vs. Imam Bakhsh and to others 1980 SCMR 879.
"He submitted that evidence was recorded only in one suit, and copies of the statements of the witnesses were then placed in the other to suits after initials of the learned civil Judge. He sflbmitted that each suit should have been separately tried the evidence in each suit should have been independently recordedl the witnesses in each case should have been separately examined three times, and the consolidtion of evidence in one file in the manner above explained wal all illegal. The contention raised has no merit. The trial continued for a period of about three years, and during all that long period no objection of the present kind was raised before the learned civil Judge. This implies that the aforesaid was adopted with the consent of the parties who were duly represented by their respective counsel. The point was not raised cither in the memorandum of appeal or at the the of arguments before the learned Additional District Judge and in these circumstances the High Court refused toattach any importance to the same".
(ii) . Chief Engineer building dept. Vs. M/s Pakistan National Construction 1988 SCMR. 723 The relevant portion reads as under:- " It seems to us that the view taken by the learned Single Judge is more in consonance with reason and law. The learned Judge following an earlier decision of the same Court reported as Messrs Habib & Sons v. Messrs Virak & Co. PLD 1957 Karachi 245, pointed out that there was a distinction between "want of jurisdiction and irregular exercise or assumption of jurisdiction." The importance of this distinction according to the view taken by the learned Judge,lay in the legal consequences flowed from such states in the domain of jurisdictioin. An inherent want of jurisdiction results in vitiating the proceedings taken by the Tribunal and is incurable notwithstanding Waiver by conduct or otherwise, whereas an irregular assumption of jurisdiction as always subject to Waiver.
A defect in the nomination of the Arbitrator, according to the view taken, was curable by waiver by the party going before the Arbitrator and taking the chance of a fabourable decision without raising protest.
11. Now I take up the remaining points which are common in all the three revisions.
12. The learned counsel for the petitioner on merits raised to fold arguments. It was contended that the house of the pre-emptor is not contiguous and in any case the plaintiff-pre-emptor has failed to prove that there was custom of pre-emption prevalent in the Sub-division where the suit property is situated. The argument in hutshell was that the custom was to be proved in each sub- division and onus of poof heavily lay on the plaintiff- respondent.
13. The learned counsel for the respondent, on the other hand explained that the property of his client is shown contiguous to the suit property even in the sale deed Ex.D.I.Even otherwise, the petitioners have admitted that the house of respondent is contiguous to the house in dispute but pleaded that once upon a the there was a street in between the to properties. The petitioners in order to prove the street has placed on record, a copy of the sale deed Ex.D.2. This sale deed is dated 16.5.1944.
14. I have gone through the sale deed. It is clearly mentioned that the street was covered and led to the house. There is nothing on record to show that it was a public street. It is also admitted on record that the same is now part of the house of the respondent and no-body has thrown a challenge to this occupation of the said street by the respondent. The admitted position is that this street had been annexed to his house by the respondent.
15. I am not concerned here about the taking-over of the street and nature of the street. The fact remained that when the property was purchased by the petitioner, the house of the respondent was contiguous to this property.
16. Now coming to the second part of argument that the plaintiff has failed to prove the existence of custom in the sub-division. There is no cavil with the legal proposition. The learned counsel for the petitioner toiled-hard to canvass this legal proposition, which is otherwise established law but failed to make out a case on facts attracting the legal proposition.
17. On the other hand, the learned counsel for the respondent has referred to statement of Muhammad Ameer,PW1 and judgments Ex.PW3 and PW5 in addition to referring to the 85 PR 1907 and 100 PR 1906. Both the lower Courts have referred to these judgments to answer the issue No.3 in affirmative. The learned counsel for the respondent concluded his arguments with the remarks that it is not a legal question but it is a question of fact which stands closed with concurrent findings of the Courts below.
18. I have given my deep appreciation to the arguments and counter arguments. The respondent- prc-cmplor has proved the existence of custom by Ex.P.3 and Ex.P.5. It is not out of place to mention here that according to PW1 the property is situated in Ward No.7 and judgment Ex.P.5 also pertained to the same locality. This judgment is dated 7th of Novcmnber,1977. On the other hand, the petitioners have led no evidence, whatsoever, to rebut the evidence on issue No.3 and to establish that no such custom was ever in existence I, therefore, hold that the Courts below have rightly decided this issue in the affirmative.
19. The learned counsel for the petitioner, further attacked the finding of the Courts below on the issue of improvement. It was argued that the petitioners got possession of the house through their father in 1973 and thereafter their father spent Rs.One lac on the rccqnstruclion of the house, which was in a delipated condition. Therefore, each of the petitioner was entitled to payment of l/3rd of this amount. It is admitted that no plan was sanctiioned and that this construction was made during the period from 1973 to 1976.
20. The learned counsel for the respondent has argued that l lie petitioner alongwith the written statement produced receipt dated 2.11.1980, issued by one Riaz Hussain, Constructor, who allcqcdly made the construction but neither this receipt was proved nor said Riaz Hussain was examined. On the other hand, DW1 has stated in his cross-examination that the house was constructed by mason by the name of Abdul Karim/Karimullah. Even this mason was not produced. This is sufficient to disbelieve the story of improvement. It is added that it is a question of fact, which has been determined by the concurrent findings of Courts below. Ther is nothing wrong with the counter arguments of the learned counsel for the respondent.
21. The plea of improvement is otherwise irrelevant for the reason that the suit property was purchased by the petitioner through sale deed dated 18.8.1980 while said improvements were cffcclrcd during the period, as already noted, from 1973 to 1976 by his father. A vendee is only entitled to be compensated for the improvements effected by him from date of sale and upto the of notice from pre-emptor. Therefore, the vendee could not be compensated for any amount spent prior to acquisition of the property. The improvement must be made as vendee and conversely speaking must have been effected after the acquisition of title. The claim for improvement is liable to be rejected on this short ground.
22. Now I take up the last point raised by the learned counsel for the petitioners in support of the revision petitions. I have gone through the judgment of Addl: District Judge, who has dealth with all the questions elaborately with reference to the evidence and the rulings cited by the parties. The objection to the judgment is absolutely misconceived and against the record. It is relevant to mention here that the points noted at No.2 and 3 only were agitated before the lower appellate Court, who has-laboured hard to render a comprehensive and speaking judgment.
23. The result is that I do not find any merit in these revision petitions The same arc dismissed with costs.