This second appeal under section 100, C.P.C. Was directed against the judgment and decree, dated 26-5-1985 of the learned Additional District Judge, Gujrat, whereby the judgment and decree, dated 21-10-1974 of the learned trial Court dismissing the suit was set aside and the suit for possession through pre---emption filed by the respondent was decreed on payment of Rs.2,600.
2. The facts necessary for the disposal of this appeal are that the suit for possession through pre- emption filed by the respondent/plaintiff was resisted on the assertion that the plaintiff stands estopped to bring the suit as he had waived his right of pre-emption. This led to the framing of issue No.4 as under:-- "Whether the plaintiff is estopped to bring this suit by his conduct?
The other pleadings and issues framed need not be mentioned as the findings returned on these issues are no longer in dispute.
3. The appellant/vendee in order to discharge the onus of issue No.4 relied on the writing Exh.D.1, whereby Allah Ditta, respondent/plaintiff had purportedly agreed not to pre-empt the sale in question. In order to prove the execution of document, Exh.D.1, the appellant produced Fazal Elahi (D.W.1), the scribe, Qadar Dad (D.W.2), the attesting witness. Muhammad Afzal (D.W.3) was also produced as' he was statedly present at the time of execution of document; Exh.D.1. Muhammad Aslam, appellant/vendee also appeared as D.W.4 in support of his case. Mumtaz A.I Shah, D.S.P./Finger Print Expert of Finger Prints Bureau was also produced. In rebuttal, respondent/plaintiff appeared himself as ?.W.1 and in support of his denial of execution of document Exh.D.1 produced, A.R. Pasha, Handwriting Expert (P.W.2). The learned trial Court relying on the evidence produced by the appellant/vendee decided issue No.4 in favour of the appellant/defendant and accordingly dismissed the suit. On appeal, this finding was reversed by the learned first appellate Court and resultantly, the suit was decreed.
4. I have gone through both the judgments of the learned Courts below as well as the evidence on record. The learned first appellate Court discarded the oral evidence observing that the witnesses were not sure about the facts they were deposing as they were hot sure as to who had the pen with which the document Exh.D.1 was scribed. It was further pointed out that Muhammad Afzal (D.W.3) being related witness, could not be trusted. The document Exh.D.1 was also not relied upon as the learned appellate Judge was of the view that the said document had not been put to Allah Ditta, the executant. The statement of Mumtaz A.I Shah (D.W.5) Finger Prints Expert was also discarded as he had not based his opinion on any relevant material. Mumtaz A.I Shah D.W. In his cross-- examination admitted that he had neither taken photos of the disputed thumb impression nor he remembered whether he had screened the disputed thumb impression. He did not give any reason in the report Exh.D.2 for recording the opinion that the disputed thumb impression resembles the admitted thumb --impression.
5. The reasons given for discarding the evidence of Finger Prints Expert (D.W.5) are cogent. The opinion of an Expert can be relied upon when the material on which it is based, is disclosed and the said material is shown to be relevant and sufficient to support the opinion given. This very criticism can also be levelled against the opinion of A.R. Pasha (P.W.2), the Handwriting Expert produced by the plaintiff/respondent. The two reports submitted by the Hand--writing Experts are as such of no avail. We are thus left with the oral evidence on record. It may be noted at this stage that the criticism of the learned first appellate Court that document Exh.D.1 was not put to Allah Ditta, is not correct. In cross-examination, Allah. Ditta denied the suggestion that he had thumb marked the document Exh.D.1 in the presence of the witnesses or that the thumb impression Exh.D.l/1 appearing on document Exh.D.1 was his thumb impression. From above, it is apparent that document Exh.D.1 was put to Allah Ditta, plaintiff/respondent. This document was sufficiently proved by the scribe namely Fazal Elahi (D.W.1) and Qadar Dad Lambardar (D.W.2). They are independent witnesses as nothing was brought on record to show as to why they were deposing against the respondent/plaintiff and in favour of the appellant. The mere fact that in the same breath, Qadar Dad (D.W.2) had corrected himself as to who had the pen at the time of writing the document, cannot form sufficient basis or reason for observing that Qadar Dad (D.W.2) or Fazal Elahi (D.1), the scribe were not sere about the facts, they were deposing. It is also pertinent to note that the sale of the land was made by a father-in-law m favour of his son-in---law. Had Allah Ditta not agreed to waive his right of pre-emption, Muhammad Aslam would have obtained the land as a gift in his name or in the name of his wife. Be that as it may, the factors mentioned by the learned first appellate Court for discarding the evidence of Fazal Elahi (D.W.1) and Qadar Dad (D.W.2) were not sufficient for reversing the findings returned by the learned trial Court.
6. As the evidence of the scribe and the attesting witness of the document. Exh.D.1 is consistent on salient points, I will prefer the view of the learned trial Court as it is based on evidence and good reasons. For the reasons given above, the judgment and decree of the learned first appellate Court, dated 26-5-1985 is hereby set aside with the result that the judgment and decree, dated 21-10-1974 of the learned trial Court shall stand restored. This appeal, therefore, succeeds. The parties arc, however, left to bear their own costs.
M.Y.M./M-1209/L revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.