This is appeal by Muhammad Hussain vendee who purchased land measuring 36 kanals 13 marlas from Mst. Sihat through registered sale-deed dated 29-4-1989 for a total consideration of Rs.6,000.
The land is situated in Mauza Bibipur Dhamar, Tehsil Ali Pur, District Muzaffargarh.The respondent filed a suit for pre-emption claiming superior right on the basis of relationship and as co-sharer.
The petitioner resisted the suit. The trial Court framed the following issues:-
(1) Whether the plaintiff has superior right of pre-emption (2)Whether the plaintiff has waived his right fore pre-emption.
(3) Whether Zari-Panjum was not deposited in full within time? If so, its effect?
(4) Relief.
2. The respondent produced copies of Pedigree Table (Shajra Nasab) for the year 1922/23 as P.1 and year 1966/67 as Exh.P.2 and closed the affirmative evidence. The appellant examined Ellahi Bakhsh as D.W.1 and himself appeared as D.W.2. Thereafter the respondent appeared as his own witness as P.W.1. The learned trial Court after hearing the arguments proceeded to answer the issue No.l in favour of the plaintiff/respondent while issue No.2 was decided in favour of the appellant/defendant and in view of the findings on issue No.2, the suit was dismissed vide judgment and decree dated 2-10-1971. The respondent filed an appeal in the Court of District Judge, Muzaffargarh, who reversed the findings on issue No.2, accepted the appeal and decreed the suit of the respondent vide judgment and decree dated 17-6-1972. It is this judgment and decree, which has been impugned by the appellant in this appeal.
3. The appeal was admitted to hearing and notice was issued to the respondent, who has entered appearance and contested the appeal. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent. The learned counsel for the appellant in support of the appeal raised following points:- Firstly, that the learned District Judge has proceeded on wrong basis while holding that a party must stand or fall on strength of his own case rather than the weakness of the opponent. It is maintained that the principle is that plaintiff should succeed on the strength of his own case and not weakness of the defendant. The learned counsel in this behalf has referred to Messrs P.K. Basak & Co. Ltd. Vs. Messrs Gossen & Co. Ltd. PLD 1957 Dacca 233. .
Secondly, that there is no provision in the Qanun-e-Shahadat as to the quantum of the evidence.
In this behalf learned counsel has referred to Article 17 of Qanun-e-Shahadat (section 134 of the Evidence Act). It is added that every witness is witness of truth unless his credit is shaken in the cross-examination or any material is brought on record as to his character etc. It is argued that Ellahi Bakhsh was a natural witness He was not an interested person by any means The respondent has failed to prove his relationship with the appellant.
Thirdly, that the learned District Judge has observed that there should be clear evidence to prove the plea of waiver. He has correctly referred to the principle but failed to attend to the evidence on record. It is added that it is the quality and not quantity which matters. Ellahi Bakhsh D.W.1 being one of the marginal witnesses of sale-deed Exh.D.l was the natural person, therefore, there should have been something brought on record as to his character or his interest to exclude his statement from consideration. It is maintained that issue No.2 was fully proved by the statements of D.W.1 and D.W.2 coupled with the statement on oath dated 15-10-1970 of the appellant. There existed sufficient evidence and the issue was rightly decided in favour of appellant by the trial Court, who had occasion to see the conduct and demeanour of the witnesses, therefore, he was in a better position to appreciate their evidence than the lower appellate Court; and Lastly, that issue No.l was wrongly decided by the trial Court while the lower appellate Court did not even formally confirm the findings of trial Court on this issue. It is argued that the documents Exhs.P.l and P.2 do not make any sense and oral evidence was absolutely essential to bring the contention of plaintiff home. On the other hand plaintiff has not stated a word about the relationship. It is added that document Ex.P.2 is doubtful as there is cutting/erasing of name of Muhammad Ahsan. The name of father of vendor is mentioned as Ahsan Muhammad in P.1 while in Exh.P.2, it is mentioned as Muhammad Ahsan.
4. On the other hand, the learned counsel for the respondent has argued that the appellant has failed to prove issue No.2 so much so the waiver was vaguely pleaded, there was no averments in the written statement as to payment of Lungi, therefore, in view of provisions of Order VIIf. Rule 2, the evidence could not have been led on this point and the evidence recorded cannot be read. It is added that the offer of the respondent as to the oath on Holy Book was onh in respect of the price paid for land and nothing beyond that, therefore. Remaining portion of the oath is irrelevant and cannot be considered. The learned counsel for the respondent has further argued that it is admitted position that the respondent did not sign in any capacity the sale-deed, therefore, the appellant should have at least secured a receipt for the payment made to the respondent as Lungi, but this was also not done. It is maintained that D.W.1 is not reliable person and the argument is concluded with the remarks that the fact that father of the respondent/plaintiff identified the parties at the time of registration is of no consequence.
5.The learned counsel for the respondent, on issue No.l has argued that the documents Exhs.P.l and P.2 are to be read together because they pertained to years 1922/23 and 1966/67. It is added that even D.W.1 has admitted that the vendor was aunt, of the plaintiff i.e. Cousin of the father of the plaintiff while the appellant in his statement as D.W.2 has simply shown fuck of knowledge as to the relationship. It is added that the appellant in preliminary objection No.3 has clearly asserted that right of pre-emption of the plaintiff has been destroyed and in any case when the appellant pleaded waiver of the right, it pre-suppose existence of superior right of pre-emption. It is concluded that even in para. 3 of Memo of present appeal; the relationship between the vendor and the plaintiff is admitted.
6. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record as well as relevant provisions of law and precedents. Now I take up the issue No.l as to superior righ first. The learned trial Court has decided issue in favour of the plaintiff without reference to Exhs.P.l and P.2. And I will say rightly because these documents are vague and incomplete. There is also cutting /erasing in one column of Exh.P.2. Above all plaintiff has said not a word to his statement as D.W.1 as to the relationship. There is no oral evidence to prove relationship between the vendor and the plaintiff. The learned counsel for the appellant rightly referred to the case of Tehmas Khan etc. v. Mst. Bastari PLD 1985 Pesh. 86 and Asad Ali Alvi v. Nazir PLD 1982 Lahore 358; to argue that the documents themselves will not prove any thing. In the case of Tehmas Khan, Fard Jamabandi and mutation were held to be insufficient to prove exclusive ownership over the land while in the case of Asad Ali Alvi, my learned brother A.S. Salami J, as my Lord at that time was, held as under:- "Neither he appeared in support of his plaint nor produced any evidence to substantiate his claim.
If the defendant-vendees had said, after the close of evidence by the respondent pre-emptor, that they want to walk out and the Court may decide the matter on the record as it is, the Court would have had no option but to dismiss the suits because there was no evidence produced by the respondent-pre-emptor in support of his claim. The sale-deed did not prove his claim. Rather it showed that the land dealt with was not pre-emptible according to the plaints of the respondent- pre-emptor."
7.The learned trial Court has decided the issue in favour of the pre-emptor on the basis of statement of D_W.2 while the parties themselves are silent on the point of relationship. The learned counsel for the respondent rightly pointed out that in view of preliminary objection No.3 and plea that the plaintiff was paid Rs.900 as Lungi, the appellant could not deny his superior right. The result is that I uphold the finding of learned trial Court on issue No.l in view of statement of D.W.1 and pleadings.
8. Now coming to the argument on the point of waiver. The learned counsel for the appellant has argued with reference to the judgment of the lower appellate Court that same proceeded on illegal basis which ultimately resulted in wrong decision. The lower appellate Court to start with, has observed, that a party must stand and fall on the strength of his own case rather than the weakness of case of his opponent. The learned counsel for the appellant in this behalf has referred to case of Messrs P.K. Basak & Co. Ltd. This does not support the arguments of the learned counsel for the appellant. In fact the learned counsel for the appellant has stated the same thing but in different phraseology. The gist of the argument and observation of the lower appellate Court is one and the same. The same was the principle upheld in the case relied by the learned counsel for the appellant. The relevant portion of the judgment reads as under:- "We cannot but deprecate this practice, rather frequent of late in the subordinate Courts, of allowing the plaintiff to succeed upon the weakness of his adversary's case. It must be remembered that the plaintiff's case must stand or fall upon its own strength."
The next objection in the series was that the law has not prescribed any number of witnesses required to prove, a particular fact. It is quality and not quantity which matters in answering whether a fact has been proved or not. It was added by the learned counsel for the appellant that every witness is to be believed true until and unless otherwise proved by cross-examination and other evidence on record. The learned counsel in this behalf has referred the Article 17 of the y Qanun-e-Shahadat. It is true that it is quality of the evidence and not quantity which matters.
9.Now reverting to the case in hand, the evidence to prove the issue No.2 is statement of D.W.1 Ellahi Bakhsh. His presence is admitted fact as he is a marginal witness of the sale-deed Exh.D.1. I have gone through his statement. The respondent has failed to bring anything on record in the cross- examination of this witness or his own statement to discard or exclude this statement. He has clearly stated that the respondent has received Rs.900 as Lungi. In the cross-examination he stated that plaintiff and his father came together and after completion of the sale-deed the plaintiff left. He has admitted the relationship of the plaintiff and the vendor. I am fully convinced after going through the statement that he is a truthful witness. He is 70 years old and belongs to a different caste than the appellant, and he has no axe to grind by making a false deposition. Then comes the statement of D.W.2, the appellant, who has fully corroborated the statement of D.W.1 and as against this, there is only the statement of respondent as P.W.1. It is clear from his cross- examination that he is not deposing correctly, truly and categorically but withholding the facts and is shaky, therefore, the same is of no C value. There is yet another fact which is of great significance and cannot be ignored while deciding issue No .2. The suit was fixed for replication for 15-10-1970, when the respondent/plaintiff offered that price quoted by appellant/defendant in statement on oath shall be accepted by him as correct. The appellant accepted this offer and stated on oath as under:- Thereafter, the issues were framed and matter was adjourned for evidence of the plaintiff. This statement is relevant for two purposes. Firstly, the objection of the learned counsel for the respondent that the payment of Lungi was not pleaded, therefore, the issue No.2 will not to be taken to cover this fact. The argument is misconceived for the reason that according to Order XIV, Rule 3, I) C.P.C. Issues are to be framed on the basis of pleadings, statements, documents' etc. The relevant portion reads as under:- "3. Materials, from which issues may be framed. The Court may frame the issues from all or any of the following materials:- (a)allegations, made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b)allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c)the contents of documents produced by either party."
This is complete answer to the objection of the learned counsel and the issue No-2 will be deemed to be comprehensive to cover all aspects of `waiver'. Moreover, according to Order VI Rule 2, C.P.C.
Material facts are to be stated in the pleadings and not evidence. This disposes of the objection of the learned counsel as to the framing of the issue and evidence on the point of payment of Lungi.
10. The other aspect of this statement on oath is that respondent himself by making the offer conceded the position that he reposes confidence in the appellant that whatever he states on oath, will be true and correct. The effect of this statement on oath cannot be washed away simply because it was made on a 1F point which was included in the offer. This is not all. The silence of respondent on this point, is also to be considered a fact against him. The respondent has failed to raise any objection and also make any counter-statement on oath, therefore, the statement on oath by the appellant has to be accepted. The respondent is now estopped by his own conduct to find fault with the same. This is not all. This statement was reiterated when the appellant appeared as D.W.2. The learned trial Court rightly did not take it as a special oath binding on the respondent and decided the suit forthwith on this oath, but its evidentiary value cannot be ignored. Specially in the face of the fact, that the respondent thereafter had opportunity to cross-examine the appellant. The respondent again wanted to have double standard as to veracity of the statement as in the case of D.W.1. He accepts one part and at the same time wants the other part of their statements to be ignored. This is not possible.
11. Now coming to the statement of D.W.1. The trial Court while deciding issue No.1 has mainly relied on his statement. The learned counsel for the respondent while meeting the arguments of the learned counsel for the appellant on issue No.1 heavily relied on this statement. This fact alone is sufficient to debar the respondent to turn round and raise the argument that no reliance can be placed on the statement of this witness. On the other hand his statement inspires confidence. It is clear and he has called a spade a spade. He has not tried to avoid reply to a question because the same was helpful to the plaintiff, therefore, he is to be believed.
12. The learned counsel for the appellant on point of waiver has referred to cases, Naseer Ahmad v.
Arshad Ahmad PLD 1984 SC 403; Muhammad Bakhsh v. Safdar Hussain and others 1986 SCMR 300 and Mian Shah Nawaz Khan v. Allah Ditta etc. 1982 CLC 1348. The relevant portion of judgment of the honourable Supreme Court in case of Naseer Ahmad reads as under:- "T It is universally accepted that pre-emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it, wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre-emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manifold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre- emption, which cannot but lead one to assume that there was collusion between the two We feel that such suits are very often mala fide because if the pre--emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend 20 years of his life in litigation and incur huge expenditure which was in many cases even more than the actual price of the land or the property at the time of- the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not, therefore, deserve relief through Court of law."
In case of Mian Shah Nawaz, in similar circumstances, this Court has held that the pre-emptor was estopped to bring the suit and appeal was allowed.
13. On the other hand the learned counsel for the respondent has referred to cases of Hassan Muhammad v. Abdul Hameed PLD 1982 Supreme Court 159, wherein it was held that waiver is a question of fact, therefore, concurrent findings of Courts below were maintained, Hakim Ali v. Fazla 1986 CLC 1183, where this Court held that waiver is to follow froth positive act and not from mere omissions to act unless there be a duty cast by law to act in a given way. In Ourban and 2 others v: Jam Fazal Karim 1985 CLC 1498. It was held that there should be clear evidence and mere presence is not sufficient. In this case the statements of D.Ws. Who were closely related to the vendees and interested to support them were not believed. Then he referred to Noor Muhammad v. Nazir 1985 CLC 480, where this Court has held that clear and cogent evidence has to be there on record to deprive a person of superior right of pre-emption, and lastly to the case of Muhammad Anwar and others v. Wall Muhammad PLD 1985 Lahore 489, where it was held by this Court that mere presence of pre-emptor does not amount to waiver.
In the case-law relied on by the learned counsel for the respondent, the principles of law have been laid down but the same are not attracted in the case in hand. Therefore, the same does not in any manner advance the plea of the respondent. The learned counsel has referred to case of Muhammad Shafi v. Rehmat Ali 1985 CLC 432 on the point of pleadings and framing of issues. This case is relevant on the point. I am dealing with at the moment. It was held in this case that rule of law as enunciated in precedent could not be applied in vaccum. The parties have to lay foundation of fact for its application. The relevant portion reads as under:- "Rule of law enunciated in the precedent above noted cannot be applied in a vaccum. After all before the application of law, a foundation of facts for its application has to be laid by a party invoking the said rule of law in its support."
15. The case in hand proceeds on distinguishable facts than the facts of cases relied on behalf of the respondent. It is not a case of the appellant that the respondent was only present but his case is that respondent charged him for not filing the suit for pre-emption coupled with the fact that he was on all occasions with his father, who was on fore-front in the transaction throughout. It is not mere presence of the appellant at the time of the transaction, but it was followed by positive act, which has been clearly pleaded and proved by the appellant. Therefore, the precedent referred to and cited by the learned counsel for the respondent does not help or advance his arguments in any manner on the point of waiver.
16. The result is that I accept this appeal, reverse the findings of the lower appellate Court on issue No.2 and restore the findings on this issue as well as the decree of the trial Court. The result is that the suit of the respondent remained dismissed with costs throughout.