1. ' This is an appeal under section 100 of Civil Procedure Code by the defendants from a decision of the Additional District Judge of Sialkot, confirming a decree of the trial Court at Daska by which it had decreed the pre-emption suit in favour of the plaintiff on 20-1-1979.
2. ' Relevant facts for the purposes of second appeal are briefly these: 24 Kanals, 2 Marlas of agricultural land comprised in Khasra Nos.844, 845, 846, 856 and 1062, situate at Muaza Sandhanwala, in Tehsil Daska belonged to Mst. Nawab Bibi. On 12-2-1975, Muhammad Sadiq, Khan Muhammad, Sultan Muhammad, Noor Muhammad sons of Ali Muhammad and Allah Ditta son of Hashim Din instituted a civil suit in the Civil Court at Daska against Mst. Nawab Bibi to recover possession of above piece of land on the basis of its prior sale in their favour upon payment of Rs,30,000 to the vendor. On 8-3-1975, Mst. Nawab Bibi entered appearance in Court and by filing confessional written statement admitted the claim of the plaintiffs' as set forth in the plaint. She also separately admitted the plaintiffs' claim by making a statement in Court on the same day. Thereupon, the trial Court decreed the suit for possession of the land in dispute in favour of the plaintiffs, now defendants in the pre-emption suit.
3. ' On 5-3-1976, Faqir Muhammad as plaintiff, claiming to be a real brother of Mst. Nawab Bibi and a co-sharer in the land transferred by her, claimed pre-emption and filed a pre-emption suit against the vendeesdefendants.
4. ' Defendants submitted defence and resisted the pre-emption suit filed against them. It was pleaded that the suit was hit by rule of partial preemption; that plaintiff was a party to, and, instrumental in the sale and as such was estopped to pre-empt it; that valuation of the suit was under-assessed, and, less amount of court-fee was paid on the plaint; that the suit was barred by limitation; that the land in dispute was not correctly described in the plaint of the pre-emption suit; that plaintiff was not possessed of a better right of preemption and further, the defendants were in occupation of the land in dispute as non-occupancy tenants, at the time of its sale in their favour and, therefore, their right was superior to all.
5. ' On 20-7-1976, trial Court proceeded to frame following issues for determination:-
(1) Whether the suit is for partial pre-emption? OPD
(2) Whether the plaintiff is estopped by his conduct and act to bring the suit? OPD
(3) Whether the plaintiff had deliberately affixed less court-fee on the plaint, if so, its effect? OPD
(4) On proof of issue No,3, what is the correct valuation? OP. Parties.
(5) Whether the plaintiff has superior right of pre-emption? OPP
(6) Whether Rs,30,000 were bona fide fixed as sale price of the land? OPD.
(7) What was the market value of the suit land at the time of sale? OP Parties.
(8) Relief.
6. ' In support of issues, onus of proof of which lay upon him, the plaintiff recorded his own statement as P.W.1 and produced Riasat Ali, Naib-office Qanungo P.W.2 and tendered in evidence certified copy of Register Haqdaran Zameen for the year 1969-70 Exh.P.1, pedigree-table Exh. P.2, statement of annual net-profits Exhs.P.3, P.4 and closed his affirmative evidence. Thereupon, defendants entered upon their defence. One of the defendants, namely, Muhammad Sidiq entered witness-box first and led defence evidence. In his statement as D.W.1, he deposed in his examination-in-chief that at the time of sale, the land in dispute was in his self-cultivatory possession as non- occupancy tenant. In cross-examination, he conceded that vendor is real sister of the plaintiff and the land in dispute was taken through a decree of the Court which was for its possession, but denied the suggestion that he did not cultivate the land in dispute as its tenant. Akbar Ali D.W.2, resident of Rajab, presumably a neighbouring village, deposed that vendees occupied the land in dispute as tenants at the time of its sale in their favour. He admitted that he was their neighbour.
7. D.W.3 deposed that defendants cultivated the land since a year prior to sale and before entering upon his cultivation, vendor's husband used to cultivate the land. Witness is a relation of defendants. Allah Ditta, one of the defendants, also appeared as D.W.4 to depose that possession on the land had preceded the sale. In addition to parol evidence, copy of the decree-sheet Exh.D.1, statement of the vendor in the suit Exh.D.2, and, extract from Register Khasra Girdawri Exh.D.3 were tendered in evidence and the evidence of the defendants was closed. Thereafter, plaintiff gave statement that he shall not give any evidence in rebuttal.
8. ' Upon appraisal of above evidence, the trial Court held that the suit was not defective for partial pre-emption; estoppel was not established; required court-fee was paid on the plaint; that the sale was made for Rs,30,000 and thus finding on issue of market value was not required to be made; defendants did not possess the land in dispute as its non-occupancy tenants, at the time of sale and the plaintiff as brother of the vendor had better right of pre-emption. Consequently, it decreed the suit in favour of the plainitiff on his paying Rs,30,000 as price of the land in dispute to the defendants by or before 25-2-1979, vide its judgment dated 20-1-1979. Against the judgment and decree of the trial Court, both sides appealed; plaintiff for reduction of sale price and the defendants for dismissal of the pre-emption suit outright by recognizing their tenancy rights on the land at the time of its sale to them. By a common judgment both the appeals were dismissed on 21-5-1983 by Additional District Judge. Plaintiff did not agitate against this judgment further, but the defendants preferred an appeal to this Court and questioned the finding on issue No,5. Their appeal was admitted to hearing on 29-4-1985.
9. ' So, seen from the above, central point for decision in the appeal would be, whether the land in dispute at the time of its sale was comprised in the tenancy of the appellants, if that is established, appellants shall succeed. Conversely, the appeal is doomed to failure.
10. ' At the hearing, Syed Riaz-ul-Hassan Gilani, Advocate, learned counsel for appellants urged two substantial points for consideration of the Court. First point related to the omission of the lower Appellate Court to independently examine the record and give its judgment on merits and second that on record, there was sufficient evidence to prove that appellants occupied the land in dispute as non-occupancy tenants at the time of sale in their favour. Acceptance of the first point may entail remand to the lower Appellate Court for examination of the records afresh for giving fresh finding on superior right of pre-emption and acceptance of second point may lead to dismissal of preemption suit. To some extent criticism of the judgment rendered by the lower Appellate Court on the ground of its failure to discuss evidence available on record for agreeing with the trial Court is true and, in my opinion, it was clear duty of the. First Appellate Court to have made a proper appraisement of the evidence on record for adjudicating the question of tenancy. But this omission alone will not entitle the appellants to succeed for a remand for rehearing of the appeal. To avoid remitting of the case again to the lower Appellate Court and with an object to arrest further prolongation of the final decision in the dispute brought to the Court in March, 1976, I have decided to look into the record myself so as to see whether any error was committed in regard to its reading and miscarriage of justice, has takan place?. Upon its thorough search and critical analysis, I must confess, I have not been able to discover any fault with the result reached in the impugned judgments, though their reasoning and discussion may not look that satisfactory as was expected of them by learned counsel for the appellants. As said above, sale was brought about through a Court decree passed on consent of the vendor. Certified copy of the plaint in the suit filed for possession by the appellants against the vendor Mst. Nawab Bibi, though placed on file by them, was Not tendered in evidence, and, marked exhibit by either party. Similarly, written statement submitted by Mst. Nawab Bibi in the suit conceding to the claim of the plaintiff was Not brought on file. Suit was instituted on 12-2-1975, and, decreed without contest on 8-3-1975. Pre- emption suit was instituted, on 5-3-1976. In column No,3 of the Jamabandi Exh.P.1, Mst. Nawab Bibi was recorded as owner of the land in dispute and column 4 of the Jamabandi relating to cultivation was shown vacant. Exh. D.3, a copy from Register Khasra Girdawri recorded for the first time, possession of the appellants as tenants of Mst. Nawab Bibi, in crop--Rabi 1975 Noted on 6-3- 1975, on the basis of an order of Settlement Officer passed on 14-7- 1976, for correction of entries in Khasra Girdawri. Prior to Rabi 1975, Khasra Girdawri showed possession of Muhammad Siddiq-- husband of the vendor. Neither copy of the application addressed to Settlement Officer for correction of entries in Khasra Girdawri Nor the order made by him on it on 14-7-1976 has been made part of record. In absence of it, contents of the application, who, when, and, how the application was made, nature of inquiry conducted by the Settlement Officer and the persons associated in it were the important factors withheld from the Court. Therefore, much weight could Not be given to the solitary entry in the Khasra Girdawri based on the order of the Settlement Officer. Reasons for its withholding from the Court were Not forthcoming on the record. Obviously, the appellants were cognizant of its existence and were expected to rely on it in support of the tenancy rights. As for pre-emptor, he was Not associated with its making. His pre-emption suit was proceeding to trial in the Civil Court. Any order made by an outside agency for showing appellants as tenants on the land in dispute retrospectively would hit at his right and could Not have been passed without hearing him. Parallel proceedings for correction of revenue records when the matter was sub judice in the Civil Court and the material sought to be produced before the Revenue Authorities could also have been placed before the Civil Court for its adjudication I am afraid, may be a questionable affair losing much of its evidentiary value. Further, omission to produce copy of the order of the Settlement Officer raised a clear adverse inference against the appellants. Independent of that order, the entry in Khasra Girdawri based on it had little evidential value. Certified copy of the plaint was placed on the trial Court's file by the appellants but the same was Not put in evidence formally and marked exhibit. This document having been placed on record by the appellants themselves was admissible in evidence and could be looked into by the Court for seeing through the matter. For taking this document in consideration without admitting it in additional evidence, I get support from the decision in Nathe Khan. v. Mst. Rahmat Bibi and others PLD 1961 (W.P.) Baghdad-ul-Jadid 96. The plaint in the suit for possession in which consent decree was passed later, makes an interesting reading and gave some cue as to how the sale of the land in dispute was brought about between the appellants and Mst. Nawab Bibi. The plaint was written on stamp-papers worth 135 rupees. It stated that Mst. Nawab Bibi had, a year before filing of the suit, agreed to sell the land in dispute to them for a consideration of Rs,30,000 received by her, and, undertook to get the mutation of names effected in revenue records and deliver possession of the land to them, but about three weeks ago had declined to perform the above acts. These allegations were admitted by Mst. Nawab Bibi and a consent decree was passed in the suit on 8-3- 1975. Though the decree of the Court was for recovery of possession of the land-in-dispute, there is No indication about any step taken for its execution through Court for mutation of names in revenue records. Further, mutation attested if any, was Not brought on record. Payment of consideration was also oral. There was No writing obtained from the vendor in this behalf. It also looks strange that though entire consideration was paid orally a year before filing of the suit, yet there is No sure evidence that possession, either actual or constructive was taken under the sale.
11. Possession, as tenants of the appellants on the land in dispute, was recorded in the Khasra Girdawri, two days before the consent decree was made on 8-3-1975. Onus of proof to establish tenancy lay heavily upon the appellants, who gave them the land on tenancy, and, when, were open questions which did Not receive satisfactory answers on the present record. In my opinion, appellants clearly failed to establish their tenancy rights on the land-in-dispute at the time of sale in their favour. Oral evidence given by them was Not convincing and was rightly disbelieved in the Courts below. In this view of the record, second appeal is properly concluded by finding on a question of fact, which is Not susceptible to a further review for interference by this Court. At the end, I may take Note of a preliminary objection raised on behalf of the respondent about the competence of second appeal. It was submitted by the respondent's learned counsel that in terms of section 102(2), Civil Procedure Code, second appeal did Not lie. Even so, the appeal could be treated and heard as a civil revision and there was No bar to adopting that course by this Court.
12. Since the matter failed on merits, Nothing turned on the preliminary objection. In view of the aforesaid, appeal is dismissed with No order as to its costs. Records be returned.