1. ' Points on which the decision of the instant civil revision turns on were two:--
(1) Whether the transaction was pre-emptible? And
(2) Whether the petitioner was possessed of a superior right of preemption.
2. ' Both these points were found against the petitioner by the lower appellate Court in disagreement with the trial Court which had decreed preemption suit in favour of the petitioner subject to payment of Rs,60,000 as sale price for the land in dispute.
3. ' Shera was owner of 66 Kanals, 4 Marlas of agricultural land at Mauza Kapuri in Tchsil Shorkot of District Jhang. On 15-10-1974, he agreed for its sale to Lal Khan. Shera died on 13-6-1978. By Mutation No,199, sanctioned on 30-9-1978, land owned by him was mutated in favour of his surviving heirs, namely Mst. Karim Bibi widow, Yasin, Feroze sons. Mst. Amiran Mai, Mst. Zaibun Mai, Mst. Khurshid Bibi, Mst. Muridan and Mst. Faizan daughters of Shera. On 3-12-1978, Lal Khan brought a civil suit for specific performance of agreement to sell respecting the land in dispute in his favour.
4. The suit was filed against the heirs of deceased Shera. On 22-1-1979, suit was decreed in his favour.
5. Pursuant to the decree of the Civil Court, sale-deed respecting the land in dispute was executed and formally registered on 22-1-1979.
6. ' On 20-1-1980, Altaf Hussain petitioner claimed pre-emption in respect of the above transaction concluded through the agency of the Civil Court on the ground of being collateral/Yakjaddi of the vendoRs, The price paid for the land was disputed in the plaint but at the trial the dispute about it was dropped.
7. ' Defendant resisted the suit. On 30-3-1980, the trial Court framed the following issues for determination:--
(1) Whether the valuation of the suit is incorrect for the purposes of court-fee and jurisdiction? If so, its effect? OPD
(2) Whether the sale in dispute is not pre-emptible in view of preliminary objection No,2? OPD
(3) Whether the plaintiff has got better right of pre-emption? OPP
(4) Whether Rs,60,000 were actually paid or fixed in good faith? OPD
(5) Market value? O.P.Parties.
(6) Relief.
8. ' After settlement of the above issues, the suit was posted for evidence of the parties. On 5-10-1980, learned Advocate for the petitioner tendered in evidence copy of the sale-deed Exh.P-1, extract from birth register pertaining to the petitioner Exh.P-2, copy of Mutation No,199 (two leaves) Exh.P-3, extract from register Khasra Girdawari Exh.P-4 and copy of Jamabandi for the land in dispute Exh.P-5 and closed affirmative evidence, except for the statement of the petitioner to be recorded in affirmative as well as in rebuttal after the close of defence evidence. Thereafter, the vendee/defendant entered upon his defence and gave evidence of two D.Ws. And recorded his own statement as D.W.3. In addition, copy of sale-deed Exh.D-1, copy of decree-sheet Exh.D-2, copy of agreement Exh.D-3, copy of plaint Exh.D-4 were produced and the evidence finally closed.
9. Thereupon, petitioner produced Gul Muhammad P.W.1, Muhammad Sharif P.W.2 and himself entered in the witness-box as P.W.3. Further, documents marked Exh.P-6 to Exh.P-11 were put in evidence and the evidence was closed.
10. ' Upon review of above evidence, the trial Court found that the transaction was pre-emptible and the petitioner had superior right of preemption regarding it. Issue No,1 was not pressed and sale price was admitted which rendered unnecessary the finding on issue No,5.
11. ' Aggrieved of the judgment and decree by the trial Court, the vendee-defendant preferred an appeal. As said above, it was allowed on 17-3-1985, by the lower appellate Court. It was held that neither the transaction was preemptible, nor, the petitioner had superior right of pre-emption. It was significant to notice that for holding that the transaction was not pre-emptible, lower appellate Court relied upon the case of Muhammad Wazir v. Chaudhri Jahangiri Mal and others, PLD 1949 Lahore 1 and surprisingly overlooked a Full Bench judgment of this Court, in case of Nur Ahmad and others v. Muhammad Ibrahim and another PLD 1953 Lahore 470, wherein, the case of Muhammad Wazir was dissented from. It was not understandably as to how the Additional District Judge came to overlook the Full Bench judgment which was noted boldly in the judgment of the trial. Court. This approach was regrettable and could not be approved.
12. ' Against the judgment and decree rendered in appeal, the petitioner preferred a revision in this Court. It was admitted to hearing on 5-7-1986. In the admitting note, case of Nur Ahmad PLD 1953 Lahore 470 was referred to.
13. ' As I have observed in the opening sentence of my judgment, only two points arise for consideration and decision in the civil revision. As for the preemptibility of sale through a Court decree passed in the suit for specific performance, the point at anvil was not barren of binding authority in this Court. Full Bench decision of this Court in case of Nur Ahmad (supra) did not leave it res integra and finally found that the sale prescribed by deed of sale signed by Court on behalf of the vendor under Order XXI, R.34(5), C.P.C. Was pre-emptible. H.R. Khanna, J. Of East Punjab High Court in Balbir Singh and others, AIR 1965 Punjab 346 subscribed to similar thinking. It was observed by him that "According to sub-rule (5) of Rule 34 of Order 21 of the Code of Civil Procedure, the execution by the Court shall have the same effect as the execution of the document by the party ordered to execute the same. A somewhat similar matter arose in Gopi Nath Das v. Namai Charan Das, AIR 1951 Cal.
551. In that case a claim for pre-emption was made in respect of a sale about which a sale-deed had been executed by the Court in execution of a decree for specific performance. Harris, C.J. Held that "where after the refusal of the defendant to carry out a decree for specific performance the Court executes the sale-deed, it does so as the agent of the defendant and the transfer is in fact and law a transfer by the defendant". In para. 13 of the Report, a reference to judgment by the Division Bench reported in AIR 1949 Lahore 72: PLD 1949 Lah. 1 Muhammad Wazir v. Chaudhri Jahangiri Mal was made but the judgment was not followed and the view finally taken was that sale in execution of a decree passed in the suit for specific performance was preemptible. In the above state of law, I found it difficult to uphold the view of the lower Appellate Court on this score and the learned counsel for the petitioner equally shared the difficulty and was unable to support it. I would, therefore, hold that the sale in question was pre-emptible.
14. ' This brings me to the next question about the petitioner's superior right of pre-emption. Vendors were local. So was the petitioner. Except for land in dispute, they were not shown owners of the land or other property. Land records to prove relationship, therefore, were not forthcoming. Similarly, the pedigree-table was wanting. Relationship set up in the plaint was sought to be established by oral testimony. Except for a solitary statement of the petitioner recorded after close of defendant's evidence, practically he gave no evidence in affirmative in proof of his relationship to the vendoRs, Onus to prove superior right of pre-emption was on him. He could not give evidence on the issue relating to superior right of pre-emption in rebuttal after the defendant had concluded his defence evidence. Plaintiff's statement in affirmative could not be reserved till after conclusion of defendant's evidence. The practice of reserving plaintiffs statement in affirmative after the defence evidence was over by the other party deprived it of rebutting the evidence given against it.
15. Testimony of two P.Ws., recorded after the defence evidence could not, therefore, be read and taken into consideration. Independent of it, their testimony was also not to the point. They were neither members of the petitioner's family nor had otherwise special means for knowing of inter se relationship of the parties. Their evidence was unreliable and unconvincing also. On their own showing, they could not be held truthful witnesses for holding the disputed relationship proved.
16. With the exclusion of their testimony from consideration, there was a solitary statement of the petitioner left in the field. Admittedly he could not be a relation of Mst. Karim Bibi widow of Shera and as far the other vendors, his self-serving statement was insufficient for holding a superior right of pre-emption in him. Vendee was on defence. He denied petitioner's relationship to the vendoRs, It was, therefore, a case of oath pitted against oath. The petitioner was bound to prove the fact in issue. Therefore, he must fail. It was in evidence that other persons were available to depose on inter se relationship. Nevertheless, none came forward to make statement for the petitioner.
17. Unconvicing and discrepant oral evidence was not sufficient to hold issue No,3 in favour of the petitioner. I have again reviewed the record but am not convinced of the merit of evidence to sustain the affirmative finding on issue No,3 in favour of the petitioner. What I intend to say more clearly was that the relationship set up was not satisfactorily proved. It shall be advantageous to observe that the petitioner applied for additional evidence for producing Yasin, Feroze sons of Shera, Shah Alam, Rehan sons of Ismail in affirmative evidence. Defendant resisted the application for additional evidence. On 25-3-1982, the trial Court dismissed the application. It observed "arguments heard. Record perused. If the vendors were not on good terms with the applicant, he could have examined some other witnesses in support of his contention. Assuming documentary evidence on the relevant issue as sufficient, the applicant closed his affirmative evidence on 5-10- 1980 through his own sweet will. The defendant also by now has completed the evidence and the case is at the stage of evidence of the plaintiff in rebuttal. Grant of this application which does not disclose any sufficient ground to entitle the applicant to the benefits of Order XVIII, C.P.C., the case will be reopened without any justification". Petitioner filed a revision against this order in the District Court at Jhang. It was dismissed in limine, on 27-4-1982, by Additional District Judge, Jhang. The matter was not agitated further. C.M No,1/C/1993 was filed in this Court for taking similar additional evidence. On 18-4-1993, it was allowed to be dismissed as withdrawn. Learned counsel submitted that instead of a fresh application for additional evidence, he shall agitate on the correctness of the orders already passed in this behalf in the lower Courts. Having regard to the context and the nature of the suit, the trial Court rightly declined an opportunity for further evidence to a negligent litigant. The petitioner could allowed to fill in the missing links of evidence not get another prop to sustain his failing pre-emption suit. He could not be Having regard to the aforesaid, civil revision fails on merits and is dismissed with no order as to its costs in his Court. Records be returned.