1. ' These are two connected second appeals by the vendees of separate parcels of land, situated in village Kirpalpur of Tehsil and District Multan. Pre emption suits filed against them were decreed by the trial Court on 20-7-1981, and, appeals preferred from the decrees of the trial Court were dismissed by learned District Judge, Multan, on 15-9-1982. Thereupon, second appeals Nos. 123 and 124 of 1982 were filed in this Court. Those were admitted to hearing on 10-11-1982. On 24-10-1989, these appeals were allowed ex parte, by my learned brother Ihsan-ul-Haq Chaudhary, J. and suits were remanded to the Primary Court for retrial on indicated lines. On 1-7-1990, ex parte orders of remand were recalled, and, the appeals were directed to be heard on merits, in presence of the parties. Except for short variations, factual matrix of the appeals is identical and points arising for decision in them are also similar. Therefore, they are being taken up together for being dealt with in a common judgment.
2. ' Facts in R.SA. No,123 of 1982 are:-- ' Bashir Ahmad and Muhammad Amin sons of Sardar Bakhsh, Jat, by caste of village Nandla, in Tehsil and District Multan, owned 118 Kanals 17 Marlas of land in village Kirpalpur of Tehsil and District Multan. By Mutation No,260 sanctioned on 15-5-1973, they sold this piece of land to Mst.
3. Umat Ullah wife of Ghulam Shabbir for a consideration of Rs,77,200. Maqbool Hussain alongwith his four brothers namely Khadim Hussain, Faqir Hussain, Talib Hussain, Iqbal Hussain sons of Wahid Bakhsh of village Nandla claimed pre emption in respect of the above sale and filed a suit for it on 13-5-1974, in the Court of Senior Civil Judge at Multan. Superior right of pre-emption was asserted by them as near collaterals of the vendors. Price shown to have been paid for the land was disputed by them and it was stated that the land-in-suit was sold only for Rs,34,000 and the rest was an inflated insertion in the sale-mutation. Later, it was discovered that the land was transferred by the original vendee in favour of her daughter Mst. Farrukh Jabeen, who was added as defendant No,2 in the pre-emption suit. Vendoes submitted defence and contested the right of the pre-emptors to get land from them. Sale price stated in the mutation of sale was asserted to have been fixed in good faith and actually paid to the vendors. Superior right of pre-emption asserted against the vendees was also denied by them.
4. ' On 11-12-1974, the trial Court raised following issues from pleadings of the parties for determination by it:--
(1) Whether the plaintiffs have a superior right of pre-emption?
(2) Whether the ostensible sale price was paid or fixed in good faith?
(3) What was the market value of the suit land at the time of impugned sale?
(4) Whether this suit is not properly valued?
(5) Whether this suit is time-barred?
(6) Whether this suit is for partial pre-emption?
(7) Relief.
5. ' Upon addition of defendant No,2, on 26-5-1976, an additional issue numbered 5-A given below was added:-- (5-A) What is the effect of subsequent transfer by defendant No,1 in favour of defendant No,2?
6. ' Upon settlement of original issues, the trial of the suit was set down for taking evidence from the parties.
7. ' Since the later events and records in the connected pre-emption suit were verbatim similar, it is appropriate at this stage to refer to the facts in the other pre-emption suit, before resuming threads of the instant pre-emption suit being left over for a while.
8. ' Facts is R.S.A. No,124 of 1982 are:-- ' Muhammad Jaffer, Muhammad Nasir and Muhammad Aslam sons of Muhammad Hayat of village Nandla, in Tehsil and District Multan owned 79 Kanals 7 Marlas of land, in revenue estate of village Kirpalpur of Tehsil and District Multan. By Mutation No,259 sanctioned on 15-5-1973, they sold above land to Mst. Umat Ullah wife of Ghulam Shabbir for a consideration of Rs,51,600. Maqbool Hussain and his four brothers, namely, Khadim Hussain, Faqir Hussain, Talib Hussain and Iqbal Hussain sons of Wahid Bakhsh of village Nandla claimed pre-emption in respect of this sale and sued the vendee for possession of the land through pre-emption on 13-5-1974, in the Court of Senior Civil Judge, Multan. Like the earlier suit Mst. Umat Ullah transferred the land purchased by her in favour of her daughter Mst. Farrukh Jabeen. Upon discovery of subsequent sale, second vendee was added as defendant No,2 in the pre-emption suit. Plaintiffs asserted their superiority as collaterals of the vendors. They also denied the sale-price paid for the land and submitted that in fact the land was sold for Rs,22,000 and the same was its true market value. Yendees submitted their written statement and contested the pre emption suit against them. It was stated that the price stated in the mutation was fixed in good faith and actually paid to the vendors. Also, the same was its true market value. They also controverted superior right of pre-emption asserted against them. Court-fee paid on the plaint was also described to be insufficient.
9. ' On 10-1-1975, the trial Court framed following issues for determination:--
(i) Whether the plaintiffs have a superior right of pre-emption? O.P.P.
(ii) Whether the ostensible sale price was paid or fixed in good faith? O.P.D.
(iii) What was the market value at the time of sale? O.P. Parties.
(iv) Whether the suit has been properly valued? O.P.P.
(v) Whether the suit is time-barred? O.P.D.
(vi) Whether the suit is for partial pre-emption? O.P.D.
(vii) Relief.
10. ' Upon addition of defendant No,2, an additional issue VI-A, 'What was the effect of subsequent transfer of suit land in favour of defendant No,2?" was added by the trial Court. Yet another issue VI- B, "Whether the defendants effected any improvements over the land-in-suit, if so, what is the quantum of these improvements?" O.P.D., was added by the trial Court on 19-12-1979. Upon settlement of original issues, the trial Court adjourned the proceedings for taking evidence from the parties. Henceforth, records of both the pre emption suits depicted almost complete similarity.
11. Order sheets of the pre emption suits, oral as well as documentary evidence was a replica of each other and the treatment to the suits by the trial Court was also identical. In this view, reference to the record of one pre-emption suit shall suffice for the purpose and requirements of law. Therefore, I shall first be adverting to the records in Civil Suit No,407 in R.SA. No,123 of 1982, and, thereafter if need be, to the records of the connected pre-emption suit.
12. ' In Civil Suit No,407 giving rise to R.SA. No,123 of 1982, learned counsel for the plaintiffs tendered in evidence, copy of pedigree table Exh.P.1, copy of pedigree table of village Kirpalpur Exh.P.2, copy of register Haqdaran Zameen for the year 1971-72, Exh.P.3, copy of an extract from crops inspection register, Exh.P.4, copy of sale mutation Exh.P.5 on 12-4-1977 and stated that after tendering copy of inheritance Mutation shall close the affirmative evidence. On 27-6-1977, cc,y of inheritance Mutation No,190 Exh.P.6 was tendered in evidence and the affirmative side of the plaintiffs' case, except for the statements of the plaintiffs to be recorded after defence evidence, was closed.
13. Thereupon, the proceedings were adjourned to 31-7-1977 for defendants to give their defence evidence. Number of adjournments were given to them for their evidence, but they could only record statements of two D.Ws. namely, Muhammad Jaffer son of Muhammad Hayat D.W.1 and Muhammad Asghar Patwari Halqa Kirpalpur D.W.2. After several further adjournments, eventually, the trial Court applied Order XVII, Rule 3, Civil Procedure Code against them on 20-2-1980, and, closed their evidence. Presumably, the defendants were not present in person before the trial Court on the aforesaid date of hearing, and, therefore, could not record their own statements. After closing of the defence evidence, the trial was adjourned for plaintiffs' evidence in rebuttal. Availing of the chance, they produced Muhammad Rafiq Ahmad Patwri, P.W.2, for proving five-yearly statement of sale averages Exh.P.7 and Muhammad Jeewan P.W.3, who deposed that the land was sold for Rs,34,000 and the sale price was paid in his presence. Faqir Hussain, one of the plaintiffs appeared as P.W.4, who gave oral account of the genealogy for connecting it with that of the vendors. He also deposed that the land was sold for Rs,34,000 only. Also copies of Mutations Nos.256 Exh.P.8, 254, Exh.P.9, 251, Exh.P.10, 244, Exh.P.11, 242, Exh.P.12, 290, Exh.P.13 were tendered and evidence was finally closed on 21-3-1981 by the plaintiffs, and, the suit was adjourned for hearing arguments on 2-4-1981. On this date of hearing, plaintiffs submitted an application under Order XVIII, Rule 2, Civil Procedure Code for production of a copy of Mutation No,290 sanctioned on 27-12- 1973 in favour of Mst. Farrukh Jabeen defendant No,2 in the suit. Copy of the application was handed over to the defendants' side for a reply to it. Eventually, on 8-7-1981, the trial Court gave permission for producing copy of the aforesaid mutation in evidence. Once again the suit was adjourned for rebuttal evidence and hearing of arguments on merits on 20-7-1981. On the adjourned date of hearing, Mukhtar-e-Aam of the plaintiffs and their counsel admitted the sale price in the sum of Rs,77,200. Upon review of the above material, trial Court found that the plaintiffs were Muslim Law heirs of the vendors and had better right of pre-emption and decreed the suit in their favour on 20-7-1981, by subjecting it to payment of Rs,77,200 uptil 15-10-1981, failing which the suit was to stand dismissed. An appeal filed against the judgment and decree of the trial Court was dismissed by learned District Judge on 15-9-1982. As observed elsewhere, except for little variations here and there, the record in Civil Suit No,406, which gave rise to R.SA. No,124 of 1982 bore close similarlity with the record of Civil Suit No,407. In Civil Suit No,406, learned counsel for the plaintiffs tendered copy of pedigree table Exh.P.1 (village Nandla), copy of pedigree table Exh.P.2 (village Kirpalpur), copy of register Haqdaran Zameen for the year 1971-72 Exh.P.3, copy of an extract from crops inspection register Exh.P.4, copy of Mutation No,260 Exh.P.5 in evidence on 12-4- 1977, and stated that after producing copy of inheritance mutation, affirmative evidence shall be closed. On 27-6-1977, in his supplementary statement he closed affirmative evidence, except for the statement of plaintiffs to be recorded after the defence evidence was over. Thereupon, the suit was adjourned for defence evidence. They could record statements of two D.Ws. only. One was Muhammad Jaffer son of Muhammad Hayat D.W.1, who stated in the examination-in-chief about the fixation and payment of sale price in the sum of Rs,51,600. In cross-examination, the witness gave an oral account of his pedigree connecting it with the pre-emptors. D.W.2 was Muhammad Asghar Patwari, who proved five yearly statement of sale-averages Exh.D.1. On 20-2-1980, the trial Court closed defendants' evidence by applying Order XVII. Rule 3, Civil Procedure Code, and, adjourned the suit for taking evidence from the plaintiffs, who gave evidence of Malik Faiz Bakhsh, Muhammad Rafiq Ahmad Patwari Halqa, Muhammad Jeewan and one of them namely Faqir Hussain gave evidence as P.W.4. In his statement Faqir Hussain P.W.4 tendered copy of inheritance mutation No,190 sanctioned on the death of Wahid Bakhsh in favour of his heirs namely Mst.
14. Sharam Khatoon widow, Hayat Muhammad son, and, a daughter, on 17-9-1970. Further tendered the copies of Mutation Nos.256 Exh.P.8, 254 Exh.P.9, 251 Exh.P.10, 244 Exh.P.11, 242 Exh.P.12, 290 Exh.P.13, and, finally closed the evidence. None from the defendants stepped in the witness-box to record their statements on oath. Upon close of the parties' evidence, suit was adjourned for hearing arguments on merits on 2-4-1981. Thereafter, it was adjourned for some dates for dealing with a miscellaneous petition, under Order XIV, Rule 5, Civil Procedure Code. Eventually, order of the trial Court dated 8-7-1981 showed that evidence was closed on both sides. On 20-7-1981, plaintiffs admitted sale consideration in the sum of Rs,51,600. This was vide their statement in Court recorded on the same day. On hearing arguments, the trial Court found for the plaintiffs and decreed pre-emption suit in their favour on 20-7-1981 subjecting it to payment of Rs,51,600 uptil 15- 10-1981. In default of the payment of purchase price by the due date, pre emption suit was to stand dismissed. An appeal preferred from the decree by the vendees, namely, Mst. Umat Ullah and Mst.
15. Farrukh Jabeen was dismissed by learned District Judge on 15-9-1982. His judgment in both the appeals was identical. As is evident from the impugned judgments of learned lower appellate Court, findings on issues relating to insufficiency of valuation and bar of limitation relatable to it were only contended before it and answered against the appellants by him. Findings on other issues were not disputed. Para. 3 of the impugned judgment was clearly illustrative of it. For the purpose of reference, it reads:-- "The findings of the learned Civil Judge on the other issues have not been disputed before me and so are hereby affirmed. The findings on the above-quoted issues have only been challenged."
16. ' After having reproduced relevant portions of record in both the pre-emption suits and the judgments rendered in them by the learned Courts below, the stage is ripe for taking note of arguments advanced at the hearing by learned counsel for the parties and dealing with the legal issues debated by them. On behalf of the appellants, their learned counsel Mr. M.Z. Khan Burki, Advocate urged that:--
(i) Closing of defendants' evidence under Order XVII, Rule 3, Civil Procedure Code was not warranted by procedural law and was an act in clear excess of jurisdiction;
(ii) Without an opportunity for giving rebutting evidence, evidence taken from the plaintiffs after close of defence, could not have been looked into and relied upon by the Courts below;
(iii) Pedigree tables Exhs.P.1 and P.2 did not connect the plaintiffs' genealogy with the line of vendors;
(iv) Statement of Muhammad Jaffer D.W.1 in cross-examination conceding relationship of the plaintiffs-pre-emptors to the vendors was not binding upon defendants-appellants. In this behalf, learned counsel relied upon the case reported in AIR 1941 Lah.
17. 55.
18. ' In reply, Malik Noor Muhammad Advocate, learned counsel for legal representatives of deceased- respondent Maqbool Hussain, whose arguments were adopted by his colleague Ch. Safdar Yasin, learned counsel for respondents Nos.2 to 5 submitted that in absence of objections taken at the appropriate time and stage before the trial Court as well as the first Appellate Court, the appellants were precluded to urge on the procedural violations. It was further argued that the appellants consented to the procedure; allowed the evidence to be recorded without demur, gave part of their own defence evidence and did not claim right to give rebutting evidence. In absence of any objection, the appellants shall be deemed to have waived any violation of the procedure adopted in the trial Court. It was also argued that in the memoranda of appeals filed in the lower appellate Court, the appellants raised no objection on the above score, nor urged it at the hearing of appeals. Also, they did not complain of it in the memoranda of second appeals filed in this Court.
19. Learned counsel further submitted that in this background, objection could safety be taken a belated thought. Reference was invited to section 99 of Civil Procedure Code for waiving the procedural irregularity which did not cause any prejudice to the real merits of the cases and, the consequent decision in them. It was also submitted that since the appellants did not question the correctness of the pedigree between the parties, i.e. the vendors and pre-emptors in the lower appellate Court, they were debarred from questioning it for the first time in second appeals. Lastly, upon reference to recorded material of which there was no effective rebuttal, it was submitted that superior right of pre-emption was rightly found to exist in favour of respondents by the Courts below. Foremost point requiring decision in the appeals was about superior right of pre-emption claimed by the respondents. Superiority was asserted on the ground of being related to the vendors. In Civil Suit No,407, the land-in-suit was sold by Bashir Ahmad and Muhammad Amin sons of Sardar Bakhsh, Exh.P.1 showed that Sardar Bakhsh was lineal male descendant of Bakhshan son of Sonhara. Pre emptors were sons of Wahid Bakhsh son of Rawal son of Karim Bakhsh son of Bakhshan. Bakhshan was common male ancestor of the vendors and the pre emptors. Thus, they were firmly connected together in their genealogy. Muhammad Jaffer son of Muhammad Hayat D.W.1, in his cross-examination gave an oral account of his pedigree connecting it with the vendors and the pre-emptors. Mr. Burki contended that his statement on pedigree table was not useful and binding on the party producing him. Strength for this statement was derived by him from observations in case of Jalal Din and another v. Nawab and others AIR 1941 Lah. 55, wherein a learned Judge of this Court had observed that; "The only reason given by.the learned senior subordinate Judge for accepting this story is that Abdul Hakim has given the story himself, and that as he appeared as a witness for the defendants, they must be bound by his statement. There is no such rule of law with regard to the statements of witnesses, though the belief in such a rule is not uncommon and does great harm in judicial trials in some of the subordinate Courts."
20. ' In Allah Dad v. Government of Pakistan and 53 others 1989 CLC 1571 (Penh.), Wali Muhammad Khan, J., as his Lordship then was, and, now a Judge of Supreme Court took the view that:-- "By now it is an established law that the party producing a witness is bound by whatever deposition is made by him and he cannot turn round and say that the adverse statement given by his witness may be excluded from consideration. The witness had not been declared hostile and the plaintiff- petitioner was rightly held bound by it by the learned Appellate Court."
21. I have not been able to discover any other decided case on the point. Nor, the learned counsel for the parties brought any decided case on the point to my notice. In my view, and, I speak with due humility, that ordinary a party is bound by testimony of the winters produced by it, unless there is a material or a circumstance available on record indicative of a different course. A party genuinely believing that a witness shall support its case upon producing him in Court for his testimony may be trapped by him by taking volteface in the act of readily conceding each and everything put to him in cross-examination by its adversary. Placed in such a dilemma, the party producing the witness may ask for permission from the Court to cross-examine him for getting rid of his adverse testimony. Independent of it, weight and worth of oral testimony of a witness depends upon its intrinsic strength and the Court is not necessarily tied down to accept on its face value the oral statement of a witness. The facts and circumstances surrounding the oral deposition are also required to be scrutinized and investigated with care for arriving at the truth. If the statement of a witness produced by the party is consonant and synchronises with other material on record and fits in with the natural probabilities of a case, it may be taken to be a fair expression of truth for basing a decision on it. Therefore, I feel a little hesitant to subscribe to the broad statement of law expressed in the above two decided cases, and, in my opinion, the correct rule to apply is that enunciated above. Defendants produced D.W.1 for a supporting statement on the price of the land paid by them. They knew of his relationship with the vendors. He is one of the vendors of the land in Civil Suit No,406. He is real brother of the other two vendors, namely, Muhammad Nasir and Muhammad Aslam. Put to cross-examination, he could not withhold his knowledge of relationship existing between the parties. In answers to questions put to him, he gave a complete account of ancestory of the parties connecting them together at 'Sonhara'. His statement on relationship unfolded in course of cross-examination was sufficiently corroborated by the contents of pedigree tables, Exhs.P.1 and P.2. Faqir Hussain P.W.4 also gave a similar account of his pedigree. Original vendee did not claim any relationship with the vendors. She did not try to rebut the evidence adduced by the plaintiffs to establish their relationship with the vendors. Despite adequate time and opportunity, she did not give the required evidence. She did not herself enter the witness-box to make her own statement. Having regard to number of adjournments allowed for leading defence evidence, it could not be found that Order XVII, Rule 3, Civil Procedure Code was erroneously applied to the facts of case by the trial Court. After closing of defence evidence, plaintiffs gave oral as well as documentary evidence. One of them, namely Faqir Hussain recorded his own statement in affirmative as well as in rebuttal. Most of the evidence oral as well as documentary, led in rebuttal after closing of defence, pertained to the value of the land only. Only material piece of evidence recorded after close of defence was the statement of Faqir Hussain, one of the plaintiffs. There were number of issues settled for trial in both the pre-emption suits. Onus to prove superior right of pre-emption in both the suits clearly rested upon the plaintiffs. There were other issues, which the defendants were required to prove. Where the onus of proof of some issues in the suit is on the plaintiff and some on the defendant, the plaintiff must begin the case and unless he has led his evidence on the issues, which he is required to prove, defendant cannot be called upon to enter upon his defence. In case of several issues and divided onus, Order XVIII, Rule 3, Civil Procedure Code applied. In such a case, party beginning may at his option produce his evidence on those issues which the other party is required to prove or reserve it by way of answer to the evidence produced by the other party. Where the evidence is so reserved, the first party beginning may after the other party has produced and closed his evidence, then produce his rebutting evidence. Be that as it may, there is no doubt that the plaintiffs were obliged to produce their entire evidence on the issues which they were required to prove and after they had performed their task, the defendants were to begin and lead their evidence. Plaintiffs' affirmative evidence on issue relating to. superior right of pre-emption could not be reserved till after the defendants produced their evidence. Oral statement of the plaintiffs could prove decisive. In case, it was taken after defendants' evidence, it would go without a chance for rebutting evidence by the defendants and may cause serious prejudice to them. The practice of reserving the statement of the plaintiff, till after the close of defence evidence was contrary to express provisions of Order XVIII, Rules 1 and 3 of Civil P.C. Such a practice was not approved by this Court in case of Al-haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another 1979 CLC 494 (Lah.), Murid Hussain v. Muhammad Lal 1987 CLC 101 (Lah.), Naseer Ahmad v. District Judge, Multan and 4 others PLD 1992 Lah.
92. Nonetheless, neither the defendants nor their learned counsel, who happened to be an experienced Advocate working on civil jurisdiction ever objected to reserving of the plaintiffs' evidence till after close of defence evidence. Defendants participated in the trial of suit, without any objection on that score. Even after finally closing of evidence by the plaintiffs, the defendants did not claim any opportunity for leading rebutting evidence or a chance for giving additional evidence, in the event of plaintiffs having led more affirmative evidence. When the matter came up in first appeals appellants did not demur to the krocedure adopted at the trial for complaining of any prejudice to them. Therefore, the defect was merely a procedural irregularity curable under section 99 of Civil Procedure Code. This section points out one of the most salutary rules of law for preventing technicalities from overcoming the ends of justice and from operating as a means of circuity of litigation. See AIR 1962 Punj.
467. In somewhat similar circumstances, this Court in case of Pir Bakhsh and 4 others v. Barkhurdar PLD 1987 Lah. 666 refused to entertain an objection of the kind under consideration. Having regard to the existing state of record, pedigree tables Exhs.P.1 and P.2 read in conjunction with the inheritance mutation Exh.7, satisfactorily establish and prove relationship of the pre emptors with the vendors in both the pre-emption suits. Superior right of pre emptors was clearly established.
22. There is another circumstance weighing against the appellants. They had not challenged the findings on superior right of pre-emption before the lower Appellate Court. Impugned judgments were manifestive of the omission. Having failed to urge it before the lower appellate Court, it shall be deemed to have been waived by them. In this view, appellants were precluded to urge it again in second appeal. Except for the points noted above revolving around the findings on superiority of pre-emptive right, no other point was either urged or taken at the hearing of second appeals. I would, therefore, affirm the findings of the lower Courts. For these reasons, second appeals fail and are dismissed without any order for costs in them in this Court.
23. Original records be returned.