' ZIA MAHMOOD MIRZA, J---Petitioners seek leave to appeal against the judgment of Lahore High Court, Multan Bench dated 13-3-1995 dismissing their appeal (R.F.A. No, 111 of 1981 filed against the judgment and decree of the trial. Court whereby the suit of the plaintiffs/respondents for possession through pre-emption of the suit land was decreed.
2. Facts relevant for the disposal of this petition, briefly stated, are that the petitioners and respondent No,4 purchased 197 Canals 5 Marla's of land situate in Mouza Batian, Tehsil Khanewal, District Multan for a sum of Rs,2,95,875 through a registered sale deed dated 18-2-1979. The sale was preempted by respondents Nos. 1 to 3 herein claiming that they being the owners in the estate had superior pre-emptive right as against the vendees. The suit was contested by all the vendees except Zulfiqar respondent who being the son of one of the plaintiffs conceded the claim of the plaintiffs in his written statement. The contesting vendees, the present petitioners denied the plaintiff's superior right of pre-emption contending that they (i,e, petitioners) were also the owners of the estate and tenants of the suit land. Learned trial Court after framing necessary issues and recording the evidence adduced by the parties decreed the suit holding that the plaintiffs/respondents had superior right of pre-emption as against the petitioners who were strangers. Petitioners' plea that they too were the owners in the estate and tenants of suit land was held not to have been proved.
3. Feeling aggrieved, petitioners preferred an appeal in the High Court. At the hearing of the appeal, they challenged the finding of the trial Court only on the issue relating to superior pre-emptive right of the plaintiffs by contending that when adducing evidence in the affirmative, respondents led no evidence to prove that they were the owners of the estate and that the statement of one of the plaintiffs recorded in rebuttal of the evidence produced by the petitioners could not be read in evidence. It was also contended by the petitioners in the High Court that in the absence of any documentary evidence to establish the respondents' ownership of the agricultural land in the revenue estate, their suit could not have been decreed. These contentions were repelled by the learned Judges of the High Court holding that while it is true that in order to prove an issue, onus of which is on the plaintiff, he must produce whatever evidence he wishes to rely upon in the first instance and he cannot be permitted to lead any affirmative evidence while producing evidence in rebuttal but it was pointed out that in the present case, counsel for the plaintiffs while closing the affirmative evidence on 15-11-1978 had specifically reserved the right to examine the plaintiffs in rebuttal as also on affirmative after the defendants close their evidence and no objection was taken by the petitioners at that stage. On the other hand, they acquiesced in this procedure by producing their evidence without any protest and in fact cross-examined the plaintiff-respondent No,1 when he appeared as P.W.2 and deposed in suppout of the issue relating to the plaintiffs, superior right of pre-emption. Petitioners were, therefore, not allowed to raise this objection and it was observed by the learned Judges: "The procedural irregularity, if any, cannot be made a ground for having the decree set aside especially when the procedure was adopted with at least tacit consent of the appellants. Furthermore, according to section 99 of C.P.C. a procedural irregularity not affecting the merits does not vitiate the decree in the absence of any prejudice. Learned counsel for the appellants has not been able to point out as to what evidence defendants could have produced in rebuttal had plaintiff No,1 appealed as a witness before the evidence of the appellants was recorded".
' The contention of the petitioners that the factum of ownership could only be proved by documentary evidence was also found to be devoid of any merit and it was pointed out by the High Court that plaintiff-respondent No,1 while appearing as P.W.2 had categorically stated that he was the owner in the estate but he was neither cross-examined on that point nor was any evidence produced by the petitioners to rebut his statement. Having said this, the learned Judges proceeded to observe that both D.W.5 and Haq Nawaz one of the petitioners appearing as D.W.6 admitted that the respondents were the owners of the land in the same village. Contention raised on behalf of the petitioners that their admissions were of no consequence .As it was not stated by these witnesses that the land owned by the respondents was agricultural in nature was repelled by the learned Judges with the observation that the plea sought to be raised was "an afterthought besides hypertechnical and is nothing but hairsplitting". The learned Judges also observed and in our view rightly that to prove ownership in the estate, it is not necessary to produce documentary evidence and the fact may well be established by oral evidence. With these findings, the petitioners' appeal (RFA-111 of 1981) was dismissed vide the impugned judgment.
4. Learned counsel appearing in support of this petition sought to contend in the first instance, though not very firmly, that the plaintiffs/respondents should not have been permitted to produce affirmative evidence on the issue of their superior right of pre-emption at the stage of evidence in rebuttal as this procedure is repugnant to the provisions of Order 18, rules 2 and 3, C.P.C. This contention, as noted above, was also raised by the petitioners in the High Court and was repelled for good reasons. It is not denied by the learned counsel that the respondents while closing the affirmative evidence had specifically reserved the right to examine one of the plaintiffs in rebuttal as also in affirmative after the petitioners closed their evidence and that the petitioners had not taken any objection thereto at that stage. Not only that, they produced their own evidence without any protest and also cross-examined plaintiff No,1 when he appeared as P.W.2 after the close of the petitioners' evidence. This conduct of the petitioners, as rightly observed by the High Court, amounted to acquiescence on their part. Petitioners are also not shown to have suffered any prejudice as a result of the procedure complained of as they were unable to point out in the High Court as to what evidence they would have produced in rebuttal if plaintiff No,1 had appeared as a witness at the stage of affirmative evidence.
5. It was next contended by the learned counsel that in the absence of the best evidence i,e, an extract from Revenue Record showing the ownership of the plaintiffs in the estate, the issue relating to the superior pre-emptive right of the plaintiffs could not be said to have been duly proved on the strength of mere oral evidence. This contention, too, has no substance nor does it merit any serious consideration. There is no inviolable rule that the ownership of the land can only be established by producing the documentary evidence. It may well be proved by oral evidence. The argument even otherwise is of no avail to the petitioners as they had not seriously disputed the respondents' claim of being the owners in the estate. Perusal of the petitioners' written statement quite clearly shows that their denial of the respondents' claim to superior pre-emptive right was based on their assertion that they i,e, the petitioners themselves were the owners in the estate and were also tenants of the suit land and not that the plaintiffs were not the owners in the estate. It has also been noticed in the impugned judgment that the petitioners did not cross-examine plaintiff No,1 when he appeared as P.W.2 to prove that the plaintiffs were the owners of the land in the estate nor did they lead any evidence in rebuttal.
6. Yet another argument raised by the learned counsel was that the mere fact that the respondents were the owners of the land in the estate was not sufficient to establish their superior right. They should have further proved that the land owned by them was assessed to land revenue which proof was lacking. This argument also does not merit any consideration as no such objection was taken by the petitioners in their written statement nor was any question put to P.W.2 in cross- examination when he deposed that the plaintiffs were the owners of the land in the estate.
7. It was next pointed out by the learned counsel that according to the 'Khasra Girdawari' Exh.D-6, 5/6 vendees/petitioners were shown as the tenants of the suit land and it was also an admitted position that Haq Nawaz and Shahmir petitioners were the owners in the estate. It was, therefore, argued by the learned counsel that the suit as against these petitioners was liable to be dismissed.
This argument is also devoid of any merit as the sale transaction, the subject-matter of the pre- emption suit, was not divisible. It is an accepted principle that the plea as has been raised by the learned counsel can be sustained only if the sale transaction is divisible i,e, if the sale to each vendee can be regarded as a separate sale. Law on the subject is fairly well settled that a sale made in favour of different vendees would be divisible only if the share of each vendee is specified in the sale-deed and each vendee has contributed to the sale price proportionate to his share.
Refer Abdullah and 3 others v. Abdul Karim and others (PLD 1968 SC 140) wherein it was held that there can be no presumption as to the divisibility of the transaction merely on the basis of the recital in the deed that the vendees took the property in specified shares if the purchase money is paid in a lump sum without specifying the amount paid by each of the vendees. Learned counsel argued that the petitioners had purchased the suit land in distinct shares with specific areas but it was not denied that as per the recitals in the sale-deed, the sale price was paid in lump sum.
Confronted with this position, learned counsel sought to contend that although in the sale-deed, sale price was stated to have been paid in lump sum, petitioners had in fact contributed to the sale consideration proportionate to their respective shares and in order to prove this fact, petitioners had moved an application before the trial Court for amendment of their written statement so as to take the plea that each petitioner had paid the price proportionate to his share in the sale but their application was wrongfully and illegally rejected by the trial Court. We have seen the trial Court's judgment. It shows that the petitioners moved the application for amendment of their written statement at the time of arguments.
' Learned counsel admitted that the application in question was moved on 27-5-1981 while the judgment of the trial Court was passed on 31-5-1981. The application was undoubtedly highly belated and was rightly rejected by the trial Court. Be that as it may, the petitioners did not challenge the dismissal of their application in the appeal filed in the High Court nor was any grievance made on that account before the High Court at the time of arguments as it does not find mention in the impugned judgment. In the circumstances, in view of the position obtaining on the record, the sale transaction cannot but be regarded as indivisible with the result that even those vendees/petitioners who are shown to be the owners in the estate or the tenants of the suit land lost their superior right, if any, for having joined with them other vendees who were strangers. No other point was urged by the learned counsel for the petitioners.
8. Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed and the leave sought is refused.