CH. KHURSHID AHMAD, J.---The present respondents had purchased 50/312 share in Khewat No.6/6 of Jamabandi for the Estate of Chak No. 57/P, Tehsil Khanpur, District Rahimyar Khan, admeasuring 11 Kanals 12 Marlas under sale-deed registered on 2-3-1974. The sale price as entered in the deed was Rs.12,000. The land was purchased from Mst. Haneefan, vendor.
2. The present appellant filed a suit for possession through pre-emption of the said sale on 1-3-1975 basing his claim on preferential right of pre-emption as Khewatdar and as a co-owner in the estate as against the vendees who was neither co-Khatedar nor had any relationship with the vendor. It was claimed that no notice under section 19 of Punjab Pre-emption Act, 1913 was issued before the sale and that Rs.2,000 was the price fixed and actually paid being the market price and an amount of Rs.12,000 was fictitiously shown. The defendants appeared in Court and raised preliminary objections that the suit land was situated within the colony area and was not pre- emptiable as the same was subject to Colonization of Government Lands (Punjab) Act, 1912. The preferential right of plaintiff was also denied on the ground of his being a vendor under mutation of oral sale. It was however disclosed that land was purchased in the name of Abdul Karim who had died much earlier to the registration of sale-deed.
3.On the pleadings of the parties following issues were framed:-
(1) Whether the suit is beyond limitation? O.P.D.
(2) Whether the suit land was in colony area at the time of its sale and therefore, exempted from the pre-emption laws? O.P.D.
(3) Whether the suit property is not properly described if so, then the effect thereon? O.P.D.
(4) Whether the plaintiff has superior right of pre-emption as co-sharer in the holding of the suit land, and co-owner in the estate land? O.P.D.
(5) Whether the sum of Rs.12,000 was fixed in good faith and actually paid for the suit land to the vendor?, O.P.D.
(6) If the above issue No. 5 does not prove, then what was the price of suit property at the time of its sale? (On parties).
(7) Whether the plaintiff is estopped to file the suit? O.P.D.
(8) Whether insufficient and wrong court-fee has been paid by the plaintiff? O.P.D.
(9) Relief.
4. The parties adduced their evidence and the trial Court decided issues Nos. l, 2, 3, 7 and 8 against the defendants/respondents. Issues Nos.5 and 6 were decided in favour of the defendants and Rs.12,000 was held to be the price of the land fixed and paid under the sale-deed. Issue No.4 was decided in favour of the plaintiff and the suit as decreed in favour of the appellant on 30-11-1985 with no order as to costs. The respondents impugned the decree of the trial Court in appeal which was heard and accepted by Additional Sessions Judge, Rahimyar Khan on 15-4-1987. As it appears from the judgment of Appellate Court that only findings on issue No.4 were assailed.
5. The respondents had also filed an application under Order XLI, Rule 27, C.P.C. For production of copy of Mutation No.155 as additional evidence which was resisted by the respondents. The present respondents who were appellants in the lower Appellate Court wanted to produce copy of Mutation No.155 to prove that the plaintiff had become a Khewatdar on the basis of mutation of oral sale which was otherwise hit by provisions of section 54 of the Transfer of the Property Act and as such they could not claim any preferential right on the basis thereof. The Appellate Court accepted the application under Order XLI, Rule 27, C.P.C. Vide judgment under appeal and held that the plaintiff became co-sharer and owner by virtue of oral transaction of purchase given effect to by a mutation in contravention of section 54 of Transfer of Property Act; they cannot claim their superior right on the basis of oral purchase of land. Reliance was placed on the case of Muhammad Bukhsh v. Zia Ullah and others 1983 SCM R 988. The appeal was accepted by the Additional District Judge and suit was dismissed. The said judgment and decree, dated 15-4-1987 has been impugned in the present second appeal.
6. I have heard the learned counsel for the parties and have also gone through the record. I have also given my anxious consideration to the arguments addressed at the Bar.
7. Issue No. l was decided by the appellate Court. The findings were not assailed before the lower Appellate Court and the same amounts to concurrent findings. Issue No. l finally stands decided against the defendants/respondents. Issue No.2 was decided by the trial Court against the defendants on the premises that Notification No.74, dated 12-6-1944 as applicable to the former State of Bahawalpur had been withdrawn vide notification published on 12-2-1974. The import of the judgment was that the land though situated within the colony area and to which the Colonization of Government Lands (Punjab) Act, 1912 applied was no more exempted from the exercise of right of pre-emption after the withdrawal of notification on 12-2-1974, the pre-empted sale having been completed under the sale-deed registered after the withdrawal of the exemption on 14-2-1974. Findings on issues Nos.3, 5 to 8 were not assailed before this Court at the time of arguments and I affirm the findings of the trial Court on these issues.
8. The most important issue in the suit was Issue No.4. In this context defendants had moved various applications before the trial Court. They moved an application for ordering production of registered sale-deed under Order XI, Rule 14, C.P.C. The same was dismissed on 19-2-1979.
Against the rejection of application on 19-2-1979 under Order XI, Rule 14, C. P. C. No revision was filed. It was not even assailed in the rounds of appeal. It had attained finality and could not be re- agitated in the Appellate Court through a separate application. An application for additional evidence under Order XIII, Rule 2, C.P.C. Was however allowed and Mutation No.197 and Mutation No.199 were produced and were consequently accepted in evidence as Exh.D.9 and Exh.D.10 respectively. A revision petition against the said order was dismissed by the Honourable High Court on 5-11-1983.
It was the objection of the present respondents/defendants in the written statement that the land sought to be pre-empted was governed by Colony Act and was situated within the colony area and was therefore, not pre-emptiable. This objection was reduced in issue No.2 which cannot be divorced from issue No.4 as according to Government Grant Act, 1895 the provisions of section 54 of Transfer of Property Act, 1882 was not applicable to the lands governed by the said Act. Such grants were governed in Punjab by Colonization of Government Lands (Punjab) Act, 1912 which was also applicable to the colony land in Bahawalpur State.
9. The defendants produced Muhammad Hasan Draftsman, Deputy Commissioner Office, Rahimyar Khan who brought the map of Chak No.57-P to the Court and stated that according to the said map rectangle 414/11, 414/12, 414/15, 414/16 and 415/9 were shown in the said map which was exhibited as Exh.D.l. The defendants also produced copy of Register Haqdaran for the year 1969-70 for the estate. The pre-empted land was sold out of the said Khewat by Mst. Haneefan daughter of Karim Bukhsh and the Khewat consisted of Khasra Nos. Out of rectangle Nos.414/11, 414/12, 414/15, shown in Exh.D.l. The said rectangle was within the colony village boundary and the map was prepared by Colonization Officer, Bahawalpur on 6-5-1937. The defendants also produced Exh.D.8 which was copy of Khatoni showing that Mubarak Khan son of Karim Bukhsh was granted land admeasuring 13 Acres, 1 Kanal, 5 Marlas being Lot No.1 Sharqi and the Malkana thereof was paid through instalments during the period w.e.f. 15-7-1945 to 15-1-1952. The copy of Mutation No.46 was also produced in evidence showing that the State had conveyed its rights in favour of Mubarik son of Rahim Bukhsh. It was exhibited as Exh.D.7. The plaintiff had produced certified copy of sale-deed Exh.P.I and copy of Register Haqdaran Zamin for the year 1969-70 of Khewat No.6/6.
10. It was the case of the defendants that the land sought to be pre-empted was colony land. This fact was proved by them on record. The second objection that the plaintiff not having acquired the share of the said Khewat through a registered deed was not having any preferential right pales out as according to the facts the sale-deed sought to be pre-empted was for colony land which was governed by Colonization of Government Lands (Punjab) Act, 1912. Section 54 of Transfer of Property Act, 1882 was not applicable to the said land and as such the plaintiff had acquired rights under the law as a vendee through mutation of oral sale. The defendants could not blow hot and cold in the same breath. The defendants claimed exemption from the pre-emption on the ground that the land was situated in colony area and was governed by Colony Act but at the same time were insisting that the plaintiff, who was recorded as owner in the said Khewat, had not acquired the rights and was hit by the provisions of section 54 of Transfer of Property Act.
11. The copy of Register Haqdaran Zamin bears the name of the plaintiff as a co-sharer in Khewat No.6/6. It has a presumption of correctness though the presumption of correctness was rebuttable.
The Additional District Judge has stretched the arguments too far while holding that the appellants/ defendants had acquired ownership in the said Khewat through private sale.
12. The name of the plaintiff/respondent was entered in Exh.P.2, Exh.D.3 as a co-sharer in the Khewat. It was in the knowledge of the appellants/defendants at the time of sale that the plaintiff was one of the shareholders of the Khewat. They made no attempt to prove their contention but only made an application for production of additional evidence after the final arguments were addressed and the case was fixed for orders of the trial Court. An earlier application for additional evidence by defendants was allowed on 19-2-1979 and application under Order XI, Rule 14, C.P.C.
Was dismissed as supra. Later application was resisted by the appellant/plaintiff also on the ground that the same was made to fill in the lacuna in the case by the defendants after the same were pointed out at the time of final arguments. The said application was dismissed. Instead of challenging the vires of the order dismissing the said application the respondents/defendants chose to make yet another application under Order XLI, Rule 27, C.P.C. The perusal of record shows that they were making repeated applications on one ground or the other and were successfully causing delay in disposal of the case. The Appellate Court accepted the application without obtaining reply thereto from the other side. The Appellate Court had acted in exercise of its jurisdiction illegally and also with material irregularity in accepting the application under Order XLI, Rule 27, C.P.C. And allowing of the application amounted to affording an opportunity to the defendants, whose hands were stained with fraud having purchased the land in the name of a person having died long before land was purchased m his name, to fill in lacuna in their case.
Additionally no explanation was offered why evidence which was sought to be produced through the said application was not tendered before the trial Court. The application in such circumstances could not be allowed. Reliance is placed on Nazir Ahmad and others v. Mushtaq Ahmad and another 1988 SCM R 1653. The plaintiff had ample opportunities to produce the said evidence at the proper stage. Certified copies of Mutation No. 155 and Mutation No. 159 were neither relied upon nor were appended with the written statement. The petitioner was defending his right in the land and had purchased the same in Khata in which the plaintiff was recorded as co-sharer. The respondents similarly were not entitled to yet another opportunity to produce additional evidence.
If an authority be required Allah Ditta v. A.F. Ahmad & Co. And another PLD 1952 Lahore 582 could be referred.
13. The respondents could not be allowed to pester the Courts with repeated applications of the same substance. The lower Appellate Court not only acted in the exercise of its jurisdiction with material irregularity but also failed to afford opportunity to produce any evidence in rebuttal to the plaintiff and as such the impugned judgment whereby the application for additional evidence was allowed suffered from lack of jurisdiction as well.
14. The findings of the lower Appellate Court on Issue No.4 are not supported by material brought on record in accordance with. The impugned judgment of the lower Appellate Court suffers from a material irregularity and also suffers from defect in the procedure provided by C.P.C. And as such is liable to be set aside.
15. Consequently the appeal is accepted. The impugned judgment and decree passed by lower Appellate Court on 15-4-1987 is set aside and the judgment and decree passed by the trial Court on 30-11-1985 is restored.
16 There shall be no order as to costs.