Muhammad Khan etc. Sold their agricultural land measuring 67 Kanals 10 Marlas fully described in the headnote of the plaint, situated in Mauza Bangal, Tehsil Chakwal against sale consideration of Rs.17,000 vide registered sale-deed dated 19-6-1975 in favour of Ghulam Hussain vendee/defendant. The sale was pre-empted simultaneously by two rival pre-emptors Sultan Khan and Painda Khan through two different civil suits in the Court of Civil Judge, Jhelum. Both the suits were consolidated by the learned Civil Judge, vide order dated 4-10-1976 and the suit titled Sultan Khan v. Ghulam Hussain was treated as a (sic) case.
2. On the conclusion of the trial, the learned Civil Judge on 13-6-1978 decreed both the suits in favour of both the rival pre-emptors holding them on same pedestal as far as their right of prior purchase was concerned. It was held that both the rival pre-emptors were to be substituted in place of the original vendee in accordance with their proportionate shares calculated in terms of their original holding and same were the findings in respect of payment of pre--emption money.
3. Sultan Khan the present appellant assailed the judgment and decree passed by the trial Court through Civil Appeal No.288 of,1978 in the Court of District Judge, Jhelum, whereas the other rival pre-emptor Painda Khan remained contended with the findings of the trial Court. The first Appellate Court confirmed the judgment and the appeal as such was dismissed vide judgment and decree dated 25-5-1980.
The present appellant/plaintiff (Sultan Khan) feeling aggrieved by the, judgments and decrees by the Courts below preferred second appeal in this Court which was admitted to regular hearing to examine whether section 17(c) or section 17(e) of the Punjab Pre-emption Act was applicable to the matter.
4. It is an agreed premise that appellant is the owner in the village and his additional claim of being owner in the Patti is neither proved nor asserted during the arguments. As regards his preferential right of pre-emption qua the vendee is an established fact, as a result of concurrent findings of the two Courts below for those have never been challenged by respondent No.2 the rival pre-emptor throughout the proceedings except that he claims to share the land on the plea that he too enjoys the equal status being owner in the village. The controversy is reduced to short point whether respondent No.2 has got equal right of pre--emption to maintain the suit likewise. This controversy in the subject-matter of issue No.2 that as follows:--- (Issue i).--Who among the rival pre-emptors has got superior right of pre-emption inter se and qua the vendee defendant? O. P. D.
5. I have heard the learned counsel for the parties at length and have also perused the record carefully. Both the counsel addressed the Court only on the point of equal right of pre-emption claimed by respondent No.2.
6. It is argued by the counsel for the appellant that respondent No.2, the rival pre-emptor has miserably failed to prove his preferential right of pre--emption qua the appellant as well as the vendee as he has produced no evidence either oral or documentary in support of his contention so much so he has even failed to appear as his own witness. The findings of the trial Court, in favour of respondent No.2 in support of his right of pre-emption are based on no evidence. The respondent No.2/plaintiff was required under the law to prove his case independently without taking advantage of lapses and weakness found in the evidence of the other party because the weakness of defendant's case does not prove the case of plaintiff, It is also urged that the finding of the trial Court, that Sultan, Khan pre-emptor (appellant) has admitted in his statement the ownership of respondent No.2 (Painda Khan) in the village is based on misreading of evidence. Sultan Khan, the appellant, has never admitted the ownership in an unqualified manner rather he showed his ignorance about the ownership in the village at the crucial time of sale. Moreover he has categorically refuted right of pre-emption of respondent No.2 in his written statement. The second piece of evidence that is used in support of respondent's right of pre-emption is the statement of Mukhtar Hussain Patwari who admits in his statement that respondent is also owner in the village.
This witness has also not clarified as to how and when the respondent became the owner in the village and nor he fortified his statement, by any document. This statement does not prove the ownership of the respondent at three stages of the case i.e. At the time of sale, at the time of institution of suit and as well at the time of passing of the decree.
7. From the other side much stress has been laid on the point that the concurrent findings of fact by the two Courts below cannot be disturbed in second appeal. The right of pre-emption is a point of fact and once held to have been established by the two Courts of fact and law both, it stands conclusively proved and cannot be reopened in second appeal. (case-law referred: PLD 1986 Supreme Court 360; 1993 MLD 1591, 1990 M LD 1744, PLD 1976 Supreme Court 202, PLD 1994 Lahore 2020, .1987 CLC 127, 1991 CLC 1783, PLD 1979 Supreme Court 890, 1982 CLC 1128, PLD 1973 Supreme Court 160 and 1986 Supreme Court Monthly Review 183).
8. I have given anxious thought to the points raised, have examined the record and studied the case-law referred to by the counsel from both the sides in support of their respective contentions.
The propositions put forth during the course of arguments are analyzed for purposes of decision hereinafter.
9. It is established from the record that the respondent No.2 (Painda Khan), the rival pre-emptor has failed to appear as his own witness nor he has produced any other oral or documentary evidence in support of his case and to make up the deficiency highlights the weaknesses of the case of the other party for proof of his right of pre-emption qua the vendee and as well the appellant. He also draws support from the statement of Mukhtar Hussain Patwari which is gratuitous in nature and is not based on any documentary evidence. The best evidence what could have been in this case that is the record of rights/copy of Haqdaran Zameen and the statement of the respondent-plaintiff himself whereas both are missing.
10. To establish the right of pre-emption, it is a must for the plaintiff who asserts such right to prove superior qualifications at the date of sale and such qualifications are to remain intact without break or gap till the date of decision of the Court. These essentials for enforcement of right of pre- emption are not complete in the present case. Particularly when there is no evidence either oral or documentary produced by the respondent-plaintiff. The two statements, one of Mukhtar Hussain Patwari produced by appellant-plaintiff and second of the appellant-rival pre-emptor if read carefully, these do not help to prove the right of pre-emption of the respondent in an unqualified manner.
11. There is another aspect of the case as well that cannot be left out without taking notice thereof.
The learned trial Court has relied upon the copy of Haqdaran Zameen for the year 1970-71 in proof of right of pre-emption of the respondent-plaintiff beside the point that this document is of no avail to the respondent/plaintiff as it relates to the period much prior to the sale that took place on 19-6-1975, how this document which neither tendered nor exhibited during evidence in lawful manner can be relied upon. No doubt the document available on the record if for one reason or the other could not be exhibited that can be looked into and considered in aid of justice. But this principle is not applicable in generality. Before taking advantage of this principle and Courts have to see whether the document on the record though not exhibited is a genuine document on the face of it, admissible under the law of evidence and is also brought on the record through due process of law such as it is produced at the first instance alongwith the plaint or if produced subsequently, does that carry permission of the Court under the relevant provisions of Civil Procedure Code otherwise it is not every document that can be looked into or considered merely to fill up the gap or lacuna left by the party on whom burden of proof rests heavily. This principle of law as laid down by the superior Courts can be pressed into service only in aid of justice but upset to all other subject conditions of law. The trial Court as such without examining the nature of the document has hastily relied upon it without any legal basis and the first Appellate Court as well brushed aside this aspect of the case very lightly. The copy of register Haqdaran Zameen for the year 1974-75 i.e. Exh. P-3 brought on the record by the appellant is the most relevant document as it pertains to the time of sale. In this document, the name of respondent/plaintiff figures nowhere in column of ownership. So it appears a case of no evidence from the side of respondent/plaintiff.
12. As regards, the question or interference at the stage of second appeal in the concurrent findings it will suffice to say that whenever the decision under appeal is not based on judicial consideration of the evidence or on incorrect exposition of law, under these circumstances the findings can be interfered with in appeal in the interest of justice. In instant case the finding of fact being not rooted in evidence cannot be treated a sacrosanct.
13. Upshot of the above discussion is that the appeal is accepted and the judgments and decrees dated 13-6-1978 and 25-5-1980 passed by learned Civil Judge, Jhelum and learned District Judge, Jhelum respectively are partly set aside and in consequence thereof the suit of respondent (Painda Khan) fails and the entire suit land measuring 67 Kanals and 10 Marlas situated in Mauza Bangal, Tehsil Chakwal, fully described in the plaint is decreed in favour of Sultan Khan (appellant) on the basis of his preferential right of pre-emption qua the vendee subject to depositing of pre- emption money i.e. Rs.17,000 less one---fifth of the sale consideration if already deposited in the Court within a period of two months from the date of judgment failing which the suit shall stand dismissed. In view of the hardships faced on account of protracted litigation, the parties are left to bear their own costs.