' MUHAMMAD BASHIR JEHANGIRI, J.---This is an appeal with the leave of this Court, against the judgment, and the decree, dated 16-5-1993 whereby R.S.A. No,110 of 1987 was dismissed by a learned Single Judge of Lahore High Court, Bahawalpur Bench.
2. Brief facts of the case are that the pre-emptor-appellant instituted a suit in respect of land in dispute to pre-empt the sale thereof which had been registered on 23-12-1975 in favour of the respondent-vendee for an ostensible amount 'of Rs,1,03,000. The superiority of pre-emptor's right was claimed on the ground of the appellant being collateral of the vendors; being owners in the estate in Khata No,52 and; being a co-sharer in Khata No,2.
3. The suit was contested by the respondent on the assertion that he was possessed of superior right of pre-emption on the ground that the disputed land comprised in his tenancy. It was pleaded by the respondent that the preemptor/appellant was actually seeking to pre-empt the land not for his benefit but for the benefit of Patwari and, thus, the suit had been brought Benami for the benefit of Abdul Wahid, Hazoor Bakhsh and Abdullah, Patwaris.
4. On the pleading of the parties, eight issues were settled but for the purpose of this controversy, the following issues are relevant:--
(1) Whether the plaintiff enjoys superior right of pre-emption qua the defendant vendee ? OPP.
(1-A) Whether the suit is Benami and has been filed for the benefit of Abdul Wahid, Hazoor Bakhsh and Abdullah ? OPD.
(1-B) Whether the defendant effected any improvement over the suit land and incurred any expenditure thereon, if so, what expenditure and with what effect ? OPD.
(1-C) Whether the defendant incurred any expenditure over and above the consideration, if so, the quantum of expenditure and with what effect ? OPD.
(1-D) Whether the plaintiff waived his right of pre-emption in view of preliminary objection No,2 of the written statement ? OPD.
5. The learned Senior Civil Judge, Rahimyar Khan, who was seized of the matter, held on issue No,1 that "Plaintiff (appellant) enjoys superior right of pre-emption qua the defendant-vendee relating to purchase of the suit land" inasmuch as the appellant had successfully established his claim to collateralship with the vendor on the ground of pedigree-tables Exh.P.1 and Exh.P.2. And answered the issue in the affirmatives.
6. On the question of Benami, of the suit pre-emption, the learned Senior Civil Judge, after appraising the evidence, concluded that the suit was not Benami for any other person but had been filed by the appellant for his own benefit and, thus, issue No,1 was answered against the respondent. On issue No,1-B, it was held that there was no valid material on the record suggesting that the respondent had incurred any expenditure on the alleged improvements made in the suit land and that, if at all he effected the same, after the institution of the suit, he did so at his own risk which disentitled him to receive any amount from the appellant towards the alleged improvement charges. On issue No,1-C, covering the overhead charges which were declined to the appellant on the ground of having enjoyed the income of the suit land for a period of over five years. On issue No,1-D, it was held that the respondent had failed to establish by cogent evidence the plea of waiver., attributable to the respondent. As a cumulative effect of the finding on the aforenoted issues and on the other issues, the suit was decreed in favour of the appellant on the payment of Rs,1,03,000 as pre-emption money.
7. The vendee-respondent, feeling aggrieved filed an appeal before the learned Additional District Judge-IV, Rahim Yar Khan. The learned Appellate Court while deciding issue No,1 observed that in order to prove himself as collateral of the vendors, the appellant had examined the oral evidence of Ghulam Hussain (P.W.1) and Sultan Ahmed (P.W.2) who had also recited the pedigree-tables from which it transpired that there were two person by the name of Haji Khan mentioned by the P.Ws. But "it had not been explained as to who that Haji Khan was". In so far as the claim for the respondent being a tenant over the suit land was concerned, the evidence of Sultan Khan one of the vendors appearing as P.W.2 was referred to who was also the grandfather of the witness and his testimony was found contradictory to the evidence of Ghulam Hussain P.W.1 on the question of the pedigree-table recited by both the witnesses. The learned Appellate Court thus concluded that the witnesses, by their own showing, had not been able to prove the relationship between the vendors and the pre-emptor as their information on material points was either lacking or wrong.
Similarly, the pedigree-table Exh.P.1 and Exh.P.2 were also found deficient to establish the claim of the appellant's collateralship with the vendors. Likewise the claim of the appellant that he was co- sharer in Khata was based on Mutation copy Exh.P.3 which was found to be not worthy of reliance.
' The claim of the respondent that the land in dispute was comprised in his tenancy, it was observed by the learned First Appellate Court, that if at all the respondent was not "considered to be a tenant over the land in Khata No,52 of 1953, even then the appellant had no better pre- emptive rights over the suit land" who has neither claimed to be a co-sharer in the said Khata nor he is proved to be a collateral of the vendors. The finding of the learned trial Judge on issue No,1 were, thus, reversed holding that the appellant had not better preemption right qua the respondent.
8. The learned Appellate Court then addressed itself to the findings of the learned trial Court on issue No,1-A, relating to the objection of the respondent that the suit filed by the appellant was Benami and had been brought for the benefit of his relatives who were Patwaris. In this context, the evidence was reappraised in its entirety. The learned Appellate Court observed that the allegation of the pre-emption suit being Benami could not always be proved by any direct evidence and that usually inferences are drawn from the circumstances and the assertions made in the pleadings and the evidence led thereon. The learned. Appellate Court after re-appraising the evidence in its entirety on the plea of the suit being Benami concluded thus:- "The appellant discharged his onus on the above issue to the full extent and the demeanour of the respondent and Patwaris while appearing as P.Ws. Is such that the objection of the appellant proves to be correct. The finding of learned trial Court on issue No,1-A, therefore, reversed and the same is decided in the affirmative."
9. In so far as issue No,1-B is concerned, again after lengthy discussion and perusal of material brought on the record by the parties, the learned first Appellate Court held as under:-- "I hold that the appellant incurred an amount of Rs,59,100 on the improvement of the suit land and in case of decree, he is entitled to get the same."
10. The findings of the learned trial Court on issue No,1-C were, however, upheld by the first Appellate Court. Similarly, issued No,1-D was also found against the respondent and the conclusion of the learned trial Judge on this issue was upheld.
11. On the basis of his findings on issues Nos.1 and 1-A, therefore, the appeal was accepted by the learned First Appellate Court, the impugned judgment and the decree passed in favour of the appellant was set aside and in consequence, lie was non-suited.
12. Feeling dissatisfied, this time the appellant challenged in R.S.A. No,110/87/BWP the judgment, and the decree non-suiting the appellant. The learned Single Judge in the High Court observed on issue No,1 that the two witnesses, namely, Sultan Khan and Khuda Bukhsh "(P.W.2) and (P.W.3)" respectively who were examined to prove the claim of the appellant being collateral of the vendors could not properly be linked up with their common, ancestor." Similarly, the pedigree-table Exh.P.2 was held to be related to a different family under caption "68, 69, 70, 71 and 72" as the lines drawn in between the said numbers indicate, whereas the other predigree-table Exh.P.1 related to a different family under caption No,26." The learned Single Judge thought that "the numbers were given to indicate proprietorship in Khewats but this much is clear that the pedigree-tables do not link the appellant with the vendors up to common ancestor and the oral evidence on the subject also does not help the appellant". The learned Single Judge in the High Court affirmed the view of the learned First Appellate Court that the appellant has not been able to establish his collateralship with the vendors. Likewise the learned Judge in Chambers maintained the finding of the learned First Appellate Court that the, respondent had succeeded to prove his claim that the disputed land was comprised in his tenancy. The finding of the learned Appellate Court on issue No,1 was thus affirmed.
13. According to the learned Single Judge in the High Court the case of the respondent was that Abdul Wahid, Hazoor Bakhsh and Muhammad Ahdullah Patwaris were the real beneficiaries of the litigation. After re-appraising the evidence the learned Judge in Chambers observed that:-- "Niaz Muhammad who had got the bargain of the land in question struck was not cross-examined nor any suggestion was put to him except general question that he has given false evidence which was denied. Abdul Majid (D.W.2) also was not cross-examined on the subject. He too was perfectly independent witness and no suggestion was put to him to retract anything from his testimony.
Similarly the evidence of Muhammad Tufail (D.W.5) remained unimpeachable. Uncrossed evidence of D. Ws. 1 and 2 was to be believed. The respondent was also not cross-examined when he stated that the preemption money was also deposited by the Patwaris in his presence. The interest of the Patwaris in the case was so intense that they in spite of being public servants appeared of their own without being summoned by the Court. Then the appellant was so ignorant about the affairs of this case that he did not know the quantum of pre-emption money deposited in the Court claiming himself to be an illiterate person but had signed the plaint and also the stamp paper which proved that he was in the habit of suppressing the truth. He also told lie that the Patwaris had been summoned by the Court whereas in fact the observation of the Court is that they had not been summoned by the Court which means that they had come to the Court of their own. And so because they were the beneficiaries of the litigation. The learned Additional District Judge in the circumstances could conclude on the evidence brought before him that the said Patwaris had not only financed the litigation but were also the real beneficiaries. This issue was also rightly answered."
' Syed Inam Hussain, learned Advocate Supreme Court in support of this appeal raised the following contentions:-
(i) that the learned Judge in Chambers of the High Court was not justified to read the oral evidence establishing a common ancestor between the parties in isolation from the pedigree-tables produced by the preemptor/appellant, as against the finding of the learned trial Judge that the relationship between the parties stood clearly established through a common ancestor;
(ii) That the learned Judge in Chambers was not legally justified in construing the Khasra Girdawari Exh.D-10, wrongly inasmuch as neither any Khata nor any Khewat had been recorded in the Khasra Girdawari and, therefore, the tenancy of the respondents over the suit land could not be substantiated from the Khasra Girdawari;
(iii) That the learned Judge in Chambers was not justified in holding on issue No,1-A that the nature of the suit was Benami as the appellant had filed the same for the benefit of his relatives as no law existed on the statute book wherein a pre-emptor could be deprived of his right of preemption and that in any case, there was no evidence worth reliance on the record that the suit was Benami and;
(iv) that the learned Judge in Chambers was not justified in upholding the finding of the learned Appellate Court on issue No,1-B covering the claim of the respondent on the improvements of the land.
' There was no counsel on behalf of the respondent who could assist us in this matter.
14. The superior right of pre-emption of the appellant was denied on the ground that the appellant was neither collateral of the vendor nor was possessed of the right of co-sharership in the Khata.
The two witnesses on whose deposition reliance was placed by the learned counsel for the appellant had recited only two pedigree-tables between the appellant and the vendor. The general proposition is settled that the evidence of relationship would only be admissible if foundation of such evidence has been laid by the parties who call for its admission. The recital of the pedigree-tables orally without laying any foundation therefore would be an effort in futility. The ocular evidence of the two witnesses appears to be tutored one and that is why there are certain contradictions between the two. We find that the oral evidence in the instant case is not only vague and deficient but also biased. It is certainly suffering from the infirmity of incompleteness.
15. The requirement of Article 64 of the Qanun-e-Shahadat corresponding to section 50 of the repealed Evidence Act, is that when the Court has to form an opinion as to relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. In fact it is the opinion expressed by conduct, of any person who has special means of knowledge about the relationship, which has been declared to be relevant. On examination of the statements of Ghulam Hussain and Sultan Ahamd P.Ws. We find that they had only narrated the pedigree-tables which evidence, according to law, was not in conformity with the provisions of the Article 64 of the Qanun-e-Shahadat corresponding to section 50 of the repealed Evidence Act. Similarly, we agree with the learned Judge in Chambers who upheld the finding of the learned First Appellate Court that the Pedigree-tables Exh.P-1 and Exh.P-2 were deficient to establish the claim of the appellant qua his relationship with the vendor. Similar is the case with his assertion that he was co-sharer in Khata which had been based on a copy of mutation Exh.P-3 which was not found to be worthy of reliance and rightly so. The claim of collateralship as also co- sharership made by the appellant and further finding of the First Appellate Court and the learned Judge in Chambers that land in dispute was comprised in the tenancy of the respondent and, thus, the question whether the appellant had the superior right of preemption is a pure question of fact based on proper appreciation of evidence and maintained in the R.S.A. By the High Court cannot be upset in this appeal. No, ground, therefore, is made out to. Interfere in these findings. This disposes of the first two contentions.
16. We are aware of case-law from Lahore jurisdiction, both old and new one, that strong and clear evidence is required to prove that the object of the preemptor is really to secure the land for someone else. Again this is a question of fact. The First Appellate Court and then the learned High Court in exercise of its jurisdiction in the R.S.A. Have come to the definite conclusion that the appellant has not brought the suit for pre-emption for himself but he had so done for the benefit of Hazoor Bakhsh, Wahid, and Abdullah Patwaris who are his relatives. We find that in deciding this question of fact, the learned two Courts have reappraised the entire evidence and have come to a definite conclusion and indeed for cogent reasons, that the appellant had brought the suit Benami for the benefit of the three named persons. We also agree with the observations of the learned two Courts that in such like cases, it is really not possible to lead direct evidence; it is the circumstances from which proper inference of the nature of the suit is drawn. Such circumstances have been noticed by two learned Courts and recorded a finding of fact which cannot be interfered with by us in our appellate jurisdiction.
17. As a result of the conclusions arrived at by us, the appeal has no merit and stands dismissed.
We shall, however, leave the parties to bear their own costs.