SYED JAMSHED ALI, J. - This is vendee's second appeal arising out of a suit for pre-emption. Oral sale dated 8.11.1967 affirmed by a decree of the Court dated 8.12.1967 of house No. T-46-B, in Bhakkar Town for a consideration of Rs. 15,000.00 was pre-empted by Muhammad Yar plaintiff- respondent on the ground of contiguity.
2. The suit was contested by the appellant-vendee on the ground that the pre-emptor-respondent did not on the house on the basis of which he was claiming preferential right nor the said house was contiguous to the property sold. The existence of custom was also in issue before the learned Trial Court apart from the sale consideration, which according to the plaintiff-respondent was not more than Rs.6,000.00.
3. The learned Trial Court held that the existence of custom was established but the respondent had failed to prove that he was the owner and that his house was contiguous. The learned Trial Court dismissed the suit vide judgment dated 11.2.1974. On appeal of the plaintiff-respondent, the learned Addi. District Judge reversed the findings of the learned Trial Court regarding ownership and contiguity of the house of the plaintiff on the basis of Ext. D.I copy of the plaint, in which the decree dated 8.12.1967 was passed which showed the house of the plaintiff on the north of the property sold.
4. On the issue of consideration the learned Addl. District Judge was of the view that learned Trial Court altogether omitted from consideration the report of the Local Commissioner who was appointed by the learned Trial Court itself. According to his report the market value of the disputed property was Rs.6400.00 with Rs.400.00 as cost of improvement.
5. The learned counsel for the appellant vehemently contended that Ext. D-1, copy of the plaint on the basis of which the oral sale was affirmed by decree dated 8.12.1967 (Ext. P-1), was not admissible in evidence because it was at the best a previous statement of the appellant. He also assailed the findings of the learned Addl. District Judge as to the sale consideration.
6. Learned counsel for the appellant further contended that although the plaintiff claimed the property through transfer by Settlement Authority but no order of transfer was produced on the record. Thus, he withheld the best evidence dis-entitling him to the by the learned Addl. District Judge.
7. Learned counsel for respondent has contended that Ext. D-1 not only established contiguity but also contained an implied admission on behalf of the vendee that the plaintiff was owner of the house on the basis of which he had laid his claim for pre-emption.
8. Learned counsel appearing for the pre-emptor-respondent invited my attention to the P.T.D, which is on the record which shows transfer of the house in favour of the respondent-plaintiff.
There is an application dated 11.2.1974 on the record filed by the plaintiff in which a request was made for allowing production of the P.T.D, alongwith the site plan. This application was presented on 11.2.1974. Learned Trial Court rejected the said application on the ground that it had been presented after the judgment had been announced. Learned counsel for the plaintiff also relied on the report of the Local Commissioner according to which the house in question was owned by the plaintiff-pre-emptor and was contiguous to the property sold.
9. As far as title of the plaintiff to the house, basis of the preemption suit, is concerned he appeared in the witness-box and on being questioned in cross-examination explained that he had purchased the said house from the Settlement and Rehabilitation Department. This part of the statement was not questioned by the appellant-vendee. As far as the P.T.D, is concerned, it was produced before the learned Trial Court on 11.2.1974, the date on which the suit was dismissed. This P.T.D, is original, and is a public document of undisputed authenticity and in accordance with the rules laid down in Muhammad Versus Allah Ditta (1990 CLC 765) and Messrs Bisvil Spinners (Pvt.)
Ltd. Versus Pakistan through Secretary, Ministry of Finance, Islamabad and two others (PLD 1992 S.C.
96), can be looked into.
10. As far the question of contiguity is concerned, learned counsel for the respondent relied on Ext.
D.I, the plaint in the suit through which the sale in question was affirmed. He also submits that Muzammal Hussain Chakari, Advocate was examined as DW-7 who duly proved the contents of Ext.
D.I. He also relied on the decree Ext. P-1 which gives out the description of the house of the plaintiff and the disputed house.
11. I have noticed that PW-3, the plaintiff, claimed that. The house in dispute was contiguous to his house. This statement was not challenged in cross-examination. It is settled law that a statement which is not challenged will be deemed to have been accepted. The appellant did not appear in the witness-box. Therefore, no occasion arose to confront the appellant with the plaint Ext. D.I. In any case, the decree Ext. P-1 also confirms the same description and is per se admissible. On the question of ownership and contiguity of the house, the plaintiff-respondent is supported by Babu Allah Bakhsh Versus Hakim Muhammad Abdullah and others (PLD 1961 (W.P.)
12. On the basis of the material on record, I am satisfied that the plaintiff-respondent was able to establish his case.
13. As far as the issue regarding sale consideration is concerned, learned Appellate Court has relied upon the report of the Local Commissioner who was appointed for this purpose. Report of a Local Commissioner is evidence in the suit in accordance with the provisions of Rule 10 of Order XXVI of the CPC. The learned first Appellate Court has preferred it to the oral evidence of D.Ws as to sale consideration. No exception can be taken thereto.
14. Learned counsel for the appellant also contended that according to the interim order dated 11.2.1974 the plaintiff was required to make up the deficiency in the Court-fee before 11.3.1974 and according to him the Court-fee stamp was filed on 11.3.1974 instead of 10.3.1974. Therefore, the suit stood dismissed. This question does not appear to have been raised before the learned first Appellate Court, The Court-fee supplied by the plaint-appellant was accepted by the Trial Court.
Be that as it may, I allow extension to file Court-fee by one day.
15. For what has been stated above, the appeal has no merit and is accordingly dismissed.