' This civil revision application is directed against concurrent findings of fact arising out of a suit for pre-emption brought by respondent Syed Mumtaz Ali against applicants Nabi Bux and another as well as second respondent Ghulam Ali.
2. Facts in a nut shell leading to this litigation going on for the last one decade, appear to be that applicants Nabi Bux and Punhal purchased a Plot of land bearing No,D-1519/7 measuring 111-2 square yards situated at Shikarpur Road in Sukkur town from respondent Ghulam Ali. Respondent No,1 claiming to be the owner of adjoining Plot bearing No,1519/1 to 5 filed a suit for pre-emption of the Plot No,1519/7 as recognized by Muhammadan Law. He pleaded both the demands asserting his right to preempt the suit plot as permitted by Muhammadan Law by reason of Shafi-eJar and Shafi-e-Khalit. Applicants contested the suit and filed parawise written statement raising several questions of fact and law. On his part, respondent Ghulam Ali filed a separate written statement taking the position that he had sold only 111-2 square yards out of the plot in all measuring 1283 square yards. He pleaded that as the plot had been bifurcated in two parts and numbered as 1519/7 and 1519/7/1 respectively applicants were not entitled to pre-empt the plot in suit. On the pleadings of the parties trial Court settled following issues:
(1) Whether the suit is maintainable in law?
(2) Whether the suit Property bearing C.S. No,D-1519/7 is adjoining the Property of the plaintiff bearing C.S. No,D-1519/1 to 5 subject to pre-emption?
(3) Whether the plaintiff has made prescribed demands of Talabs under Muhammadan Law within time?
(4) Whether the Property bearing C.S. No, D-1519/7 purchased by defendants Nos.1 and 2 is separate from C.S. No,D-1519/7-1 and is not subject to pre-emption?
(5) Whether the suit is barred by laches and law of acquiesence?
(6) Whether the suit property is commercial which is not subject to preemption?
(7) What should the decree be?
3. Applicants as well as respondent No,1 adduced the evidence in support of their respective contentions, whereas respondent Ghulam Ali did not enter witness-box. On consideration of the relevant evidence on record learned Senior Civil Judge decreed the suit for pre-emption, which was impugned in Civil Appeal No,47 of 1998. The appeal preferred by the, applicants was dismissed by learned Additional District Judge, Sukkur giving rise to the present revision application.
4. Mr. Haji Memon Abdul Latif learned counsel for the applicants has raised the following contentions;
(i) That the respondent No,1 failed to establish that he is the owner of the adjoining piece of land inasmuch as his plot and the plot in dispute, are divided by a piece of land measuring 17-1 sq.
Yards entered in the Property Register card as 1519/7/1.
(ii) That the respondent No,1 being owner of the property to the extent of 50 paisa share could not assert his right to pre-emption against the applicants.
(iii) That right of pre-emption is not avail to a person under the Muslim Law in respect of a commercial property.
(iv) That the both Courts below failed in taking the view that the suit was filed within time though it was barred by time.
(v) That both the judgments and decrees suffer from misreading of evidence and inasmuch as Talab-i-Mowasibat and Talab-i-Ishhad were not made by respondent No,1 strictly in consonance with the requirements of Muhammadan Law.
(vi) That the Application under Order 41, Rule 27 moved before the Appellate Court seeking to adduce additional evidence, was wrongly declined.
5. Conversely Mr. Abdul Naeem, learned counsel for respondent No,1 vigorously contended that - respondent No,1 is undoubtedly owner of the immovable property adjoining the plot in suit; that even a co-owner in a property can assert the rights to pre-emption; that in terms of para.226 of Muhammadan Law there is no bar to assert a right to property used for commercial purposes; that the suit was filed within time; that both the Talabs were made strictly according to law and the judgments of the two Courts below, do not suffer from any illegality or material irregularity on account of misreading of evidence and lastly that the applicants having not pleaded material facts could not be permitted to lead any additional evidence before the First Appellate Court which prayer was rightly declined.
6. Adverting to the first contention of the learned counsel for the applicants it may be observed that the sketch map in respect of two plots clearly tends to show that both the plots are situated in close proximity of each other and are rather adjoining each other which dispels the contention of the learned counsel for the applicants. There is overwhelming and unimpeachable evidence on record to suggest that the property in suit and the property of the respondent No, 1 was divided by a wall. It was only during the pendency of the .Suit that respondent No,2 in connivance with the applicants split up City Survey No, 1519/7 in two portions and transferred an area of 17 square yards in favour of Mst. Hazooran. While in the written statement filed by respondent No,2 it was pleaded that this piece of land was sold out to Mst. Hazooran on 26-12-1993 in the evidence it transpired that this piece of land was gifted out to her whereas the suit was filed on 26-12-1990. This device apparently was adopted with a view to defeat the claim of the pre-emptor which can hardly be justified and defended in a suit for pre-emption which right by now has been declared as a substantial right. Accordingly the submission of the counsel is without any merit and substance.
7. Taking up second submission of the learned counsel attempting to show that respondent No,1 being not full owner of the adjoining property was disentitled to claim the right of pre-emption conferred under the Muhammadan Law, suffice to say that no doubt respondent No,1 is co-sharer in the property. To the extent of 50 paisa share but no other person has challenged his right and title to claim the pre-emption in respect of the suit land. On the language of paras. 226 and 231 of the Muhammadan Law as compiled by various eminent jurists it is difficult to subscribe to the view of the learned counsel in the absence of any restriction imposed by law. No proposition contrary to the view expressed by me has been canvassed and speaking for myself there is no authority for the proposition canvassed by the learned counsel in this revision application. Learned counsel referred to Single Bench decision in Iftikharuddin v. Jamshed K.A. Marker (PLD 1995 Karachi 608) viewing that as in between plaintiff's property and property in question there was admittedly lane which belonged to Government and was being enjoyed by all, it was held that such fact would disentitle the plaintiff to claim himself as adjacent neighbour of property in question which was one of the important qualifications to claim pre-emption. There can hardly be any cavil with the view taken in the reported case but the fact of the matter remains that the two Courts below have found the respondent No,1 as owner of the adjoining plot of land. Such finding of fact does not suffer from any inherent defect or misreading of evidence. Cited case is, therefore, of no avail to the applicants.
8. Adverting to the third contention of the learned counsel suffice to say that law of pre-emption as envisaged by the Qur'an and Sunnah does not restrict this right td immovable properties other than commercial properties. In fact various shops, godown and showrooms have been the subject-matter of suits for pre-emption which have been decreed and upheld upto the level of the apex Court. Even the law relating to pre-emption in the Province of Sindh does not lay down any restriction to this effect. However, learned counsel has referred to a Single Bench decision in M.R.
Sons v. Junaid Associates (Pvt.) Limited (PLD 1990 Karachi 387) relating to a suit for preemption in respect of a plot of land situated in a cooperative Society. In the reported case learned Single Judge after elaborately dealing with the interpretation of the expressions "owner", "ownership of property" and "property" in the context of plots allotted by Cooperative Societies to their members observed that in large cities such as Karachi, the land in most of the cases as in the present one, is acquired by Cooperative Societies on the basis of perpetual lease and it is then allotted in the form of plots to its members. The societies are governed by their bye-laws and, therefore, right of preemption cannot be invoked by one member of the society against another.
' Learned Judge observed that the right of a member of a Cooperative Society to sell his property to another member can be subjected only to such restrictions as are placed therein by the bye- laws of such society and the right to transfer or sell such property cannot be subjected to restrictions imposed by the law of pre-emption. As the aforesaid view was expressed in an entirely different set of circumstances I am not persuaded by the argument of the learned counsel and with utmost regards for the learned Single Judge do not feel inclined to follow the suit. It is well- settled that the rights conferred by law can neither be curtailed nor enlarged in the process of interpretation of legal position. I am, therefore, inclined to the view that the claim of respondent No,1 in respect of the plot in suit was rightly upheld.
9. Taking up the fourth contention of the learned counsel that the suit was filed beyond period prescribed by law, it may be observed that this plea was not expressly raised in the written statement filed by the applicants in the trial Court. For this reason no issue as to the bar of limitation was struck down. Issue relating to the suit being hit by laches and acquiescence was no doubt settled but answered against the applicants. In the face of concurrent findings of fact by two Courts there is nothing substantial on record to upset such finding which is neither contrary to the evidence on record nor perverse nor does it suffer from misreading or non-reading of evidence.
Suffice it to say jurisdiction of the revisional Court essentially extends to the corrections of errors of law and not to substitute findings of fact recorded by the Court below.
10. Reverting to fifth contention of the counsel I am satisfied that both the Courts below have rightly concluded that Talab-e-Mowasibat and Telabe-Ishhad were made by respondent No,1 with utmost promptitude and without the loss of time. Having found such evidence reliable and inspiring confidence and rightly accepted by the Courts as such finding is neither whimsical nor unwarranted by evidence or perverse, in the absence of any particular instance to suggest the contrary I do not find any force in this submission of the learned counsel which must be ignored.
11. Lastly learned counsel was at pains to persuade me to hold that the First Appellate Court acted illegally in declining to adduce additional evidence as suggested by the applicants. In this connection learned counsel for respondent No,1 strenuously contended that in fact no such plea was raised by the applicants in the pleading and, therefore, appellate Court was perfectly rights in disallowing such evidence in the absence of any pleading or issue on such aspect of the case. In order to satisfy myself I have gone through the written statement of applicants spread over relevant paragraphs, five additional pleas and spread over six pages but no issue relating to the faith of respondent No,1 was taken. Applicants and for that matter even respondent No,2 having not raised any question of respondent No,1 belonging to Shia sect are not in law entitled to urge at the appellate stage to raise this new plea of fact. It has been consistent view of the superior Courts that generally Muslims living in this part of the country belong to Sunni sect with exceptions. Since no plea was raised in the pleadings and no question was put to the respondent No,1 nor any circumstance shown to exist on the face of the record I am of the considered view that the appellant Court was justified in refusing the prayer for recording additional evidence at the stage of appeal which would otherwise deprived the respondent No,1 of a valuable right accruing in his favour by reason of a judgment and decree. In law a party to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court unless the appellate requires any document to be produced or any witness to be examined to table it to pronounce judgment or for any other substantial cause. Another ground for permitting additional evidence is that the Court of original jurisdiction as refused to admit evidence which ought to have been admitted.
12. For all these reasons there is no merit in this revision application which must fail and is hereby dismissed in limine.