TASSADUQ HUSSAIN JILANI, J.-- This regular second appeal calls in question the concurrent judgments and decrees in a preemption suit i.e. Judgment and decree of Trial Court dated 23.4.1 985 vide which suit was decreed and that of the Appellate Court dated 5.1.1 989, whereby the same was affirmed.
2. Facts giving rise to this appeal are that the land subject- matter of this appeal was purchased by the appellants from Aziz Ahmad through a Court decree dated 18.6.1973 for a sum of Rs.1,82,000/-. This sale was challenged through two separate pre-emption suits one find by Ali Muhammad and others who claimed superior right on the basis of being tenants and by Mst.
Zainab Bibi who claimed to be mother of the vendor and owner of the Estate. The suits were contested and in terms of the divergent pleas following issues were framed:-- issues:
(1) Whether the pre-emptors in both the suits have got superior right of pre-emption. If so, in what order of precedent? O.P. Pre-emptors.
(2) Whether the suits are correctly valued and proper Court- fee paid, if not what is the correct valuation and * deficiency of Court-fee? O.P. Pre-emptors.
(3) Whether the suits are within limitation? OP Pre-emptor.
(4) Whether the description of the suit land is incorrect, if so, its effect? OPD Vendees.
(5) Whether the suits are bad for partial pre-emption? OPD Vendees.
(6) Whether the suit of Mst. Zainab Bibi etc. Is collusive and has been instituted for the benefit of the vendor? OPD. Vendees.
(7) Whether the suit of Ali Muhammad etc. Is also collusive, of so, how and to what effect? OPD Rival-Pre-emptors.
(8) Whether the ostensible sale price amounting to Rs. 1,82,000/- was find in good faith or actually paid? OPD Vendees.
(9) Market value, if the ostensible sale price is not proved? OPD Parties.
(10) Whether the vendees/defendants also spent a sum of Rs.1000/- on getting a decree of the suit land and. Rs.1820/- on payment of District Council fee? If so, whether they are entitled to the rebursement thereof? OP Vendees.
(10-A) Whether the defendants Nos. 9 and 10 effected any valid improvements over the suit land and are entitled to compensation? If so, to what extent? OPD. 9 and 10.
(10-B) Whether defendants Nos. 9 and 10 spent any amount towards registration of the sale-deed and that tax? Whether they are entitled to any compensation? If so, to what extent? OPD. 9 and 10.
(11) Relief.
3. The learned Trial Court having consolidated the them and inter se the pre-emptor Mst. Zainab was declared to have superior right of pre-emption. This was vide judgment and decree dated 23.4.1985. The learned District Judge, Layyah dismissed the appeal of the appellants vide judgment and decree dated 5.1.1 989 but upheld the judgment and decree of the learned Trial Court only to the extent of Mst. Zainab Bibi, respondent/plaintiff as the other rival pre-emptor did not appear in appeal. Before this Court only issue No. 1 was pressed i.e. Whether the pre-emptors in both the suits have got superior right of pre-emption, if so, in what order of precedence? OPP.
4. Learned counsel for the appellants in support of the appeal made the following submissions:--
(1) That the respondent/plaintiff Mst. Zainab Bibi failed to prove that she was mother of vendor Abdul Aziz to claim superior right of pre-emption, In the title of the plaint she described herself as wife of Noor Muhammad whereas Aziz Ahmad vendor was shown as son of Nazir Ahmad in para two of the plaint, In the plaint there is no explanation that she at any stage married Nazir Ahmad after the death or divorce of Noor Muhammad and Aziz Ahmad vendor was son from the second wedlock. The plea was incomplete and is fatal to her case. Reliance was placed on the law laid down in Ghaus Bakhsh v. Chief Election Commissioner of Pakistan (PLD 1 969' Kar. 662).
(2) That the best evidence to prove that relationship of the plaintiff Mst. Zainab Bibi with vendor Aziz Ahmad was herself but she never appeared in support of this plea during the trial. The failure of the plaintiff to appear merits an adverse presumption-, In support of this contention learned counsel relied on Feroz Khan and others v. Mst. Waziran Bibi (1987 SCM R 1647).
(3) That the appearance of PW.3/8 Aziz Ahmad is of no avail to the plaintiff on the question of relationship as the question whether she gave birth to him or not could best be answered by her and not Abdul Aziz.
(4) That having closed affirmative evidence on 17.7.1978 the respondent-plaintiff could not produce DW.4/8 either in affirmative or in rebuttal. Reliance is placed on Al-Haj Khalil Ahmad v. The Australasia Bank Ltd., Lahore and another (1 979 CLC 494).
(5) That to prove that Mst. Zainab Bibi was mother of Aziz Ahmad, vendor neither any birth certificate was produced nor Nikahnama evidencing Mst. Zainab Bibi's Nikah with Nazir Ahmad, in absence of which no presumption could be drawn in her favour with regard to issue No. 1.
5. Learned counsel for the respondent/plaintiff Mst. Zainab Bibi, on the other hand, supported the impugned judgment and decree and submitted as under:-
(i) That the appellants/defendants never .Challenged the relationship of Mst. Zainab Bibi with Abdul Aziz, vendor, either in the written statement or by leading evidence.
(ii) That the question whether Abdul Aziz, vendor was son of Mst. Zainab Bibi is a question of fact which cannot be re-opened in regular second appeal.
6. Heard.
7. Neither before the learned Trial Court nor before the learned lst Appellate Court anyone appeared on behalf of the rival pre-emptors to pursue their case, In fact the observation of the learned lst Appellate Court was that Ali Muhammad, etc. Did not deposit the pre-emption money and they in fact withdrew 1 /5th of the pre-emption amount. They did not even challenge the judgment and decree passed in favour of the Mst. Zainab Bibi. They are, therefore, proceeded ex parte.
8. The learned Trial Court decreed the suit in favour of Mst. Zainab Bibi plaintiff on the basis of its finding primarily on issue No. 1 and the reasoning given is as under:- "In support of her case on this issue she has examined DW.2/8 Mehr Abdul Hameed, Advocate, DW.3/8 Aziz Ahmad, vendor, DW.4/8 Mehr Abdul Qadir.
It was revealed that Mst. Zainab Bibi was married with vendor's father who had died subsequently she married with vendor's uncle.---''
This finding was affirmed by the learned lst Appellate Court and it was held as under:- "Aziz Ahmad, vendor appeared as DW.3/8 and he stated on oath that Mst. Zainab Bibi, pre-emptor was his real mother. This assertion in the statements of these two witnesses of the pre-emptor was not challenged by the vendee/defendants in cross-examination. They only confined their cross- examination on the point of collusion in filing the suit and the price paid. Mehr. Abdul Qadir appeared as DW.4/8 as attorney of the pre-emptor. He stated that the pre-emptor was ill and she could not come to the Courts to depose. He deposed with regard to relationship of the vendor with the pre-emptor and stated that they were real sons of mother inter se.
Even his assertion on this point was not challenged v during the cross-examination by the appellants/defendants.--"
9. Both the Courts below by relying on the evidence of DW.2/8, DW.3/8 and DW.4/8 on Issue No. 1 have fell in error as the best evidence on the relationship of Mst. Zainab Bibi with the vendor Abdul Aziz was Mst. Zainab Bibi herself. Her non- appearance would raise serious presumption against the plaintiff. In Feroz Khan and others v. Mst. Waziran Bibi (1987 SCM R 1647) the fact of non- appearance of the plaintiff as their own witness particularly on question of relationship was commented upon and at page 1648 it was held as. Under:- "In the circumstances the High Court was justified in drawing an adverse inference ^against Adalat Khan and Feroz Khan for not appearing in the witness-box in support of their assertions of fraud and non-payment of consideration and thus offer themselves for cross- examination of the opposite side, It is unnecessary tb comment upon the reported cases cited by the petitioners as, on facts, they can be easily distinguished from the one before us....'.
This view was reiterated in Muhammad Naveed and others v. Ghulam Muhammad and others (1994 SCM R 559).
10. The statement of DW.4/8 Mehr. Abdul Qadir as the alleged attorney of Mst. Zainab Bibi was not legal evidence which could be considered and relied upon firstly because no power-of- attorney was placed on record to show that he validly represented Mst. Zainab Bibi, secondly, it is not denied that the plaintiff had closed her affirmative evidence on 17.7.1978 and DW.4/8 was produced on 30.3.1981 which is not tenable in law and is against the spirit of Order XVIH, Rules 1 and 3, CPC. In Al- haj Khalil Ahmad v. The Australia Bank Ltd., Lahore and another (1979 CLC 494), it was observed at page 497 as under:- "If the plaintiff therefore fails to prove any of the above issues by affirmative evidence, there will be nothing required to be enquired into the matter. Since the plaintiff had to prove the above issues, he had to begin the evidence, and, in fact, had begun the same, but before completing the whole cf the evidence in the affirmative, part of it was sought to be produced after the evidence of petitioner-defendant by reserving the right. As already pointed out above, the conjunctive reading of Rules 1, 2 and 3 of Order XVIH, CPC, clearly shows that where the onus of proving some of the issues lies on the plaintiff, it is the plaintiff who has to begin the evidence on such issues and conclude the same thereon and may reserve evidence on such issues only the onus of proving of which lies on the defendant."
This view was reiterated in yet another judgment reported in Murid Hussain v. Muhammad La! (1987 CLC 101).
10. The observations of both the Courts below that the testimony of DW.2/8 and DW.3/8 qua the relationship was not challenged in cross-examination is against the record as both these witnesses were specifically suggested that Aziz Ahmad vendor was son of Mst. Nooran Mai and not Mst. Zainab Bibi. The credibility of DW.3/8 Aziz Ahmad who claimed to be the son of Mst. Zainab Bibi stood shaken when he could not tell even the approximate age of Mst. Zainab Bibi. A person who claimed to be the son of a lady about whose age be could not say a word could not be a credited with reliance.
11. There is force in the contention of the learned counsel for the appellants that the plaintiff Mst.
Zainab Bibi's claim to be mother of vendor Aziz Ahmad was in-consistent inasmuch as on the first page of the plaint she is described as Mst. Zainab Bibi wife of Noor Muhammad whereas, in para 1 of the same plaint Aziz Ahmad, the vendor is shown as son of Nazir Ahmad. There is no explanation in the plaint as to how she became the wife of Aziz Ahmad. This in-consistent plea is not in- consonance with the mandate of Order VI, Rule 2, CPC. In Ghaus Bakhsh v. Chief Election Commissioner of Pakistan (PLD 1969 Kar. 662). Relying on the precedent case-law it was observed as under at page 679:- "The principle that a plea should be complete is expressed in Order VI, Rule 2, CPC, as follows: "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleadings relies for his claim or defence, as the case may be "
The words underlined by us should be noted, It may also be noted that an incomplete plea is much more objectionable than an imprecise plea, because, as pointed but by Scot, L.J. In Brook v. Adam Press Ltd A 1)
"The word 'material' means necessary for the purpose of formulating a complete cause of action."
Incompleteness of a plea may be fatal to it, because it cannot be made whole by leading evidence of its missing parts. Siddik Mahomed Shah v. Mst. Saran and others (2) and Adsumilli- Gopalakrishnayya Garu v. Province of Madras (3) Sir Gilbert Stone and S.R. Iyer, authors of the valuable book called "Pleadings", have brought out the distinction at page 116 (1 942 Edition) as follows: "If a material fact is omitted it may cost a party his whole case."
12. Both the Courts below by relying on an incomplete and in-consistent plea contained in the plaint of Mst. Zainab Bibi as also on DW.4/8, Mehr Abdul Qadir who appeared to support affirmative evidence have arrived at a finding of fact which is vitiated by error of law and can be interfered with in a regular second appeal. The evidence which constitutes fundamental basis of the findings given was not legal evidence to have been considered.
13. There is yet another aspect of the matter. The appellants who are small land owners who purchased the suit land about more than 20 years age. It may not be in consonance with the canons of equity to uproot them at this stage when even the law of pre-emption has undergone a sea change.
14. For what has been discussed above, this appeal is allowed, the judgment and decree of the learned Trial Court dated 23.4.1985 as also the judgment and decree of learned lst Appellate Court dated 5.1.1989 are hereby set aside and the suit is dismissed. There shall be, however, no order as to cost.