' CHAUDHRY RAIHM DAD KHAN, C. J.-This is a certificated appeal which was filed under the Judicial Board Act. It stood transferred to this Court under the provisions of subsection (15) of section 42 of the Interim Constitution Act, 1974. It arises out of judgment and decree of the Azad Jammu & Kashmir High Court dated 1-7-1975 by which it maintained the judgment and decree dated 5-3- 1975 of the District Judge, Rawalakot, whereby the judgment and decree dated 16-3-1970 of Sub- Judge, Rawalakot, was reversed. The brief facts of this case may be stated as follows:-
2. Respondent Said Khan son of Ghania, caste Sudhan, resident of Hurna Maira, Rawalakot, purchased land measuring 14 kanals 8 marlas out of land measuring 56 kanals 17 marlas under Survey Nos, 2271 and 1861 situate in village Pachhote from Mukhtar Khan and others under a registered sale-deed dated 16-8-1958 for an ostensible consideration of Rs, 2,500. The appellant- plaintiffs who are the owners of the 'Mahal' in village Pachhote raised an action under section 14 (c) 'firstly' of the Right of Prior Purchase Act in order to enforce his right of prior purchase; on payment of Rs, 600, the price, according to him, was actually paid. The trial Court did not accept the claim of the plaintiff and decreed the suit on payment of Rs, 2,500. Before this Court no controversy was raised as regards the amount on payment of which the pre-emptor can exercise his right of prior purchase.
3. The principal questions that require determination in the instant case on which arguments were submitted before this Court are:
(a) whether the plaintiff-appellant has pre-emption rights, and
(b) if so, whether he has waived that right.
' These were the issues before the trial Court and the first appellate Court as well as High Court on which both the parties strenuously concentrated their efforts.
4. After recording the evidence produced by both the parties the Sub-Judge disbelieving the evidence produced by the vendee came to the con. Elusion that the plaintiff-pre-emptor has established his right of pre-emption and that defendant-vendee failed to prove waiver.
Consequently he decreed the suit subject to payment of Rs, 2,500, the purchase money together with costs of sale-deed, in the Court. The defendant-vendee filed an appeal before the District Judge, Rawalatot, who reversed the finding of the trial Court on both these issues and dismissed the suit. On appeal by pre-emptor the High Court did not agree with the District Judge on the question of right of pre-emption and reversing his finding restored that of trial Court holding that the pre-emptor was clothed with the right. But on question of waiver the finding of the trial Court was maintained and consequently the appeal was dismissed.
5. The plaintiff claims right of pre-emption on the basis of being an owner of 'Mahal'. The contention of the learned counsel for the respondent that it was claimed on the basis of contiguity and not as owner of a 'Mahal' does not carry much weight when adjudged in the context of the actual terminology used in the plaint. The High Court has correctly held that the plaintiff is invested with the right of pre-emption on the basis of being owner of 'Mahal'. This right of pre-emption is even admitted by the vendee in the instant case; otherwise he would not have secured from pre-emptor document Exh. D. A. In his (vendee) favour by which the pre-emptor precluded himself from asserting his right. In view of this fact coupled with the proof of his being an owner of 'Mahal' we see no reason to differ with the finding of the High Court to the effect that the vendee is clothed with the right of prior purchase. We do not agree with the contention of the learned Advocate for the appellant that the right of pre-emption in the instant case was claimed on the basis of contiguity and not as an owner of the Mahal'. Merely because the pre-emptor mentioned in the plaint that his land is contiguous to the land sold it would not be possible to draw the inference that the right was claimed on the ground of contiguity alone particularly when it is clearly stated in the plaint that the right is claimed as owner of the 'Mahal'.
6. Before considering the evidence in the case we wish to make it clear as to what in substance is defendant's plea and what is to be established by him in order to defeat the pre-emption right of the plaintiff. In the judgment of all the Courts below and in the arguments it has been described as plea of waiver. Sections 14 and 15 of the Right of Prior Purchase Act (which correspond to sections 15 and 16 of Punjab Pre-emption Act) respecively deal with the sale of immovable property in rural and urban area. Section 20 (section 21, Punjab Pre-emption Act) provides that a person clothed with such a right may bring a suit to enforce it when a sale for foreclosure has been effected.
Sections 18 and 19 (19 and 20, Punjab Pre-emption Act) deal with statutory waiver but a Pre-emptor may be estopped from claiming his right of prior purchase on account of his other acts such as clear refusal to purchase or agreeing to forego his claim. In order that a plea of waiver may succeed it should be proved that the right of pre-emption, if already vested, was extinguished by some act of person to whom it belonged or before it actually arose on the execution of the sale- deed, as, in the instant case, he precluded himself from enforcing it. Thus in the one case it would amount to relinquishment of the right and in the other to a representation express or implied that he would not enforce it. To establish that the pre-emptor in the instant case precluded himself from enforcing his right reliance was placed on document Exh. Which according to the vendee was executed by the pre-emptor. Various points with reference to this document were raised by the learned Advocate for pre-emptor. They are: (1)absence of endorsement by the trial Court on a document admitted into evidence; (2)admissibility of an unstamped document into evidence; (3)execution of Exh. D. A. By pre-emptor; (4)if proved whether it covers the entire land that is subject of preemption.
' As regard to the absence of endosement on D. A. By the Court under Order XIII, rule 4 it would be useful to state that in the instant case the document was filed in the Court on 11-11-1960. On the next stage when on 23 8-1961 it was formally tendered into evidence it was marked as Exh. D. A. Without making a formal decision as regard to its admission or rejection and without making an endorsement on it in compliance with the provisions of Order XIII, rule 4. The fact that provisions of Order X711, rule 4 were not strictly complied with in regard to endorsement on Exh. D. A. Gave rise to embarrasing controversies whether or not this document has been admitted in evidence. In similar circumstances their Lordships of Privy Council in Sadik Husain Khan v. Hashim Ali Khan (t) adversely criticised the practice that was followed in those cases and observed at page 41 that: "By the 141st section of C. P. C., 1871, repeated in C. P. C., 1882 and practically re-enacted in Order XIII, rule 4 of the Rules and Orders passed under the Code of Civil Procedure of 1908, it is provided that a Presiding Judge shall endorse with his own hand a statement that it (Le., a document proved or admitted in evidence) was proved against or admitted by the person against whom it was used."
' It would appear that requirements of rule is that when a document is admitted in evidence it must be endorsed by the Judge to record the face that it has been admitted into evidence after complying with necessary legal formalities. We do not approve the procedure adhered to in this case of making exhibit on the document &h. D. A. In a mechanical manner without proper application of mind and would insist on compliance of the provisions of Order XIII, rule 4 (for which Registrar, Swims Court shall issue a circular to the Registrar, High Court) but nevertheless, in our opinion, this neglect on the part of the trial Judge would not take away its probative value especially when it had been referred to in arguments and made use of in the judgment. This omission in making an endorsement on document, in the circumstances of this case, remains only an irregularity.
7. As regard to the non-pay meat of duty and penalty on document Exh. D. A. Is an allied matter to the question of admission of document
(1) AIR 1916 P C 27 which too has arisen due to negligence of the trial Judge, it is laid down in section 35 of the Stamp Act that an instrument chargeable with duty cannot be admitted in evidence for any purpose by a civil Court unless it is duly stamped. In the instant case the document Exh. D. A., it appears, was placed on the file of the Sub-Judge, Rawalakot, on 11-11-1960 along-with the sale deed Exh. D. C. It was tendered into evidence on 23-8-1961 when statement of Mohammad Afsar Shan son of Mousu Khan D. W. Was being recorded. After exhibiting the document as Exh, D. A. And recording the statement for sometime the trial Judge made a note to the effect that penalty on Exh. D. A. Be paid but did not impound the document as required under the provisions of section 35 of the Stamp Act and without determining the penalty or duty he proceeded with the statement of the witness, The document was referred to in the arguments and made use of in the judgment. Once a document is marked as exhibit and also is shown to the witness for the purpose of identification, it becomes a clear admission of the instrument in evidence. In such a case the question or dismissal of the suit on the ground that the instrument was not sufficiently stamped or penalty was not paid, does not arise in view of the provisions of section 36 of the Stamp Act. The Supreme Court of Pakistan in P L 1968 SC 516 considering a similar question, endorsed the view of Indian Snpreme Court expressed in AIR 1961 SC 1955 to the effect: "Once a document has been marked as an exhibit in the case and has been used by the party in examination and cross-examination of their witnesses, section 36, comes into operation. Once a document has been admitted into evidence, as aforesaid, it is not open, either to the trial Court itself or the Court of appeal or revision to go behind that order."
' Considering this authority, the Supreme Court of Pakistan at page 532 observed that:- "This view is on principle too sound for once a document has been admitted in evidence without objection, its admissibility cannot subsequently be challenged on any technical ground or any ground which does not affect the party. The collection of the revenue is not concern of the party.
That purpose is adequately served by section 61."
' Once an instrument has been admitted by the Court of first instance, section 36 of the Stamp At prevents the admission from being called in question on appeal. In the instant case, though the document was exhibited and marked as Exh. D. A, but the question of assessing the penalty and stamp duty was not decided. The Court was bound to do so. Since they appellant has paid the penalty and stamp duty the question remains only. Of academic importance and we would like to impress upon the trial Court' that it is very important to follow the procedure in this behalf.
8. Reverting to the question of waiver as the two Courts have differed on a vital question of facts relating to the execution of document Exh. D. A. It is desirable to examine the entire evidence bearing on that question and arrive at our own conclusion. The defendant in order to prove his case of waiver, set up in the written statement, produced document Exh. D. A. By which the pre- emptor allegedly precluded himself from enforcing his rights. The defendant examined Muhammad Afsar Khan son of Mousu Khan, who is the margined witness of tee document. He states that documents Exh. D. A. Was excuted by the plaintiff-pre-emptor in his presence who put his signatures on it after it was explained and read over to him. He is related to both the parties.
Said Mohammad is the scribe of the document and he corroboraties the statement of Mohammad Afsar. Said Khan vendee also appeared in the witness-box and corroborated the statement of Mohammad Afsar and Said Mohammad. In rebuttal Fateh Mohammad son of Raj Wali Khan was produced who says that no such document was executed in his presence and that he being illiterate cannot sign a document. The plaintiff-pre-emptor who was alive then and died after the completion of the trial, while an appeal was pending before the District Judge, did not put himself in the witness-box to disown his alleged signatures on the document D. A. For rejecting the evidence of the scribe and one of the marginal witnesses the trial Court was influenced by the reason that the witnesses were related to the vendee. It is true that the witnesses are related to both the parties in some way or other but their presence is evidenced by documentary evidence and they were in a position to know the facts alleged by the defendant as they happened in their presence. It is not suggested what other evidence the defendant could produce substantiate his case. In a case like this where transaction took place in a village between the persons belonging to the same community residing in the surrounding in which relations of the parties are likely to be present and the population being scattered, absolute, 'independent and disinterested' evidence cannot be forth coming. Relationship in such circumstances ma be a reason for strict scrutiny but certainly is no ground for rejection of the evidence provided it fits in with the probability of the case and not discredited by any proved falsehood. In case of conflicting evidence about the genuineness of the signatures of the executant on the document "the safe principle is to consider which story fits in with the admitted circumstanced and resulting probabilities." The facts were within the personal knowledge of the plaintiff-pre-emptor he should have himself appeared in the witness-box and submitted to cross-examination. His non-appearance is a circumstance which will go to discredit the truth of his case. The evidence of Fateh Mohammad is of negative character which leads nowhere and we agree with the High Court and the District Judge that the execution of the document Exh. D. A., containing a statement of the plaintiff-pre-emptor precluding him from asserting his right of pre-emption, was examted by him.
9. The next question that requires determination is whether the plaintiff-pre-emptor excluded himself from asserting his right of prior purchase over the entire land conveyed under the sale deed or only to the extent of land under Survey No, 2271. Atfer careful examination of the document, we are of the view, that the pre-emptor by this document precluded himself from asserting his right of pre-emption over the entire land conveyed under the sale deed. No doubt in the document only Survey No, 2271 is mentioned but it is clearly stated therein that the other land as well that is under the possession of the vendee and which the vendee intends to purchase he (the plaintiff) would not assert his right of preemption. Therefore, we are of the opinion that the pre-emptor is precluded to assert his right over the entire land.
' In view of the foregoing discussion we see no reason in this appeal which is hereby dismissed with costs.