' MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been preferred against the judgment and decree passed by the High Court on 30-10-2000, whereby the appeal filed by the appellant herein was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the defendant-appellant purchased the entire share of defendants Nos.2 to 8 from Survey Nos.1527 min and 1527-min alongwith the share of Shamilat Deh, situate in Village Terrinot, Tehsil Hajira, for a consideration of Rs,36,000 through sale-deed, dated 4-2-1989. The predecessor-in-interest of respondents, namely, Fateh Muhammad, preempted the sale-deed. He claimed the right of prior purchase on the basis of his being a co-sharer with the vendors. The suit was contested by the defendant-appellant.
During the pendency of the suit the predecessor-in- interest of plaintiffs-respondents died and his legal representatives were duly impleaded as plaintiffs. The learned Sub-Judge vide his judgment and decree, dated 24-9-1998 decreed the suit filed by the plaintiffs-respondents. The appeal filed by the appellant before the Additional District Judge, Hajira was dismissed. The second appeal taken to the High Court was also dismissed vide the impugned judgment of the High Court, dated 30-10-2000, which is the subject of present appeal.
3. In support of appeal it has vehemently been contended by Mr. Imdad Ali Mallick, the learned counsel for the appellant, that the judgments and decrees passed by the trial Court, the First Appellate Court and the High Court are based on no evidence. All the Courts passed decrees in favour of respondents on the ground that they are co sharers in the suit-land while there was nothing on the record on the basis of which it could have been said that the predecessor-in- interest of respondents was a co-sharer with the vendors. The learned counsel contended that particularly the Courts below have placed reliance on Misl-e-Haqiat pertaining to year 1989-90 but the same was not tendered in evidence nor the same was proved. Similarly the copy of Aks Latha and Jamabandi relating to year 1944-45 and Khasra Girdawari and Parcha Khatooni were though placed on record but the same were also not tendered in evidence, as such no reliance could have been placed on these documents. Thus both the Courts below as well as the High Court wrongly placed reliance on the aforesaid documents. The learned counsel contended that it was enjoined upon the plaintiffs-respondents to prove their prior right of purchase at the stage of sale, institution of suit and at the time of decree passed by the trial Court but they miserably failed to do so. The learned counsel further contended that the appellant had moved an application for amendment of the written statement before the High Court which was duly entertained and the objections were called for from the opposite side but no findings were recorded by the High Court on the said application. The learned counsel contended that it was enjoined upon the High Court to first decide the application for amendment and then to dispose of the appeal in light of decision of the application for amendment. The learned counsel contended that it was for the plaintiffs- respondents to prove their suit by producing some cogent evidence and the plaintiffs-respondents were not entitled to get benefit out of the weakness of the case of defendants. He in support of his contentions relied upon the case reported as Tariq Mehmood v. Muhammad Asghar 1990 CLC 1214.
4. Controverting the arguments raised by the learned counsel for the appellant Mr. Ashfaque Hussain Kiani, the learned counsel for the respondents, contended that when the defendant appeared as a witness in the Court, he admitted in clear and unequivocal terms that the predecessor-in-interest of respondents, Fateh Muhammad, was co-sharer in the suit-land. The learned counsel contended that the documents; copy of Misl-e-Haqiat 1998-99, copy of Jamabandi pertaining to year 1944-45, copies of Khasra Girdawari and Parcha Khatooni were duly appended with the suit and the defendant-appellant was fully aware of the documents placed on record by the plaintiffs-respondents. During the statement of respondent No,1, who appeared as attorney for his father, the plaintiff during the cross-examination asked many questions about the said documents. It shows that both the parties were conscious about the existence of said documents on the record of the Court and the contents thereof. As no specific denial was made in the written statement nor any question regarding the genuineness of said documents was ever asked, the requirement of tendering the said documents loses all the importance.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that it was observed by the High Court that the documents produced by respondents were not tendered in evidence as such no reliance could be placed on them.
However, it was observed by the High Court that when the defendant-appellant appeared as a witness before the Court, he admitted in clear and unequivocal way that Fateh Muhammad, plaintiff, was co-sharer in the suit-land. The High Court opined that when Muhammad Rasheed, defendant, has admitted the fact of Patch Muhammad's being a co-sharer with the vendors in suit-land there was nothing wrong in the findings recorded by the Courts below that the plaintiff was a co-sharer in the suit-land and thus rightly passed the decree in favour of plaintiffs- respondents. In our view the High Court was not justified in recording the observation that since the documents were not tendered in evidence, therefore, the same were not admissible and could not have been taken into consideration.
' In a case reported as Natha Khan v. Mst. Rehmat Bibi PLD 1960 Lah. 96 it was observed that a certified copy of the sale-deed and the terms and conditions on which' the land had been granted to Sher Muhammad, Fateh Muhammad and Khair Muhammad have been placed on record by the plaintiff herself. These documents were not exhibited but having been placed on record by the plaintiff herself are admissible in evidence and can be looked into.
' In a case reported as Muhammad Ashraf v. Syed Ghulam Murtaza and others NLR 1992 CLJ 707 it was observed that the document not properly produced in evidence can be looked into if such document is properly available on record. Photo copy of order which was not produced in original nor exhibited by the trial Court can be considered by the trial Court and the Appellate Court.
' In an unreported case of this Court titled Abdul Karim v. Muhammad Sughram and others (Civil Appeal No,85 of 2000, decided on 2-3-2001) it was observed that the copy of mutation was relied upon by the plaintiff-appellant and was read into evidence by the trial Court as well as by the First Appellate Court. No objection was raised by the respondents that the same was inadmissible as having not been exhibited or formally tendered in evidence. The objection was not raised even in the memorandum of appeal filed in the High Court. It may be stated that as the attested copy of mutation was admitted and read into evidence by the trial Court and the First Appellate Court without any objection by the respondents, the same cannot be excluded from the evidence merely because the same was not exhibited; the non-exhibiting of...a document which is otherwise admissible in evidence is merely an irregularity and does not render such a document as inadmissible into evidence.
6. Thus the observations of the High Court regarding, the inadmissibility of the documents produced by the plaintiffs-respondents alongwith the plaint are set aside. It may also be pointed out that when the defendant-appellant appeared as his witness, he categorically admitted the fact of predecessor-in-interest of respondent, Fateh Muhammad, as being the co-sharer of the vendors. Thus a substantial question of fact which goes to the root of the case and the same stands admitted by the opposite-party, it need not be proved. Our aforesaid view finds support E from a case titled Ch. Abdul Karim and others v. Raja Muhammad Nisar and another 1999 PLC (C.S.) 624, wherein it was observed that it is well-settled principle of law that facts admitted need not be proved.
7. The contention raised by the learned counsel for the appellant that it was enjoined upon the plaintiffs-respondents to prove their right of prior purchase at three stages, i,e, at the time of sale, at the time of institution of suit and at the time of passing of decree of the trial Court also needs no consideration for the simple reason that the said plea was never raised in any of the Courts below nor before the High Court. Even otherwise nothing has been brought on record showing that the plaintiffs-respondents lost their right of pre-emption at any of the stages mentioned above.
8. The last contention of the learned counsel for the appellant that the High Court without deciding the application for amendment disposed of the appeal and thus committed an illegality is also devoid of any legal force. The amendment application before the High Court, as rightly pointed out by the learned counsel for the respondents, was moved just to prolong the litigation as the same would not have served any useful purpose. It also transpires from the record that the appellant did not press the application for amendment of his written statement. Thus a point which is not pressed before the High Court cannot be allowed to be G raised before this Court. Therefore, even this contention of the learned counsel for the appellant is not sustainable.
9. All the Courts below, i,e, the trial Court and the District Judge including High Court have concurrently decided that the respondents have proved their plea of being co-sharers with the vendors, therefore, they had the preferential right as compared to vendee. Thus the judgments and decrees were rightly passed in favour of respondents by the Courts below as well as the High Court.
' In the light of what has been stated above, finding no force in this appeal, the same stand dismissed with costs.