' Brief facts of the case are that the suit-land described in the head-note of the plaint was sold by one Ghulam Sughran through registered sale-deed dated 31-1-1978, for a consideration of Rs.5,00,000, to the respondents. This sale was sought to be pre-empted by 5 preemptors namely Ghulam Farid. Muhammad Sharif, Noor Muhammad, Muhammad Azeem and Muhammad Siddique. The right claimed by the plaintiffs/appellants was that they are co-sharers in the disputed Khatas and also owners of estate. The suit was contested by the respondent. Necessary issues were framed by the learned trial Court and after recording evidence the learned trial Court vide judgment and decree dated 11-6-1986, decreed the suit of the plaintiffs/appellants. This judgment and decree was assailed by the respondents/vendees through an appeal which was allowed vide judgment and decree dated 29-6-1988, and the suit filed by the appellants was dismissed argued by the learned counsel for the parties, which are as follows:--
(1) Whether the plaintiffs have got superior right of pre-emption as against the vendee-defendants qua the suit-land? OPD
(6) Whether the suit is bad for non-joinder of necessary parties? OPD
(8) Whether the plaintiffs are estopped to bring this suit on account of their conduct? OPD
(10) Whether the present suit is for partial pre-emption? OPD
3. Learned counsel for the appellants contents that to prove their superior right, plaintiffs have produced Exh.P.2 "lama Bandi" relating to the year 1976-77, according to which plaintiffs Ghulam Farid, Muhammad Sharif, Muhammad Azeem and Noor Muhammad are owners in Khata No.4.
Which is one of the disputed Khatas, while according to Exh.P.3, all the 5 plaintiffs are owners of "Estate" and to substantiate their claim P.W.1, one of the legal heirs of the original plaintiff Mehr Muhammad Bakhsh has also appeared and supported his case.
4. On the other hand, learned counsel for the respondents contends that the land described in Exh.P.3 is not assessed to land revenue, therefore, ownership of such land which is not assessed to land revenue cannot clothe the plaintiffs with the status of owner of "estate". Relies on 1987 CLC 101 and 1989 CLC 195. It is further added that according to Exh.P.2, Muhammad Siddique plaintiff is not a co-sharer, therefore. Since the other plaintiffs had joined him as a co-plaintiff, who is a stranger thus they have also lost their right and have sunk to the status of stranger. Relies on ILR 5 Allahabad 195 and PLD 1972 SC 59. It is next submitted that in view of section 3 of the Enforcement of Shariat Act, 1991. All laws of the Country are to be interested in accordance with the dictates of Shariah.
Referring to para 241 of the Muhammadan Law by D.F. Mulla, it is submitted that if a stranger joins with the other plaintiffs in a pre-emption suit, the other plaintiffs despite having a superior right will lose their superior right. It is also contended that the word "estate" is defined in section 4(9) of the West Pakistan Land Revenue Act, 1967 in the following words:-- "estate" means any area-- "(i) for which a separate record-of-rights has been made; or
(ii) which has been separately assessed to land revenue; or
(iii) which the Board of Revenue may, by general rule or special order, declare to be as estate."
' Keeping in view the above definition it is submitted that to bring a particular land within the frame of "estate" all the factors mentioned in the above definition should be available i.e. The area should have a separate record of rights, having been assessed to land revenue and declared to be an "estate" by the. Board of Revenue. If anyone of the above conditions is missing, such piece of land would not fall within the ambit of "estate". Lastly it is contended that on 18-5-1983, when the learned counsel for the appellants tendered in evidence his documentary evidence Exh. P.1 to Exh. P.3, the evidence was closed without reserving the right of the plaintiff to appear as his own witness, therefore, under Order 18 rule 3, C.P.C., plaintiff Umer Bux could not have been examined as P.W.1 as their own witness in affirmative at a latter point of time. It is thus concluded that statement of P.W.1 recorded on 6-6-1983 cannot be read in evidence. Relies on PLD 1972 SC 25.
5. As a right of reply, learned counsel for the appellants contends that vide letter No.6692/66 dated 15-2-1967, issued by the Board of Revenue, the land contained in Exh.P.3 was subject to land revenue at the given rates. Although, neither this letter nor-any other "jamabandi" has come on record but still in view of an endorsement in the letter coming on "Jamabandi" of 1976-77, indicates that the said land is subject to land revenue. Relies on 1993 SCMR 1079. Learned counsel further adds on the strength of PLD 1987 Lahore 666 that in the cited case only "Jamabandies" were tendered by the leaned counsel for the plaintiffs to establish the pre-emptive right, while the plaintiff himself did not appear in witness-box despite that his suit was decreed.. Therefore, it is submitted that even if the plaintiff had not appeared, the suit could have been decreed on the basis of documentary evidence in theshape of Exh.P.2 and Exh.P.3, which are the "Jamabandies" having presumption of truth attached to them. It is also submitted that no doubt P.W.1 was recorded after the close of the defendants' evidence and his statement for affirmative was also not reserved, despite that if the respondents were feeling any prejudice, they should have objected at the relevant time when the statement of P.W.1 was being recorded, therefore, since this objection was not raised at the relevant time, they are now estopped to raise the same. Relies on 1998 MLD 1793 and 1996 SCMR 662. It is finally concluded that even if there is some procedural defect in the recording of evidence, the same is curable under section-99 of the C.P.C. However, as a last resort, he states that Muhammad Siddique appellant/plaintiff is not found to be having a superior right as against the respondents is ready to abandon his claim and may be allowed to withdraw from the suit:
6. Having considered the arguments of the learned counsel for the parties on Issue No.1, I have come to the conclusion that Exh.P.2 is the copy of "Jamabandi" relating to Khata No.4 only. While the suit also relates to Khatas Nos.12, 13 and 14 also. According to Exh.P.2, Muhammad Siddique one of the plaintiffs is not owner in Khata No.4, therefore, this document does not advance the case of the plaintiffs to the entire land in dispute. However, Exh.P.3 is the "Jamabandi" of Khata No.27 of Mauza Tal Chiragh, where the land in dispute is situated. According to this document all the original 5 plaintiffs are owners of the "estate". As against this there is no evidence from the defendants' side that they are also owners of "estate". Thus it is held that the plaintiffs/appellants have superior right of pre-emption as against the defendants/respondents.
7. The objection that the land mentioned in Exh.P.3 is not a land revenue paying land, therefore, such land cannot clothe the plaintiffs with a superior rights, is not a valid objection keeping in view the law declared by the Hon'ble Supreme Court reported as 1993 SCMR 1486. It was so held in the following words:-- "We may observe that the term "agricultural land" has not been defined is subsection (1) of section 3 of the Act but the definition of the same has been incorporated by reference from the Punjab Alienation of Land Act, 1900, subsection (3) of section 2 of which defines the expression "land" as to mean land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for the purposes subservient to agriculture or for pasture and includes the items mentioned in sub-clauses (a) to (g) referred to hereinabove in para 8. We may state that the term "estate" as pointed out hereinabove in para 8, means any areas for which a separate record-of-rights has been made or which has been .Separately assessed to land revenue or which the Board of Revenue by general rule or special order declares so.
' We may also state that clause (14) of section 4 of Act of 1967 defines the term "land revenue" as to mean land revenue assessed or assessable and subsection (1) of section 56 of Act of 1967(e) makes all lands liable to the payment of land revenue except land specified in clauses (a) to (e) thereof, referred to hereinabove in para.
9. A resume of the above provisions of the statutes indicate that though agricultural land is subject to payment of land revenue, but non-payment of the same shall not change the character of the agricultural land. It is also evident that under the definition of the "land" given in subsection (3) of section 2 of the Punjab Alienation of Land, 1900 ibid any land occupied as the site of any building in a town or village is excluded from the purview of agricultural land.
' We may also mention that section 4 of the Act, which deals with the right of pre-emption, speaks of three categories of property. It may also be mentioned that clause (c) thirdly of section 15 of the Act confers right of pre-emption on an owner of the estate.
' We may point out that none of the above provisions of the Act envisages that an owner of agricultural land or an owner in the estate whose land is not assessed to land revenue, shall lose the right of pre-emption. Even the definition of the term "estate" given in clause (9) of section 4 of 1967 includes in its definition any area for which a separate record-of-rights has been made or which the Board of Revenue may by general rule or special order declare to be an estate."
' In another unreported judgment by this Court in Regular Second Appeal No.363 of 1972, it was held that the fact whether any land is paying land revenue or not " is one of the criteria to determine the character of the land as to it being agricultural or otherwise. But certainly this is not the only criteria to discard a land from being agricultural if it is not land revenue paying and deprive a pre-emptor from his right on this short ground. The relevant observation in para. 17 of the judgment is as follows:-- "The fact that the particular land is a "land revenue paying' land or not is only one of the consideration to determine the status of the land i.e. Whether it is agricultural or non-agricultural.
But certainly it cannot be said that this is the only consideration on which status of the land can be finally determined. There is a possibility that in some areas agricultural lands are exempted from land revenue under the provisions of Land Revenue Act, 1967. It would not mean that 'due to such exemption these lands have lost their agricultural status. To determine the status of land, other attending circumstances can also be looked into, for instance, in the instant case through Exh.P.3, the appellants had acquired a big chunk of land measuring 98 Kanals and 11 Marlas in different rectangles in a village agricultural body, which by no means can be said to be a non-agricultural piece of land. Nor it has been established by the respondents by leading any evidence to show that the said land is being used by the appellants for any purpose other than the agricultural, therefore, this objection of the learned counsel for the respondents is also without any merits."big chunk of land situated in a village agricultural body, is being used for any other purposes than agriculture.
8. The next objection of the respondents that statement of P.W.1 cannot be read in evidence is also without any substance. Inasmuch as, when he appeared in witness-box, no objection was taken by them at that time, rather he was subjected to cross-examination. Thus their conduct amounted to acquiescence to the procedure adopted at the relevant time. This view is also supported with the judgment of the Hon'ble Supreme Court reported as 1996 SCMR 662 in the following words:- "Learned counsel appearing in support of this petition sought to contend in the first instance, though not very firmly, that the plaintiffs/respondents should not have been permitted to produce affirmative evidence on the issue of their superior right of preemption at the stage of evidence in rebuttal as this procedure is repugnant to the provisions of Order 18, rules 2 and 3, C.P.C. This contention, as noted above, was also raised by the petitioners in the High Court and was repelled for good reasons. It is not denied by the learned counsel that the respondents while closing the affirmative evidence had specifically reserved the right to examine one of the plaintiff in rebuttal as also in affirmative after the petitioners closed their evidence and that the petitioners had not taken any objection thereto at that stage. Not only that, they produced their own evidence without any protest and also cross-examined plaintiff No. l when he appeared as P.W.2 after the close of the petitioners' evidence. This conduct of the petitioners, as rightly observed by the High Court amount to acquiescence on their part. Petitioners are also not shown to have suffered any prejudice as a result of the procedure complained of as they were unable to point out in the High Court as to what evidence they would have produced in rebuttal if plaintiff No. I had appeared as a witnesses at the stage of affirmative evidence."
' A Division Bench of this Court in a case reported as 1998 MLD 1793 has taken the same view in the following words:-- "True, the plaintiffs' affirmative statement should have been recorded before production of evidence by the defendants/appellants and reservation of the right to make such a statement after the defendants' evidence is against the procedure laid down under the Civil Procedure Code.
Such a course has been deprecated or considered to be illegal in the cases of AlHaj Khalil Ahmad, Murid Hussain, Naseer Ahmad and Jhanda, relied upon the appellants' learned counsel. However, it is well settled proposition of law that a party which does not object to or raise an effective protest against the wrong procedure is deemed to have acquiesced in its and cannot at a later stage turn around and object to it, particularly when no prejudice is caused to it. In the case of "Retnakar Gountia and others v. Chamra Satpasty and others" (AIR 1919 Patna 497), it was laid down that a party not raising any objection and thus consenting to a procedure not strictly in accordance with the rules is bound by it. In the case of "Hardeo Singh v. Hira Singh and another (AIR 1937 Oudh 275), it was held that where a party does not raise effective protest against the procedure and acquiesces in illegal procedure then it is bound by it."
9. section 4(9) of the West Pakistan Land Revenue Act, 1967 defines "estate". According to this definition, if anyone of the three conditions is available in a particular case, the area would be deemed to be an "estate" i.e. For which a separate record-of-rights is made or is being separately assessed to land revenue or it has been declared to be an "estate" by the Board of Revenue through a general or special order. In the instant case, Mauza Thal Chiragh is having its separate record-of rights, thus qualifies to be an "estate".
' Issues Nos.6 and 10.
10. On Issues Nos.6 and 10, learned counsel for the appellants states that during the course of trial Mst. Noor flibi (plaintiff No.5) who is widow of Muhammad Azeem plaintiff and Mst. Ehsan Bibi (plaintiff No.11) daughter of Muhammad Azeem plaintiff, both impleaded as plaintiffs after the death of Muhammad Azeem, had withdrawn from their rights of the suit and in this behalf a statement of their learned counsel was recorded on 6-6-1983, whereby they had abandoned their right to their share in the Zare-Panjum as well. On the basis of this factual aspect the learned lower Appellate Court had held that since the afore-referred two ladies have not further pursued their rights despite being necessary parties, therefore, the suit was bad for non-joinder of necessary parties and since they were co-plaintiffs and had abandoned their rights, therefore, the suit had also become for partial preemption.
11. Learned counsel for the appellants in this behalf contends that there was one counsel for all the plaintiffs including the above named two ladies, who were not interested-to further persue their right of preemption, therefore, they had abandoned their rights in favour of other plaintiffs and other plaintiffs could validly claim their right of preemption to the entire land. Relies on 1998 SCMR 2714, PLD 1978 SC 133 and 1987 SCMR 1874.
12. On the other hand, learned counsel for the respondents contends that under order 23 rule 1(4)
C.P.C., any of plaintiffs could not withdraw from the suit without a clear permission of the other plaintiffs. In the instant case, no such statement was recorded on behalf of the other plaintiffs, therefore, the order dated 6-6-1983 was inherently bad in law. It is further submitted that since the above-mentioned two ladies had neither joined the appellants in this appeal nor they have been arrayed as respondents, therefore, the appeal is not properly constituted. In this behalf it is finally argued that all the plaintiffs originally claimed the entire suit land in their plaint and the same prayer is being made through-out and no amendment was sought despite the fact that Mst. Noor Bibi and Mst. Ehsan Bibi have abandoned their rights, therefore, it was rightly held by the Appellate Court that the suit is not only bad for non-joinder of necessary parties but also because of partial pre-emption.
13. Having considered the arguments on their issues, it is to be noted that all the plaintiffs were being represented by the same learned counsel who made his statement on 6-6-1983, whereby Mst. Noor Bibi and Mst. Eshan Bibi had withdrawn not only from their suit but had also abandoned their right in the share of Zar-e-Punjum. Therefore, it is evident that they had abandoned their right with the consent of other plaintiffs. In such eventuality other plaintiffs were entitled to pre-empt the whole land in dispute. It is repeatedly held by the Hon'ble Supreme Court that in such eventuality, neither the suit becomes bad for non-joinder of parties nor it becomes one of partial pre-emption.
Reference can be made to 1998 SCMR 2714, PLD 1978 SC 133 and 1987 SCMR 1874. It is thus held that neither the suit was bad for non-joinder of necessary parties nor it was for partial pre-emption.
Issue No.8.
14. With respect to Issue No.8, it is submitted by the learned counsel for the appellants that Mst. Faiz Elahi defendant No.80 is the daughter-in-law of Muhammad Sharif plaintiff, while Mst. Fazal Elahi defendant No.81 is wife of Muhammad Siddique plaintiffs. Keeping in view this relationship, learned Appellate Court has held that not only the above-named two plaintiffs but the other plaintiffs, have also lost their right of pre-emption by waiver.
15. It is contended that the fact that some of plaintiffs being related to some of the defendants would not established that they have waived their right of pre-emotion unless some active participation of the plaintiffs is established through evidence to show that they had given some indication to the defendants that they will not bring any suit to preempt the sale.
16. On the other hand, learned counsel for the respondents contends that D.W.1 has stated in clear words that plaintiffs were present at the time of bargain. He had also stated the relationship of the above two ladies with the above-referred two plaintiffs but these facts have not been rebutted through any evidence, therefore, according to him, the said plaintiffs had lost their right of pre- emption because they had actively participated in the sale.
17. It is being claimed by the defendants/respondents that two of the defendants ladies i.e. Mst. Faiz Elahi defendant No.80 and Mst. Fazal Elahi defendant No.81 are closely related to two of the plaintiffs, therefore, because of this relationship the plaintiffs knew about the transaction. Thus because of this knowledge they have waived their right of pre-emption. This claim of the respondents/defendants is not supported by any law, rather, on the other hand, the Hon'ble Supreme Court had repeatedly held that mere presence of the pre-emptor at the time of bargain would not constitute a waiver. Even if he had the knowledge of sale but due to lack of finances he could not purchase it, still he could file a suit for pre-emption. To establish waiving of right of pre- emption, it is incumbent upon the defendants to establish through evidence the conduct of the plaintiffs indicating that he had clearly shown by his conduct that he had abandoned his right of pre-emption. In the instant case, there is nothing in the evidence of the defendants to show any such conduct on the part of the plaintiffs, whereby they had abandoned their right to pre-empt the property in dispute. Reference can be made to 2002 SCMR 49, 1999 SCMR 201, 1996 SCMR 806 and 1996 SCMR 1729.
18. For what has been stated above, this appeal is allowed, judgment and decree passed by the learned Appellate Court dated 29-6-1988 is set aside while that of the learned trial Court dated 11- 6-1986 is restored. No order as to costs.