Saturday, 26 May 2012

Civil Revision not competent when Right of Appeal lies

PLJ 2012 Lahore 335
[Bahawalpur Bench Bahawalpur]

Present: Amin-ud-Din Khan, J.

ALLAH DIWAYA, etc.--Petitioners

versus

Mst. SUKHAN KHATOON, etc.--Respondents

C.R. No. 746 of 2001 and R.S.A. No. 5 of 2001, heard on 30.11.2011.

Superior Right of Pre-emption--

----Plaintiffs were bound to prove case of superior right of pre-emption qua vendees at three stages i.e. at time of alleged sale, at time of filing of suit and at the time of decree--Affirmative evidence--Validity--Neither anyone from plaintiffs nor any witness was produced in their affirmative evidence to prove superior right of pre-emption--It was a weak right till time of plaintiff proved his superior right of pre-emption and he could not get a decree for pre-emption if there was any loophole in evidence--Plaintiff as well as none of the witnesses appeared in affirmative evidence--Plaintiff had failed to prove their superior right of pre-emption qua vendee at three stages--Courts below had no adverse effect against rights on basis of the statement, no decree of pre-emption could be granted against her--Revision was dismissed. [Pp. 339 & 340] A, E & F

Statement of Compromise--

----Never admitted her statement of compromise as recorded by trial Court, one of co-defendants refused to thumb marked--Trial Court had not decreed suit on basis of that statement--No evidentiary value on basis of document--Validity--While decreeing the suit, trial Court was not competent to decree the suit on basis of alleged statement recorded by trial Court when alleged statement became disputed which was visible from proceedings of case--Courts below fell in error while relying upon alleged statement before trial Court--Plaintiff had failed to prove superior right of pre-emption against vendees, therefore, findings recorded by Courts below against vendees were set aside.  [P. 339] B

Right of Appeal--

----Value of suit property--Jurisdiction--As right of appeal was substantive right which was to be determined from date of filing of lis--Right of filing of second appeal was available on jurisdictional value of Rs. 24000/- therefore, civil revision could not have been filed by petitioners who was party to litigation, had filed R.S.A.--When right of appeal was available to party, it could not file a civil revision and that on basis of jurisdictional value admitted between parties and suit was filed in year 1975, Right to file appeal was available with petitioners which they had not filed same--When right of filing of appeal was available with petitioners, civil revision was not competent.       [P. 340] C & D

M/s. Mian Muhammad Bashir & Ch. Manzoor Ahmad, Advocates for Petitioners.

Mrs. Samina Qureshi, Advocate for Respondents.

Date of hearing: 30.11.2011.

Judgment

By this single judgment I intend to dispose of the above captioned civil revision and regular second appeal, as a common question of facts and law is involved in the impugned judgment and decree dated 14.9.2001 passed by the Addl. District Judge, Ahmadpur, East, District Bahawalpur.

2.  Through the civil revision and regular second appeal, the judgment and decree dated 14.9.2001 passed by the Addl. District Judge, Ahmedpur East has been challenged, whereby the appeal filed by the judgments debtors was partially accepted and judgment and decree dated 19.10.1995 passed by the Civil Judge 1st Class, Ahmadpur East fully decreeing the suit, was modified.

3.  The facts are that the petitioners of civil revision filed a suit to pre-empt the sale of land in favour of respondents through mutation No. 867 sanctioned on 18.12.1974 with regard to the suit land fully described in the head note of the plaint. The suit was filed on the basis that the plaintiffs are owner in the estate. The issues were framed on 26.4.1976. In the affirmative evidence the plaintiffs produced copy of jamabandi with regard to Khata No. 4/4 of Mouza Beet Ahmad for the year 1970-71 as Ex. P-1 and copy of Mutation No. 888 (Partt-Patwar) for gift sanctioned on 17.5.1974 by Budhan Khan s/o Ahmad Khan in favour of Ghulam Sarwar Khan, Allah Wasaya Khan, Ghulam Nabi Khan, Khan Muhammad and Ali Gohar (sons of Budhan Khan). Their counsel made a statement on 6.7.1977 that he will get recorded the statement of plaintiff in affirmative as well as rebuttal evidence after recording of evidence of the defendants. On 21.5.1979 the suit was fixed for the evidence of defendants. The record reveals that the statement of compromise of Mst. Sukhan was recorded but Defendant No. 5, namely, Ghulam Farid refused to thumb mark the alleged statement of compromise. The counsel who was appearing on behalf of the defendants, requested the Court that he be permitted to withdraw his power of attorney, as the defendants have shown no confidence upon him. The permission was granted and the counsel withdrew his power of attorney. The defendants were asked to produce their evidence on the same day but they failed, so their right to produce the evidence was closed and suit was decreed on the basis of available documentary evidence of the plaintiffs in shape of Ex. P-1 and Ex. P-2 on the record. The defendants filed an appeal which was dismissed by the First Appellate Court on 7.10.1979. The Regular Second Appeal No. 57 of 1979 was filed before this Court, which was accepted on 23.6.1993 and case was remanded to the trial Court with the direction to record the evidence and then decide the case on merits. After remand of case, the defendants produced their oral evidence in shape of DW-1 and DW-2 on 7.11.1993 and produced their documentary evidence from Ex. D-1 to Ex. D-8 on 17.5.1994 and from Ex. D-9 to Ex. D-11 on 30.7.1995. Thereafter the petitioners-plaintiffs got recorded the statement of PW-1 (Ghulam Muhammad) on 15.6.1995 and of PW-2 (Allah Bakhsh) on 5.10.1995. The plaintiffs further produced documentary evidence from Ex. P-3 to Ex. P-16. The trial Court vide judgment and decree dated 19.10.1995 decreed the suit holding therein that through Ex. D-11 Mst. Sahib Khatoon and Karam Khatton cannot befend the suit for pre-emption and that Mst. Sukhan has not rebutted her statement recorded on 21.5.1979. It was also held by the trial Court that Mst. Sukhan has admitted the right of pre-emption of plaintiffs.

Being aggrieved by the said judgment and decree, the appeal was filed before the First Appellate Court. Vide judgment and decree dated 14.9.2001 the First Appellate Court accepted the appeal to the extent of Mst. Sahib Khatton and Karam Khatton and dismissed the suit to their extent, whereas to the extent of Mst. Sukhan decree granted by the trial Court was maintained.

Now, the pre-emptors have filed civil revision mentioned above against the acceptance of appeal to the extent of Mst. Sahib Khatoon and Karam Khatoon, and Mst. Sukhan has filed Regular Second Appeal titled above.

4.  Learned counsel for the petitioners-plaintiffs argued that against their superior right of pre-emption, the defendants have denied their right but have not asserted that on what basis they are having the right of pre-emption; that Ex. D-11 does not give any right to the defendants as this document has been prepared in violation of Para 7.30 and 7.44 of Land Record Manual, therefore, no rights can be claimed by the respondents-defendants Mst. Sahib Khatoon and Karam Khatoon through this documents, hence, Mst. Sukhan Khatoon also cannot defend the suit on the basis of rule of "Sinker" as she has joined with her in the impugned sale the two ladies who are having no right of pre-emption, therefore, they failed to rebut the superior right of pre-emption claimed by the petitioners-plaintiffs; that the decree granted by the trial Court be restored and the judgment and decree modified by the First Appellate Court dated 14.09.2001 be set aside.

5.  On the other hand, learned counsel for the respondents in the civil revision as well as the appellant in the regular second appeal contended that the alleged statement of Mst. Sukhan recorded by the trial Court on 21.05.1979 relied by the First Appellate Court while modifying the decree, is against the law as the proceedings dated 21.05.1979 show that it is not proved on the record that whether this statement was recorded with the consent of Mst. Sukhan rather she has denied from the recording of her statement, therefore, the counsel who was represented the defendants including Mst. Sukhan withdraw his power-of-attorney and this statement if presumed to be of Mst. Sukhan was valueless, as after the remand the Courts were bound to decide the suit on the bass of available evidence and the decree against Mst. Sukhan could not have been passed on the basis of alleged statement dated 21.05.1979. It has been further contended that none of the parties to Ex. D-11 has challenged that document or rights inserted in the revenue record while making correction through Ex. D-11, therefore, the petitioners-plaintiffs have no right to challenged the validity of that document and insertion of right of Mst. Sahib Khatoon and Karam Khatoon in the revenue record.

6.  I have heard the learned counsel for the parties at full length and also gone through the original record available with the Regular Second Appeal.

7.  The plaintiffs were bound to prove their case of superior right of pre-emption qua the vendees at three stages i.e. at the time of alleged sale, at the time of filing of the suit and at the time of the decree. I have noticed that the petitioners-plaintiffs only produced Ex. P-1 and Ex. P-2 in their affirmative evidence. Neither anyone from the plaintiffs nor any witness was produced in their affirmative evidence to prove the superior right of pre-emption. Even otherwise, it is a weak right till the time the plaintiff proves his superior right of pre-emption and he cannot get a decree for pre-emption if there is any loophole in the evidence. The plaintiffs as well as none of their witnesses appeared in their affirmative evidence, therefore, the statements of witnesses as well as of the plaintiffs recorded after the close of evidence of the defendants-vendees cannot be read in their affirmative evidence. It can only be read in the rebuttal evidence. The Issue No. 1 was with regard to the superior right of pre-emption of the plaintiffs, the onus of which was on the plaintiffs. In the affirmative evidence only a Jamabandi for the year 1970-71 (Ex. P-1) is available that too with regard to Khata No. 4/4 of Mouza Beet Ahmad and further the Mutation No. 888 that too is a copy from the Partt-Partwar. The copy of the Mutation issued by the Patwari from the Partt-Patwar is not per se admissible and through this Mutation Ghulam Sarwar etc., sons of Budhan, have claimed to be the owner in the estate on the basis of this mutation. This mutation was got exhibited in the statement of counsel for the plaintiffs, even then this document has no evidentiary value and on the basis of this document the plaintiff cannot be granted any right.

8.  I have further noticed that the First Appellate Court fell in error while relying upon the alleged statement of Mst. Sukhan got recorded on 21.05.1979. The proceedings of 21.05.1979 are on the file which clearly reflect that Mst. Sukhan never admitted her statement of compromise as recorded by the trial Court and further that Ghulam Farid, one of the co-defendants, refused to thumb-marked this statement. The counsel who was representing the defendants at that time withdrew his power-of-attorney with the permission of Court and even the Trial Court has not decreed the suit on the basis of the statement. While decreeing the suit vide judgment and decree dated 19.10.1995 the trial Court was not competent to decree the suit against Mst. Sukhan on the basis of her alleged statement recorded by the trial Court on 21.05.1979, when on the same day the alleged statement of Mst. Sukhan became disputed which is visible from the proceedings of the case. Further, Mst. Sukhan was not bound to appear again before the trial Court to rebut or deny from that statement. Therefore, both the Courts below fell in error while relying upon her alleged statement recorded on 21.05.1979 before the trial Court. The findings recorded by both the Courts below are not sustainable, as the plaintiffs failed to prove their superior right of pre-emption against the vendees, therefore, the findings on Issue No. 1 recorded by the Courts below against the vendees are set aside.

9.  The petitioners have filed civil revision by mentioning the value of the suit property as Rs. 24000/ for the purpose of jurisdiction. Admittedly the suit was filed in the year 1975 and it is settled that as the right of appeal is substantive right which is to be determined from the date of filing of the lis. No doubt the right of filing of second appeal was available on the jurisdiction value of Rs. 24000/- in the year 1975, therefore, this civil revision could not have been filed by the petitioners when Mst. Sukhan who is also party to the litigation, has filed regular second appeal. Even today the petitioners have not bothered to pray for the conversion of this civil revision into the appeal. I am of the considered view that when the right of appeal is available to a party, it cannot file a civil revision, and that, on the basis of jurisdiction value admitted between the parties it was Rs. 24000/- and suit was filed in the year 1975, therefore, the right to file the appeal was available with the petitioners which they have not filed the same. When a right of filing of appeal as available with the petitioners, the civil revision was not competent.

10.  So far as Ex. D-11 is concerned. I am not inclined to go into the technicalities as highlighted by the petitioners and noticed by the trial Court. If for the sake of argument this was a valid objection in the light of Para No. 7.30 and 7.44 of Land Record Manual, this was available to that parties to the said document or the person whose rights have been determined through this document. The plaintiffs have no right to challenge this document or its validity. The First Appellate Court rightly dismissed the suit to the extent of Mst. Sahib Khatoon and Karam Khatoon.

11.  In the light of what has been discused above, the petitioners-plaintiffs failed to prove their superior right of pre-emption qua the vendees at three stages i.e. at the time of sale, at the time of filing of suit and at the time  of decree. The statement of Mst. Sukhan got recorded on 21.05.1979 relied by the Courts below, has no adverse effect against the rights of Mst. Sukhan and on the basis of said statement no decree of pre-emption can be granted against her. In this view of the matter the civil revision is dismissed being incompetent as learned counsel for the petitioners failed to show any defect in the findings of First Appellate Court recorded against them. The Regular Second Appeal filed by Mst.  Sukhan  is  allowed  and  the judgments and decrees of both the Courts below against the appellant are set aside. Resultantly, the suit filed by the petitioners-plaintiffs shall stand dismissed.

(R.A.)  R.S.A. allowed

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