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P L D 1975 Quetta 52

 

Before Zakaullah Lodhi, J

 

DAD‑Appellant

 

versus

 

RAMZAN‑Respondent

 

Regular Second Appeal No. 15 of 1970, decided on 10th September 1975,

 

 

Basharatullah for Appellant.

 

Azizullah Memon for Respondent.

 

Dates of hearing : 18th, 22nd, 23rd and 24th July 197;

 

JUDGMENT

 

This appeal, under section 24 of Dastur‑ul‑Amal Diwani, Kalat, is directed against the judgment and decree dated 26‑8‑1969, passed by the learned Majlis‑e‑Shoora. Kalat Division. arming the judgment and decree of the learned Qazi Bela, dated 29‑4‑1965.

 

2. Briefly narrated, the facts of the case are that the appellant and the respondent are agriculturists by profession. The appellant owns agricultural land in Deh Umra, Tehsil Bela, District Lasbela, where the land of the respondent is also situated. Now, the dispute is to respect of 42 kurums of agricultural land, situated in Deh Umra, Tehsil Bela, District Lasbela. In 1950, Sidaique was the owner of the disputed land, from whom the appellant purchased it for Rs. 750 in the year 1950. In the same year, one Sabir tiled, a suit against Siddique, claiming the ownership of this land. Despite the purchase of the land by the appellant, the dispute continued between Sabir and Siddique and it was finally set at rest in 1956 when the learned Majlis‑e Shoora decided that Sabir was the owner of the suit land. However, the possession of the land remained with Siddique throughout, and then with the appellant. It was after the decision of Majlis‑e‑Shoora, that the appellant approached Sabir and offered him Rs.250 and got the money refunded from, Siddique who was earlier paid Rs. 750 by the appellant by way of considera tion for land in dispute. Sabir accepted the right of pre‑emption asserted by the appellant, accepted the money, and left the disputed land in favour of the: appellant.

 

3. The respondent filed a suit against the appellant for pre‑emption of’ the disputed land as late as 17‑1‑1064, explaining the reason of delay by, stating that when the transaction between Sabir and the appellant took place be was still a minor and therefore he was prevented from asserting the right of pre‑emption, which he did immediately after attaining majority They basis for the claim of pre‑emption was that the respondent’s land was con tiguous to the suit land and both the respondent’s land as well as the suit land were irrigated through a common source of water.

 

The demand of pre‑emption was denied by the appellant in his written, statement and it was specifically urged that (i) the suit was time‑barred; (ii), the right of pre‑emption, if any accrued to the respondent’s father and grandfather who were alive when the transaction took place but they did not assert this right; (iii) the right of pre‑emption not being a heritable right the respondent was stopped from making an assertion of this right; and (iv) the right to enjoy the ownership of land by the appellant was equal in all respects to the right of‑the respondent to possess it: as such the right of the respondent not being superior to possess the disputed land than the right of the appellant the question of pre‑emption did not arise.

 

The learned Qazi framed the following five issues for the adjudication of’ the case–‑‑

 

(i) Whether the plaintiff has a right of pre‑emption as being a participator in the amenities i.e. right to the common source of water and owner ship of contiguous property?

 

(ii) Whether the plaintiff has made the two demands i.e. talab‑e mawasebat and talab‑e‑Ishaad?

(iii) Whether at the time of sale in question father and grandfather off’ the plaintiff were alive?

(iv) Whether at the time when Sabir recognized the sale in favour of Dad by Siddique, the father of the plaintiff was alive?

(v) Whether Dad bad purchased this property from Sabir?

 

The procedure conducted by the learned Qazi Bela for the decision of the case was tuft of errors in it that he did not electrically follow the procedure envisaged by Civil Procedure Code or Dasturul Amal Diwani, Kalat. I would briefly narrate the same and point out the irregularities committed by the learned Qazi. On 11‑3‑1964, the learned Qazi recorded better statements of the parties. On 13‑3‑1,064, before the framing of the issues he required the parties to file their respective lists of witnesses which was done Oils 16 3‑1964, he examined two witnesses out of the appellant’s witnesses namely Ilyas and Waroon. On the same day he recorded tae statements of two offence witnesses and adjourned the case to 21‑3‑1964. In this way the examination of the defence witnesses took place before the completion of the plaintiff’s evidence On 17‑3‑1964, an application was submitted by the appellant that some more witnesses which included some more witnesses as well my also be summoned but it stems that this application was neither refused nor accepted. All what was written on this application by way of order was that: “It should be filed”. Thereafter no action was taken upon it. On 21‑3‑1964 the appellant moved another application seeking adjournment of the case on the ground that his witnesses Haji and Alloo had gone to attend to the Government duties and therefore they could not be produced in the Court. This application was likewise ordered to be “filed”. The learned Qazi however proceeded to examine respondent’s witness namely Haji. It seems that the case was then adjourned to 2a‑3‑1964 when an application was moved by the brother of the appellant to the effect that as the appellant had suddenly fallen ill therefore the hearing of the case may be adjourned to some other date. The case was not adjourned and the statements of three witnesses of the respondent were recorded in the absence of the appellant. An order of ex part proceedings was also passed on that date and finally the suit was decreed in favour of the respondent.

 

On 26‑3‑1964, the appellant submitted an application seeking setting aside the ex parte decree and also produced a medical certificate issued by Civil Surgeon, Lasbela to explain his absence on the previous date of hearing but this application was dismissed straightaway. On the same day he filed another application praying that he may be re‑heard. Surprisingly enough, this application was entertained and it was ordered that the case should be put up on 27‑3‑1964. On 27‑3‑11964, it seems, that the ex parse orders were partially called off and a chance was given to the appellant to cross‑examine the witnesses of the respondent whose statements had been recorded in his absence. These witnesses were accordingly cross‑examined by the appellant. The case was next fixed for 30‑3‑1964, on which date the appellant constituted one Bachal as his attorney on the ground that he was still ill and could not therefore look after his case. The learned Qazi did not allow the attorney to proceed with the case on the ground that the case had already been concluded. He further observed that the attorney was a person who had been “spying” during the proceedings of the case in it that he used to sit in the court‑room to hear the proceedings and subsequently passed on the information regarding the proceedings taken in the case to the appellant. It was further observed that the attorney had also tried to make some enquiries from the learned Qazi about the case on 24‑6‑11964 in the absence of the appellant which according to him, was an effort to get some secrets disclosed and that in this connection he had been admonished by him. In short on such unreasonable and fallacious grounds he held that the power of attorney could not be accepted. However, he further observed in his order that if at all the appellant was interested in appointing an attorney he could appoint some one from amongst his relations. On 4‑4‑1964, a second application was presented by the appellant requesting for time so that the appellant could himself prosecute his case after regaining health. This application was referred to the Civil Surgeon, Lasbela who on 6‑4‑1964 reported that the appellant was in proper health and could prosecute his case. Meanwhile the appellant constituted another attorney and presented the power of attorney to the learned Qazi who refused to accept this attorney as well on the ground that the power of attorney had been attested by Naib- Tehsildar. His reasoning was that by getting the power of attorney attested by Naib‑Tehsildar and not by him the appellant illegally tried to deprive him of his right to attest the said documents.

 

The case next came up for hearing on 11‑4‑64 when the appellant moved three separate applications of which one was for summoning of those witnesses for which he had already submitted an application on 17‑3‑1961. The second application was for summoning of ‑even more witnesses so that he could prove that the father of the respondent had appointed an executor of his will but this executor of will did not assert the right of tare‑emption. The last application was moved to obtain copies of the orders passed on two applications whereby the appointment of attorney was rejected. On this date the learned Qazi passed a detailed order on these applications which needs no mention. He, however, refused to set aside the ex parte decree.

 

In the above paragraph I have tried to briefly narrate in chronological order the method and manner in which the proceedings were conducted. From the above discussion it would become obvious that the learned Qazi committed several glaring irregularities which may be summed up as under:‑—-

 

(a) He obtained from the parties list of witnesses before framing of the issues and did not examine all the witnesses which had been cited in these lists.

 

(b) He did not summon the witnesses of the appellant for whom he had made an application. These witnesses could not be produced by him at his own responsibility because at least two of them were Government servants They should have therefore been summoned by the learned Qazi.

 

(c) The learned Qazi acted against the provisions of Order XVIII, C. P. C. examining the evidence of the defendant before the closing of the evidence of plaintiff.

 

(d) He allowed the application for setting aside ex parte decree only partially without assigning any reasons for not allowing the application in entirety so as to give an opportunity to the appellant to examine his evidence.

 

(e) He illegally refused to allow the attorneys to be appointed by the appellant to conduct the case.

 

3. An appeal was filed to the Majlis‑e‑Shoora against the ex paste decree dated 24 3‑1964 awarded by the learned Qazi to the respondent which was allowed and the case was remanded to the learned Qazi by Majlis‑e‑Shoora who added six more issues to the existing issues.

 

After remand, the case was fixed on 20‑3‑1965 when the appellant attend ed the Court of learned Qazi. The learned Qazi added four more issues to the said eleven issues. On 29‑4‑1965 when the case was fixed for hearing the appellant remained absent as such the suit was decreed ex parte. In fact the learned Qazi confirmed the decree passed by him earlier.

 

4. An appeal was filed against the order of learned Qazi which was dismissed by Majlis‑e‑Shoora on 17‑2‑1966. The Majlis‑e‑Shoora held that the absence of the appellant on 29‑4‑1965 was wilful and therefore the learned Qazi, Bela had rightly proceeded ex parte against him and decreed the suit in favour of the respondent.

 

5. Against the orders of the learned Qazi and Majlis‑e‑Shoora the appellant filed an appeal in this Court and the case was remanded back to the Majlh‑e‑Shoora for decision on merits. I may mention here that the Majhs‑e- Shoora in its order dated 17‑2‑1966 had not touched the merits of the case and had affirmed the decision of learned Qazi Bela only considering the point whether there was any justification to set aside the ex parte decree or not and whether the absence of the appellant on the date of hearing was adequately explained or not.

 

6. In this appeal the learned counsel for the appellant has contended that: (1) the learned Qazi absolutely failed to appreciate the evidence lea to substantiate mat the father and grandfather of the respondent were alive when the safe transaction took place as the learned Qazi instead of assessing the evidence has simply rejected his evidence on the ground that the evidence in respect of death of tee father and grandfather of the respondent was acceptable as against the evidence that they were alive; (ii) no proper opportunity of leading evidence was given to the appellant in spite of the fact that he repeatedly applied for summoning of witnesses; (iii) if the evidence that father and grandfather of the respondent were alive when the transaction in question took place; the right of pre‑emption not being heritable to the respondent; and (iv) the suit property was sold by Sabir to the appellant in 1956 whereas the suit was filed on 17‑1‑1964, on the respondent’s attaining majority. The suit was therefore barred by time as the provisions of Limitation Act applied to Baluchistan with effect from 14‑10‑1955 by virtue of Central Laws (Statute Reforms) Ordinance, 1960.

 

7. The learned counsel appearing for the respondent has on the other hand argued that: (i) The irregularities committed by the learned Qazi during the trial, the suit were completely washed off when his order was set aside by Majlis‑e‑Shoora on 7‑12‑1964 and therefore the same cannot be taken into consideration. According to him fresh enquiry was held in the light of six more issues framed by the Majlis‑e‑Shoora and ex pate decree was passed on the basis of the evidence which was led by the respondent on these additional issues as well as the old issues. (ii) No issue in respect of limitation was framed and the point as to whether the suit was time‑barred or not was not decided. This question being a new question requires investigation. He further argued that this new point cannot be raised in second appeal. (iii) In the appeal filed earlier in the High Court the learned counsel then appearing for the appellant had only urged that the matter may be remanded to the Majlis‑e‑Shoora for decision on the basis of evidence already available on the record of the case and therefore, the plea that evidence was not allowed to be recorded and such other pleas are not available to the appellant as he had willingly contented with the position on record at that stage and therefore no such argument was advanced before the High Court which could persuade the Court to remand the case so that re maining evidence of the appellant could be recorded.

 

8. I propose to deal with the arguments raised by the learned counsel for the parties one by one the first contention of the learned counsel for the appellant is that the evidence led by the appellant to prove that the father and grandfather of the respondent were alive when the disputed transaction took place was rejected only because the learned Qazi basing his argument on some principle, which is at least unknown to the Evidence Act held that the evidence in respect of death was acceptable ‘to him being more reliable rather than the evidence led to prove that both of them were alive at that time. According to him the evidence of the appellant produced to prove this point was not all appreciated and under said notion which was apparently illegal, the learned Qazi refused to consider the evidence led to prove that the father and grandfather of the respondent wire alive when the sale transaction took place. I am unable to agree with this contention as the learned Qazi has held after the perusal of the evidence that the evidence in respect of the death of the father and grandfather of the respondent at the time of the sale transaction was more reliable. Even otherwise in second appeal it would not be my task to appreciate the evidence. The learned counsel has not urged that it was the case of misreading of evidence. All what he has urged is that the evidence was not taken into consideration with which proposition I do not agree.

 

9. The second k contention of the learned counsel is that no proper opportunity of leading evidence was given to the appellant and that the case was wrongly decided ex parte. I have examined the case file thoroughly and found that previous to 29‑4‑1965 i e. the date on which the ex pare proceed ings were ordered against the appellant the case was heard on 10‑4‑1965. The order‑sheet dated 10‑4‑1965 shows that both the parties were required to put their respective signatures in token of their acknowledgement about the next date of hearing i.e. 29‑4‑1965. The learned counsel has attempted to argue that the procedure of obtaining signatures of the parties on the order‑sheet was not adopted by the learned Qazi on all the dates of hearing fixed in the case and it was only on 10 4‑1965 that the signatures of the parties were obtained on the order‑sheet, therefore looking to the general practice of the learned Qazi, it was apparent that the signatures of the respondent and thumb‑impression of the appellant on the order sheet dated 10‑4‑1965 were not genuine. According to him the same were manipulated by the learned Qazi who is alleged to have been biased against the appellant throughout the trial of the case I would repel this contention as presumption of correctness is attached to the official record and therefore at this late stage it cannot be argued that the signature of the respondent and the thumb‑impression of the appellant obtained on the order‑sheet dated 10‑4 1965 were not genuine. Apart from the fact that a presumption of correctness is attached to the official record I may further mention that this plea was not raised before the High Court in the earlier appeal and therefore it cannot be allowed to he raised for the fist time at this belated stage. Even otherwise, there seems to be no cogent reason why the learned Qazi would be biased against the appellant.

 

10. The next argument of the learned counsel for the appellant was that in view of the decision of this Court in Abdul Raziq and others v. Khuda‑e- Dad (P L D 1974 Quetta 18) the right of pre‑emption is not a heritable right and if the evidence of the appellant to this effect is accepted that the father and grandfather of the respondent wee alive at the stage the sale transaction in dispute took place then the right of pre‑emption accrued to them which they did not assert.

 

The respondent in these circumstances, would be regarded as disabled in law to assert this right. I respectfully follow the view held in the above cites case but as I have already pointed out that it is a question of fact as to whether the father and grandfather of the respondent were alive at the stage when transaction in question took place this point hoe already bier decided by the learned Qazi against the appellant and it cannot be re‑opened in second appeal. Even otherwise the learned Qazi, Bola and the learned Majlis‑e- Shoora have reached the conclusion that the father and grandfather of the respondent were not alive when the transaction in question took place. They have arrived at this conclusion alter thoroughly perusing, assessing and appreciating the evidence. In the result, in my o opinion no interferon a would be justified as far as this finding is concerned. ‘This contention is also devoid of force and is therefore repelled.

 

11. The learned counsel for the respondent next contended that by virtue of Central Laws (Statute Reforms) Ordinance, 1960 the Limitation Act applied to Baluchistan with effect from 14‑10‑1955. For substantiating this contention he has placed reliance on Dost Mohammad v Rais Satik (1). In this case it is held that the provisions of Limitation Act were extended to Baluchistan by dint of promulgation of Central Laws (Statute Reforms) Ordinance, 1960. In view of the fact that Limitation Act was applicable to Kalat Division, the learned counsel further contended that the period for filing of suits for pre‑emption could not be extended as envisaged by sections 6 and 7 of the Limitation Act because the benefit of legal disability such as minority or insanity was not applicable to these suits. For the convenience of reference I reproduce below sections 6 and 8 of the Limitation Act:‑—-

 

“6. Legal disability–( P L D 1962 Quetta 82) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be recknoned, a miner or insane, or an idiot, tie may institute the suit or make the application within the some period after the disability bas ceased, as would other wise have been allowed from the time specified therefore in the third column of the Schedule.

 

8. Nothing in section 6 or in section 7 applies to suits to enforce rights of pre‑emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of persons affected thereby, the period within which any suit must be instituted or application made.”

 

A plain reading of section 8 would reveal that the provisions of sections 6 and 7 of the Limitation Act have specifically been made inapplicable to the suits filed to enforce the right of pre‑emption. As sue the legal position would be that in all other cases except the case where right of pre‑emption is Sought to be asserted a person would be entitled to file a suit when the disability or insanity or minority has ceased to exist. But ac far as the suits of pre‑emption are concerned, the same shall have to be filed immediately after the cause of action has accrued for filing the same.

 

In the commentary “On the Law of Pre‑emption in the Punjab” by Sir Shadi Lal, it is said that the provisions of sections 6 and 7 of the Limitation Act being inapplicable to pre‑emption suit (vide section 8 of that Act) no extension of time can be allowed on account of plaintiff‑pre‑emptor being a minor, insane or an idiot. Krishna Swami in his book, “The Indian Limitation. Act (V, Edition)” has said on page 205 that “the provisions excluding suits for pre‑emption from the operation of sections 6 and 7 were not present in the Acts of 1859 and 1871 and were first introduced in the Act: of 1877. The policy of Legislature is that suits of pre‑emption should be brought with as little delay as possible. Hence this section is not made to apply to such suits.” This point also came up for consideration in the two cases i.e. Hakim v. Mst. Hussain Bibi (32 IC3 587) and Wiswanathanchetty and others v. S. Ethirajulu Chetty and others (A I R 1924 Mad. 87). In both these cases it was held that the minority of the plaintiff was n of an element which could be taken into con sideration in dealing with the question of limitation under Article 10 of the Limitation Act. It is therefore manifest that the intention of the Legislature is that the suits for pre‑emption should be filed immediately after the cause of action has occurred for filing the same. In case the person whom this right accrues is ‑minor, insane or idiot, the suits should be filed through his guardian because, otherwise, if the time is enlarged by virtue of section 6 to such an extent that the disability ceases to exist, many a complications are likely to arise. The period so spent may be quite large and the property may change several hands till the suit is instituted. It is in all probability to avoid such complications that the operation of sections 6 and 7 of the Limita tion Act has been specifically exclude d by virtue of section 8 of the Limitation: Act. The policy of the Legislature is that suit for pre‑emption should he filed immediately after the sale transaction has taken place as in such a case it would be convenient for the purchaser to vacate the possession of the land purchased by him in favour of the pre‑emptor. The learned counsel for the respondent bas argued that the principles of Mohammadan Law apply to the suits of pre‑emption and since Mohammadan Law permits that a minor may wait for filing the suit till such time that he attains majority, therefore, the respondent was justified in bringing the suit after the disability of minority standing in his way ceased to exist. According to him, the principles of Limitation Act would not apply to this cage. I am unable to agree with this contention as by virtue of Central Laws (Statute Reforms) Ordinance, 1960 the Limitation Act is applicable to the whole of Baluchistan with effect froth, 14‑10‑1955. The point as regards the applicability of Limitation Act had come up for the consideration of their Lordships in Dost Mohammad v. Rais Sarik and it was held that the Limitation Act was applicable to Kalat Division. In view of this position it cannot be argued that the Limitation Act does not apply to this case. The learned counsel for the respondent has further argued that this point was not specifically taken up in the written statement or at, any subsequent stage i.e. before the Majlis‑e‑Shoora or the High Court and, this being a new point requiring investigation cannot be taken up for con sideration for the first time at this stage. He has placed reliance on Lal Mohammad v. Abdul Mann Shaikh (PLD 1962 Dacca 467) and Ghulam Abbas v Sharfoo (P L D 1,970 Lab. 79’3). Ins the latter case it is held that in second appeal a fresh plea which was not specifically raised in the lower Courts cannot be given a serious credence. Whereas in the first mentioned case it is held that new plea necessitating investigation of facts cannot be entertained in second appeal. I have perused the file of the case and found that in the written statement it has been clearly stated that the appellant was in possession of the suit land for about 13 years. In the statements of Salimullah and Abdul Wahid it had been specifically stated that when the suit was filed the appellant was already in possession of the suit land since 8/9 years. It shows that when the suit was filed in 1964 the appellant was already in possession of the suit land for about 8/10 years. No suit was filed during this period and this is admitted by the respondent who has stated that he was minor during this period which fact precluded him from filing the suit for a number of years. It thus goes without saying that the suit was not filed on behalf of the respondent within the statutory period of one year. Article 10 provides one year’s period for filing of the suit for enforcing the right of pre‑emption from the date when the purchase takes physical possession of the property, the sale of which is sought to impeached. The a learned counsel for the respondent further argued that there was no evidence on record to show the date of the sale which the respondent wanted to impeach and therefore the application of Article 10 of the Limitation Act would become doubtful. This argument carries no weight as the witnesses have categorically stated that the sale had taken place 8/9 years before the filing of the suit whereas in the written statement it was stated by the appellant that he was in possession of the suit land for about 13 years. There is no evidence to rebut these assertions.

 

12. The learned counsel for the respondent has further opposed the consideration of point of limitation on the ground that in the appeal filed’ before the High Court earlier to this appeal this point had not been raised at all. On the other hand, the appellant had himself conceded that the evidence recorded by the learned Qazi was sufficient for the adjudication of the matter. All what the learned counsel then appearing before the High Court had urged was that on the basis of the record as it then existed the learned Majlis e‑Shoora should be directed to decide the case. In this connection he has referred to para. 7 of the judgment of the High Court dated 14‑1‑1969 which reads as under:‑-

 

“In support of the appeal, Mr. Saeed‑uz‑Zaman learned counsel for the appellant has urged only one point. He has contended that the Majlis‑e‑Shoora should have gone into the merits of the case and decided the dispute between the parties on the evidence already on record. The learned counsel contended that even if the Majlis‑e Shoora had come to the conclusion, that the appellant wilfully failed to appear before the learned Qazi, they should have considered the case of the parties on merits and decided the dispute between them.”

 

13. I have carefully considered the arguments of the learned counsel. As I have already pointed out in earlier discussion that there was sufficient material on record to show that the suit of the respondent was barred by time by several years and the concession granted by section 6 of the Limita tion Act not being available to him the suit should have been filed as soon as the cause of action bad accrued for the filing of the suit. This being a point of law, it can be allowed to be urged at this stage. In fact this point should have also been considered by Majlis‑e‑Shoora when the case went before it on remand by this Court. However, the contention of the learned counsel that at this stage the point of limitation or any other point which had not been specifically raised at the stage when appeal wa4 filed in the High Court has no substance. I find that the point of limitation was raised in the written statement and evidence was alto led to substantiate the same. This question therefore, does not require further investigation. The case‑law relied upon by the learned counsel for the respondent has no relevance to the instant case.

 

14. For the foregoing reasons I am of the considered view that the claim of pre‑emption made by the respondent and the subsequent suit brought to assert the right of pre‑emption were both time‑barred. This being the position, the claim of the respondent cannot succeed. The impugned order of the learned Qazi. Bela whereby he had passed ex pane decree in favour of the respondent on 29 4‑1965 and the order of Majlis‑e‑Shoora dated 26‑8‑1969 whereby the said decree was confirmed are hereby set aside and the suit of the respondent is dismissed. In the circumstances of the case the parties are left to bear their own costs.

 

 

S. A. H. Appeal allowed

 

 

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