Muhammad Iqbal

IN THE COURT OF DISTRICT JUDGE, RAJAN PUR.

Muhammad Iqbal

Vs.

Anwaar Ullah

APPEAL WRITTEN ARGUMENTS ON BEHALF OF APPELLANT MUHAMMAD IQBAL. Briefly stating the facts of the appeal are: 1.

That the respondent (Anwaar Ullah) purchased the residential house situated in Ward No. 3 Jam Pur through Registered Deed No. 637 registered on 2.6.1977 from Muhammad Shafique Khan son of Hassan Muhammad Khan for Rs. 25,000/-. The boundary situation given in the registered Sale Deed is: -

2.

North:

Bazar,South:

House of Mumtaz Khan

West:

House of Muhammad Iqbal (plaintiff/appellant)

East:

House of Mumtaz Khan.

That the appellant instituted the suit for possession through pre-emption having the superior right of pre-emption being owner of contiguous house to that in dispute under Punjab Pre-emption Act 1913 on 29.5.1978.

3.

That the defendant/respondent contested the suit and following issues were framed: (i)

Whether the plaintiff has got superior right of preemption? OPP

(ii)

Whether the sum of Rs. 25,000/- was fixed and paid in good faith? OPP

(iii)

What was the market value of the suit property at the time of sale? OPP

(iv)

Whether the custom of pre-emption was prevalent in locality before the commencement of the Pre-emption Act 1913? OPP

(v)

Whether some shop is attached to the suit property? If so its effect? OPP

(vA) Whether the report of the Local Commissioner is liable to be set aside? OPD (vB) Whether the suit property was pre-emptable? OPD. (vi)

Relief. The plaintiff got recorded his statement as P.W.1 and produced map Ex.P.1. Copy of impugned Sale Deed Ex.P.2, Sale Deed No. 697 Ex.P.3, Sale Deed No. 439 dated 24.4.77 Ex.P.4, Sale Deed No. 381 dated 9.4.77 Ex.P.5, Sale Deed No. 2262 dated 300.11.76 Ex.P.6, judgment in case named Abdur Rahim Vs. Hafiz Ghulam Hussain dated 30.7.88 Ex.P.7, judgment titled Gaman Vs. Bakhsh dated 30.4.1910 Ex.P.8. The defendant/respondent produced Mr. Saeed Ahmad D.W.1 and he himself got recorded his statement as D.W.2 and produced six documents. Transfer order of property house/shop No. 315/316 Ward No. IV Jam Pur dated 12.5.77 Ex.D.1, challan dated 24.7.61 Ex.D.2, challan dated 30.9.61 Ex.D.3, challan dated 14.3.72 Ex.D.4, challan dated 24.7.61 Ex.D.5, Exchange Deed dated 30.12.1975 Ex.D.6 and closed his evidence.

4.

That on 18.7.78, the learned Civil Judge appointed Mr. Mian Muhammad Aslam Khan as Local Commissioner and directed him to assess the market value of the suit property and examine the nature of the suit property. The Local Commissioner visited the spot & recorded the evidence produced by the parties. The defendant/respondent produced Sher Muhammad D.W.1, Nazar Muhammad D.W.2, Haji Nizam-ud-Din D.W.3, Muhammad Yasin D.W.4, Muhammad Ayub D.W.5, Muhammad Shah Jahan D.W.6, Anwaar Ullah D.WE.7 and produced photo-copy of transfer order Ex.D.1, challan Ex.D.2 to D.5. In his statement, the defendant/

respondent admitted the receipts of the rent sent by the plaintiff/appellant through money order and those were exhibited as Ex.P.1 to P.4 and his signature on these receipts Ex.P.1/A, P.2/A, P.3/A and P.4/A. The

plaintiff

produced

Ghulam

Yaseen

P.W.1,

Muhammad Yousaf P.W.2 and the plaintiff Muhammad Iqbal as P.W.3 and Sale Deed No. 2262 dated 30.11.76, Sale Deed No. 387 dated 9.4.77, Sale Deed No. 439 dated 28.4.77 and Sale Deed No. 617 dated 16.6.77. The learned Local Commission submitted his report on 26.7.78 thereafter the plaintiff submitted his written objections and the court framed issue No. 3A. 5.

That the court of Mian Maqsood Ahmad Buttur Civil Judge, D.G. Khan vide its judgment and decree dated 30.1.1979 dismissed the suit of the plaintiff/appellant.

6.

That the appellant assailed the judgment and decree dated 30.1.1979 before the learned District Judge and the court of Mr. Manzoor Ahmad Kamboh District Judge D.G. Khan accepted the appeal of the appellant and set aside the judgment and decree vide its judgment and decree dated 7.4.1980.

7.

That

the

respondent/defendant

filed

the

R.S.A.

No.

367/80before the Hon’ble High Court and the Hon’ble High Court vide its judgment dated 13.11.2000 accepted the appeal and remanded the case to the learned Additional District Judge for fresh decision. 8.

That the judgment and decree of the learned Civil Judge Jam Pur is not sustainable and liable to be set aside on the following: GROUNDS Issue No. 3A:

Whether

the

report

of

the

Local

Commission is liable to set aside? OPP The report of the Local Commission is not sustainable. (i)

That according to law, the issue which is to be proved by the party and the court is to decide the same, it cannot appoint a Local Commission in this regard.

In the instant suit, it was the duty of the defendant to prove that there was a shop at the time of sale in the suit property and the learned court was legally bound to decide the issue. Therefore, the court cannot appoint a Local Commission to determine this issue and fulfill the Lacuna. (ii)

That the learned Local Commission submitted his report on 26.7.78 and the appellant/plaintiff filed his objection on 30.7.78 and the learned court framed issue No. 3A. The respondent/defendant had not submitted his written reply of the objection filed by the appellant/plaintiff. This means that the respondent/ defendant has admitted the facts and point raised by the appellant/plaintiff in his written objection. When the submissions of the appellant/plaintiff are not rebutted, then it will be considered that the other party i.e. respondent/defendant has accepted the same and in this way the issue No. 3A being proved must have been decided in favour of the appellant/plaintiff. But the learned Civil Judge has not observed this legal position of the case and as such the decision of the learned Civil Judge is not in accordance with law and facts of the case.

(iii)

That so far as report is concerned, it is not based on facts and evidence produced by the parties. The learned Commission has ignored the oral as well as documentary

evidence

produced

by

the

plaintiff/appellant. In his documentary evidence, the appellant has produced the receipts of the money order as Ex.P.1 to P.4 and upon them the signature f the defendant/respondent as Ex.P.1/A to P.4/A. These documents were put to the defendant. While his statement was being recorded. He admitted these documents and also admitted his signature upon them.

He has not challenged these receipts in any forum. Therefore, these documents have sanctity in law and have upon the respondent/defendant. He cannot resile from

these

documents

and

his

admission.

Had he any objection he would have objected it in his statement or would have objected in any other manner. This means that the defendant/respondent has accepted and admitted that portion which he had rented out to the appellant/plaintiff as a “Baithak” and the same was used by the appellant as “Baithak” and not as a shop. The learned Local Commission has wrongly held that these are self prepared documents and as such he has not exercised his jurisdiction in legal manner. (iv)

That the defendant/respondent has appeared as D.W.8. In the cross-examination he has deposed: -

Moreover, the witnesses of the defendant/respondent have categorically admitted the fact that the property has been used as residential house.

This witness is not an eye witness and is just a hearsay one. Moreover, he is immediate boss of respondent/ defendant, therefore, is an interested witness. Anyhow, he has admitted that the Ansari Boot House and the Stock, which was hypothecated, is also present. He has admitted that the proceeding of Local Commission is going on in the room of the suit property, which the plaintiff claims to be “Baithak”. D.W.2 Nazar Muhammad has deposed: -

D.W.4 Muhammad Yaseen, D.W.5 Muhammad Ayub has said: Examination Incharge. They have not said that there is a shop in the suit property. Moreover, D.W.5 Muhammad Ayub does not know about the suit property.

The plain reading, the statements of the witnesses, it is crystal clear that they are not eye witnesses. They have not said that appellant/plaintiff has shifted the stock before him/them or in their presence. So far as documents produced by the defendant/ respondent before the learned Local Commission are concerned, they are not sufficient to prove that at the time of transaction of sale, the shop was existed in the

rent property. These documents are not supported by oral evidence. It can be said that oral evidence produced by the defendant/respondent negates his version. Ex.P.1 is the transfer order of the properties No. 315 and 316, which are consisted of house and shop. This order was issued on 12.5.77. While Ex.D2. dated 24.7.61, Ex.D3 dated 30.9.61, Ex.D4 dated 14.3.72 and Ex.D5 dated 28.8.671 are receipts of the payment of installments of the property which was transferred to Mr. Muhammad Shafique. D.W.2 Nazar Muhammad has categorically deposed that Muhammad Shafique had no other property, therefore, he with his family had lived in this property. The defendant/respondent has himself said that he had bought the suit property after owing debt from the Bank and the bank gives loan for the purchase of house and not of a shop. He has said that before the purchase of the suit property, he had deposited the map of the suit property. In that map, the room on the Northern side in the suit property has been shown as “Baithak”. The impugned sale deed is also prepared at the instructions of the defendant and the Vendor. In this sale deed, they have not shown any part of the property as shop. It means that sale property had been used as residential house since 1961 i.e. from the time of allotment of the suit property to Muhammad Shafique. In the light of above submissions, the report prepared by the Local Commission is not sustainable. It is based merely on suppositions and junctures. (v)

That the respondent/defendant has not produced the learned Local Commission to prove his version. The court has not called him and recorded his statement. The appellant/plaintiff who had objected the report of the Local Commissioner was not given the chance to cross-examine him. Moreover, the report of the Local Commissioner is not produced in evidence and is not

exhibited in evidence, therefore, the learned court cannot rely upon it. It cannot be read in support of the version of the defendant/respondent. The learned Lower Court has given great emphasis on it. It is not the piece of evidence and can not be relied upon. The appellant relies on the following ruling: In the light of above submissions, the appellant has proved the issue No. 3A and the respondent/defendant has failed to rebut the same. Therefore, this issue may very graciously be decided in form of the appellant. ISSUE No. 5A:

Whether the property was pre-

emptable? OPD. That the learned trial court has not decided this issue in accordance with law. He has totally ignored the evidence produced by the parties. He has relied upon the report of the Commission, which was neither proved nor exhibited in evidence. He has relied upon the supposition. He has ignored the admission made by the defendant/respondent while appearing as P.W.2 before the court and ignored the document Ex.D2 the impugned sale deed. (a)

That the appellant has produce the impugned sale deed as Ex.P.2. The contents of the Ex.P.2 are as under: -

This sale deed was registered on 2nd June, 1977. The defendant/respondent himself appeared before the SubRegistrar accepted the sale deed and put his signatures in this regard. He neither objected about the contents of the sale deed before the Sub-Registrar nor he challenged the same in any

manner before any competent court of jurisdiction. He has not got it rectified in any manner uptill now. The defendant appeared as D.W.2 and deposed: -

Moreover, in his written statement, the respondent/ defendant has written: -

In the plaint, the appellant/plaintiff has described the surrounding of the suit property

According to the sale deed, the surrounding of the suit property is: This means that the appellant has filed suit about the property mentioned in the sale deed Ex.P.2. The respondent has himself admitted in his statement that he has given the property to the National Bank in lieu of loan and the property is still pledged with the Bank. The respondent has deposed that he purchased the suit property after getting the loan from the bank and the bank gives loan only to purchase the house. It does not give loan for the purchase of shop. Because the suit property is a residential house, therefore, the National Bank has sanctioned its loan for the purchase of the house and not of a shop. The manager of the Bank Mr. Sher Muhammad, who appeared before the SubRegistrar and produced draft No. 857210 dated 2.6.77 as sale price also did not object about the contents of the sale deed

and put his signature as witness and identified the defendant/ respondent/purchaser. Now, the respondent/defendant cannot resile from his admission and is estopped by his conduct to take any other plea. The law is very clear. (vi)

That so far as documents Ex.D1 transfer order No. 35980 dated 12.5.1977 and receipt Ex.D.2 to D.5 are concerned, it is submitted that the property No. 315-316 was allotted to Mr. Muhammad Shafique in the year 1961. According to the statement of Mr. Nazar Muhammad D.W.2, Muhammad Shafique had no property, therefore, he and his family had resided in this property. It means that the property has been used as residential house since its allotment to Muhammad Shafique, therefore, the entry in the transfer order Ex.D.1 is against the situation of the suit property because the department issues the transfer order according to the entries in its record at the time of partition i.e. 1947. They have not inspected the premises to verify the position at the spot at the time of issuance of transfer order.

(vii) Furthermore, in the sale deed, the vendor has not given the number of the suit property. He has given the detail of boundary of it. And the defendant has not written in his written statement that the number of the suit property is 315-316. According to law the parties are bound to follow the pleading and they cannot bring a new fact without getting amendment in the pleadings. If they went to do so, they should get the pleading amended

as

provided

by

law.

The

defendant/

respondent has not linked the suit property with the number given in Ex.D.1. (viii) In the written statement and evidence, the defendant has tried to prove, that a shop is situated on the Northern side of the suit property. He has not said that suit property is consisted on shop and house. In this way,

the respondent/defendant has failed to prove his version that suit property is a shop and not a residential house. (ix)

If for the sake of documents, it is said that a small portion of the suit property is a shop, even then the suit of the appellant/plaintiff is decretable. Because the area of the suit property is 4-1/2 Malras and the area of the shop is not more than a half marla. It means that the major portion of the suit property is used as residential house. Therefore, it does not effect the right of preemption of the appellant/plaintiff. In the above said arguments, it is humbly submitted that the judgment and decree of the Civil Judge dated 30.1.1979 is not sustainable and liable to be dismissed. Therefore, the impugned

judgment

&

decree

may

very

graciously be set aside and the suit of the appellant be decreed with costs throughout. Any other relief, which the learned court thinks fit, may very graciously be granted. Humble Appellant, Dated: ________ (Muhammad Iqbal)

Through: Syed Muhammad Afaq Shah, Advocate High Court,

Qasim Raza Khokhar, Advocate High Court, 93-District Courts, Multan.

Punjab Pre-emption Act, 1913---S-5. Law of Evidence S-115, Estoppal: - Qanoon-e-Shahadat S-114 Every case should be decided upon the particular circumstances of the case. 37 PLR 630 160 I.C. 349 AIR 1935 Lah. 808 The use of the property at the time of the sale. AIR 1925 Lah. 544 26 PLR 535 91 IC 675 47 PLR 1915 27 I.C. 799 When property is used for more than one purpose. The primary and more important of such purpose is to be considered. 26 PLR 635 AIR 1925 Lah. 544 91 I.C. 675 71 I.C. 746 “Shop” the expression does not include every “Business premises” in general sense of the word. The fact that a carpenter works in a plea where he resides does not turn the building into a shop. AIR 1927 Lah. 328 100 I.C. 910 PLD 1971 Kar. 514 1981 CLC 361 Commission. PLD 1978 Lah. 31 PLD 1978 Lah. 116 1988 MLD 1457 88 CLC 1861 93 CLC 1361 Estoppel. PLD 1981 S.C. 282 PLD 1978 Lah. 829 PLD 1962 S.C. 244 PLJ 1981 S.C. 664 1989 ClC 2140 1989 ClC 1850 PLD 1950 Lah. 196 1987 MLD 356 PLD 1973 Kar. 309 1992 SCMR 1721 PLD 1958 S.C. (A.J.K) 5