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: -
North: Bazar,South: House of Mumtaz Khan
West: House of Muhammad Iqbal (plaintiff/appellant)
East: House of Mumtaz Khan.
2. 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 pre-
emption? 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 Sub-
Registrar 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 Sub-
Registrar 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 pre-
emption 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