2003 PLP 1489 (CLC)

Irshad Ahmed Qureshi for Respondent. Date of hearing: 29th April, 2003. Through this regular second appeal the appellant has challenged the judgment and decree passed by the learned Civil Judge dated 28-3-1995 by virtue of which he dismissed the suit for possession through pre-emption that the appellant failed to prove the requisite Talbs. On appeal the judgment and decree passed by the learned trial Court was confirmed vide judgment and decree dated 25-7-1996.

2. Arguments advanced by learned counsel for the appellant are that the plaintiff/appellant has specifically asserted the date of knowledge of the sale about one month and 25 days after the registration of sale-deed. The defendants/respondents have not denied in the written statement the contents of paragraph 5 of the plaint and in this way these contentions are admitted to be true. The plaintiff/appellant was not required by law to disclose the source of information of the impugned sale. That both the learned Courts below have non-suited the plaintiff/appellant that he has failed to name the witnesses the approximate time and date stated by P.Ws. being sound and that the plaintiff/ appellant has failed to prove that he came to know about the sale one month and 25 days after registration and the notices Exh.P.3 were not sent within a period of 14 days. In paragraph 5 of the plaint the plaintiff/appellant had mentioned that he came to know about the sale through some source and he has not mentioned as to what was the source and he has also not mentioned that he came to know about the sale from P.W.1 Muhammad Latif. This omission on the part of the plaintiff/appellant is material as in the same paragraph the plaintiff/appellant has admitted that after Talb-e- Muwathibat he took Qasim, Rehmat and Muhammad Latif to the defendants, relies on Haji Noor Muhammad v. Abdul Ghani and others 2000 SCMR

329. According to this judgment the leave to appeal was granted by the Honourable Supreme Court to consider whether it was mandatory to give in the plaint for a suit for possession by pre-emption the particulars and details of the date, time and place of Talb-e -Muwathibat and also the names of the witnesses in whose presence said Talb was made, therefore, the reasoning given by the learned Courts below are not sustainable and sufficient.

3. Learned counsel for the respondents submits that the judgment quoted by learned counsel for the appellant is irrelevant. The material Issue No.2 was about Talbs, which was not proved, the appellant took contrary stand and there is contradiction as to the stance taken by P. W. 1 and P.W.2. The High Court has to be very careful while deciding the case in regular second appeal as according to the judgment of the superior Courts the factual controversy set at naught by the learned Courts below and even if the finding is erroneous should not be interfered.

4. I have heard the learned counsel for the parties and perused record. In the evidence on record plaintiff/appellant has admitted after Talb-e-Muwathibat he left Qasim, Rehmat and also to the defendants' house. Muhammad Latif P.W.1 appeared stated that the plaintiff came in his village after one month and days of the sale and he told about the sale of the disputed property. When he heard he said that he is in need of the property and he will take back the property. At that time Qasim and Rehmat and other people were present. In his cross-examination he stated that plaintiff came to his house, at that time there was nobody in the house and plaintiff told him that he requires the property and he and the plaintiff went out and reached to the shop of Ghulam Rasul and Muhammad Yousaf, there Qasim, Rehmat and other people were present. It was discussed over there and they stayed at the shop for one hour and there the plaintiff said that defendants have purchased the property and he will file a suit for pre-emption for this property. P.W.2 Rehmat Ullah supported the evidence of P.W.1 and stated that after one month and 20/25 days the plaintiff/appellant came to his village and came to his shop and stated that he will take back the disputed property. P.W.3 Abdur Rasheed appeared as his own witness.

5. From the perusal of evidence on record and the judgments and decrees passed by the learned Courts below it is clear that both the learned Courts below while discussing the evidence are of the view that Talb-e-Muwathibat has not been made by the plaintiff and decided Issues Nos. 2, 3, 4, 6 and 9 against the plaintiff/appellant and dismissed the suit filed by the plaintiff/appellant. Prom the perusal of evidence it is clear that Muhammad Latif a star witness in cross-examination has admitted that the plaintiff/appellant was not called by any one. He came from Lahore himself. He is cultivating 5-1/2 acres of land belonging to the plaintiff and the plaintiff had come to obtain the produce of the crops. In his cross-examination he also admitted. How is it possible that this witness who is a cultivating tenant tinder the plaintiff and is cultivating tenant under defendants (vendees) of disputed land and its possession is taken from him after sale deed, keeps mum about the disputed sale and waits for the plaintiff's arrival for disclosure of sale.

6. Learned counsel for the plaintiff/appellant has failed to prove any material mistaken assumption by the learned Courts below and has also to convince that the fallacy of the learned Courts below in the evidence is fatal in the eye of law. The High Court has to entertain a second appeal on the ground of erroneous finding of fact. However, gross and inexcusable the error may seem to be there is an error or defect, which is materially and legally fatal in decision of the case on merits (Abdul Majid and others v. Khalil PLD 1955 FC 38).

7. Keeping in view the evidence on record and the judgments and decrees passed by the learned Courts below no legal infirmity is found out, the instant regular second appeal is dismissed. S.M.B./A-801/L. Appeal dismissed.