2006 PLP 855 (YLR)

JAWWAD S. KHAWAJA, J.

The respondent has been duly served. None has appeared on his behalf despite service. He is, therefore, proceeded against ex parte.

2. Allah Ditta respondent/plaintiff filed a suit on 17-9-1997 to seek possession of the suit-land through pre-emption. This suit was dismissed by the learned trial Court on 18-2-2004 on the ground that the respondent/plaintiff had failed to prove Talbs. The respondent filed an appeal which has been allowed by the learned A.D.J., Jhang on 8-11-2004, whereby the findings on the question of Talbs recorded by the learned trial Court have been reversed.

3. The case of the respondent/plaintiff was that he had received information of the sale on 17-9-1997 at 8-30 a.m. through Lal Khan (P.W.4). Lal Khan also deposed to the same effect when he appeared as a witness on 21-6-2000. During his civil service, however, apart from the lack of certainty as to the source of his own knowledge of the sale, he also deposed that he had informed the respondent of the sale about four to five years earlier. According to learned counsel, if the dates are calculated the testimony of P.W.4 would show that he had informed the respondent of the sale in 1995 or 1996.

4. The above discrepancy among others was noted by the learned trial Court while holding that the Talbs had not been proved through credible witnesses. The learned Appellate Court has, however, proceeded to hold that the witnesses were illiterate and were not expected to give dates with exactitude. Learned counsel for the petitioners, however, states that in their own testimony, the witnesses produced by C the respondent/plaintiff gave dates with exactitude. Even Lal Khan (P.W.4) stated with certainty that he had informed the respondent of the sale at 8-30 a.m. on 17-9-1997. This statement, which sets out the exact moment in time when information of the sale was given to the respondent, is contrary to the finding of the learned appellate Court that P.W.4, being illiterate, was not expected to give the date and time with exactitude. On the other hand, if the witnesses were indeed incapable of giving exact dates, their testimony to the contrary ought to be disbelieved as having been tutored.

5. The learned appellate Court has not, therefore, applied a consistent standard in appraising the testimony of the P.Ws. The above-noted circumstances have not been controverted by the respondent/ plaintiff due to his absence despite service. These are material aspects of the case, duly noted by the learned trial Court.

6. Furthermore, the learned appellate Court has not met the reasoning of the learned trial Court appearing in the judgment of the learned trial Court. For the foregoing reasons, I find that the learned appellate Court has exercised its jurisdiction with material irregularity. In the circumstances, the appellate decree dated 8-11-2004 is not legally sustainable and is, therefore, set aside. As a consequence, the dismissal of the suit filed by the respondent/plaintiff vide decree of the learned trial Court dated 18-2-2004, is upheld. H.B.T./M-1290/L??????????????????????????????????????????????????????????????????????????????? Revision allowed.