2018 PLP 28 (YLRN)

HABIB ULLAH AMIR, J.

Through this civil revision, Allah Ditta petitioner has assailed vires of judgment and decree dated 11.01.2012 of learned Civil Judge, Gujrat whereby suit of petitioner for possession through pre-emption was dismissed and judgment dated 12.06.2014 of the learned Additional District Judge, Gujrat, who dismissed appeal of petitioner.

2. Briefly, the facts giving rise to this petition are that the petitioner instituted suit for possession through pre-emption with contention that the land measuring 01-kanal, 18-marla in Khasra No.252, Khawat No.137, Khatooni No.301 and land measuring 5-marla, in Khawat No.36, Khatooni Nos.87 to 103 according to register Haqdaran-e-Zameen 2001-02 at village Bora Tehsil and District Gujrat was owned by Mohammad Siddique son, Ghulam Sugra, Ghulam Fatima daughters of Bagh Ali resident of village Bora Tehsil and District Gujrat and said land was purchased by respondent for Rs:79,000/- but in order to defeat petitioner's right of pre-emption an ostensible amount of Rs:3,00,000/- was incorporated in mutation No.1536 attested on 23.12.2004. On 01.01.2005 at 06:00 P.M. petitioner was at his residence when knowledge was gained about the sale through Mohammad Riaz son of Akbar Ali, whereafter he abruptly made jumping demand as he had superior right of pre-emption, subsequently notice of Talb-i-Ishhad was issued to respondent on 03.01.2005 offering him to receive sale consideration and transfer the property in the name of petitioner but respondent refused and this, constrained the petitioner to institute suit. Suit was controverted by respondent on different grounds and on divergent pleadings of parties following issues were framed by learned Civil Judge, Gujrat:-- ISSUES

1. Whether the plaintiff has superior right of pre-emption over the suit land? OPP

2. Whether the plaintiff has fulfilled the requirements of Talbs as per law? OPP

3. Whether the plaintiff has shown excess sale price of Rs:3,00,000/- instead of Rs:70,000/- in order to defeat the plaintiff's right of pre-emption, if so, its effect? OPP

4. Whether the suit is not properly valued for the purposes of Court Fee and jurisdiction, if so, its effect? OPD

5. Whether the suit is based upon false and frivolous facts? OPD 5-A Whether the plaintiff had got no cause of action to bring the instant suit? OPD 5-B Whether the plaintiff is estopped to sue? OPD 5-C If the suit stand decreed whether the defendant is entitled to recover registration expenses to the tune of Rs:21 to 22.000/-?

6. Relief.

3. After framing of issues, recording of evidence of parties and hearing the learned counsel for parties, learned Civil Judge vide judgment and decree dated 11.01.2012 dismissed suit of petitioner and feeling aggrieved, he preferred appeal which remained pending in the Court of learned Additional District Judge, Gujrat, however, the appeal of petitioner met with the fate of dismissal. Hence, this petition.

4. Arguments heard. Record perused.

5. It is claim of petitioner that on 01.01.2005 at 06:00 P.M. he was in his house where Mohammad Riaz brought into his knowledge the transaction of sale and in the same Majlis he fulfilled requirements of Talb-i-Muwathibat by making jumping demand and it has also been averred in suit that on 03.01.2005 notice of Talb-i-Ishhad was dispatched to the respondent which was duly attested by Muhammad Riaz and Khalid Mehmood and in order to prove that notice was dispatched to the defendant and that the defendant had received notice by attesting acknowledgment due Pervaiz Akhtar postman was produced in witness box who deposed that the registered A.D. was delivered to defendant and its acknowledgment due was Exh.P-2 and the defendant put his signatures on Exh.P-2, however, he conceded that many times post is delivered and acknowledged through relative of addressee in case of his non-availability of addressee and he has contradicted his own stance in cross-examination when he has deposed that he was not sure that the signatures on Exh.P-2 i.e. acknowledgment were of the defendant and this piece of evidence depicts that the plaintiff failed to prove the receipt of notice. The plaintiff Allah Ditta as PW-1 deposed that on the 3rd day at morning time, they went to their counsel and on his instructions notice of Talb-i-Ishhad was reduced into writing by his counsel which was read over to them and he along with witnesses attested the same and it is clear that in his evidence he has not given the specific day, month and year when notice of Talb-i-Ishhad was reduced into writing and dispatched to the defendant. PW-2 Mohammad Riaz, PW-3 Khalid Mehmood have deposed that on 03.01.2005 they accompanied with plaintiff came to advocate where notice was reduced into writing and notice Exh.P-1 i.e. photo stat copy of original was dispatched to the defendant, however, it is astonishing to note that scribe of notice was not produced in witness box. It has been laid down in case law reported as "Muhammad Rafique v. Muhammad Shafique and others" (2013 YLR 145) that the scribe of notice of Talb-i-Ishhad, if not produced in witness box, the pre-emptor fails to successfully prove Talbs in accordance with law.

6. In this case petitioner fails to produce scribe and in the circumstances when scribe was not produced in witness box, the plaintiff failed to prove requirements of Talbs. None of witnesses by appearing in the witness box has deposed that at time when notice of Talb-i-Ishhad was being reduced into writing the plaintiff referred to his Talb-i-Muwathibat and similarly none of them deposed before the Court that pre-emptors had referred to their Talb-i-Muwathibat at the time when notice was scribed in their presence by the Advocate and such omission on the part of plaintiffs is fatal to his claim in suit. In respect to this, reliance is placed on judgment reported as "Gohar Rasheed and 2 others v. Abdul Ghanni" (2013 MLD 1252), wherein it has been held as under:-- "Pre-emptor had neither referred to his first demand at the time of sending notices for Talb-e-Ishhad to the defendants nor his witnesses to the said notices deposed before the Court that the pre-emptor did refer to his Talb-e-Muwathibat at the time when said notices were scribed in their presence-Pre-emptor thus had not confirmed his Talb-e-Ishhad in accordance with law"

7. The learned counsel for petitioner has failed to produce order of Trial Court depicting that on the application of plaintiff secondary evidence in shape of copy of notice was allowed to be produced in evidence and admittedly notice Exh.P-1 produced on record is photo-stat copy of original one and in this regard reliance is placed on case law reported as "Razia Begum v. Abdul Aziz" (2006 CLC 772) wherein it has been held as under:- "Photostat copy was tendered in evidence--Such a private document had to be proved by producing its original and photostat copy was not admissible in evidence-Without bringing on record, original documents and without seeking permission for secondary evidence, notice of Talb-i-Ishhad would not be considered to have been proved, in accordance with law-Defendant having denied the receipt of notice, it was the duty of plaintiff/pre-emptor to prove performance of Talbs which, in absence of proof, could not be presumed true on account of non-raising of objection by defendant to admissibility of photostat copy of notice of Talb-i-Ishhad."

8. Moreover, plaintiff failed to prove the receipt of notice of Talb-i-Ishhad and the evidence of petitioner has been found with material contradictions as regard to the fulfillment of requirements of Talbs in accordance with law and in suit for possession through pre-emption the plaintiff is not only required to prove the requirements of Talb-i-Muwathibat but also that he is bound to establish requirements of Talb-i-Ishhad by sending a notice in writing, attested by two truthful witnesses under registered cover acknowledgment due to the vendee confirming his intention to exercise right of pre-emption but the evidence produced by plaintiff has been found with material contradictions and the plaintiff despite burdened to prove the requirements of requisite Talbs has failed to prove the same and once the Plaintiff fails to prove performance of Talbs in accordance with law, no decree for possession through preemption can be passed in his favour and in the circumstances, it is held that both the Courts below have rightly dismissed suit as well as appeal of petitioner after appreciating material, including evidence of parties and no illegality has been pointed out or found in the impugned judgments and decrees of the Courts below and it has also failed to substantiate that the learned Courts below committed illegality and material irregularity while passing impugned judgments and decrees and in the circumstances, this civil revision merits dismissal.

9. As a sequel of above discussion, civil revision in hand being devoid of merits is hereby dismissed. Parties are left to bear their own costs. ZC/A-59/L Revision dismissed.