2015 PLP 2539 (YLR)

AMIN-UD-DIN KHAN, J.-- Through this revision petition, the petitioner has challenged the judgment and decree dated 11-10-2003, passed by the learned Additional District Judge, Pasrur, whereby appeal filed by the petitioner was dismissed and the judgment and decree dated 10-6-2003, passed by the learned Civil Judge, Pasrur, whereby suit for pre emption filed by the plaintiff/petitioner was dismissed.

2. There are concurrent findings of fact recorded by the two Courts below whereby it has been held that the plaintiff/ petitioner failed to prove performance of talbs in accordance with law, therefore, Issue No.8 with regard to talbs was decided against the plaintiff/petitioner. With regard to right of pre-emption Issue No.9 was framed, the learned trial Court decided this issue in favour of the plaintiff/pre-emptor and the learned Ist appellate Court has also affirmed these findings but learned counsel for the respondents/vendees argues that the findings on this issue are not sustainable under the law.

3. I have heard the learned counsel for the parties and gone through the record appended with this petition as well as the findings recorded by both the Courts below. So far as the findings on talbs are concerned, there are material contradictions between the statements of the plaintiff and the witnesses and there are concurrent findings recorded by the two Courts below which cannot be ordinarily interfered with unless the revision petitioner proves before this Court that the findings are recorded on the basis of misreading and non-reading of evidence or some procedural defect fatal to the case has been committed, no such defect has been highlighted, therefore, findings recorded on the issue of talbs cannot be interfered with and the same are upheld, which are against the plaintiff/ petitioner.

4. So far as superior right of pre emption of the petitioner is concerned, learned counsel for the respondents has referred para 2 of the plaint and stated that the suit property has been purchased by the vendees/respondents through Mutation No.919 from Muhammad Saleem vendor and through Mutation No.920 from Razia Bibi, vendor wife of Muhammad Saleem, therefore, argues that there are two independent transactions of sale and one suit was not competent. Further while referring statement of the plaintiff when he appeared as P.W.2 before the Court he stated that he has only challenged the sale of land by Muhammad Saleem in favour of the vendees. In this view of the matter, learned counsel for the respondents states that the vendees became co-sharers in the suit property when sale in their favour by Razia Bibi through Mutation No.920 on the same day, i.e. 29-1-2000, has not been challenged, the learned counsel for the petitioner could not rebut these arguments. In this view of the matter, when there are two independent sales the plaintiff was required to announce his intention to exercise his right of pre-emption of each sale independently and also perform and prove Talb-i-Muwathibat and Talb-i-Ishhad independently of each sale and he was required to file separate suit of each independent sale. Admittedly alleged Talb i-Muwathibat and Talb-i-Ishhad are joint with regard to two independent sales. One suit has been filed with regard to two independent sales which was not competent. Furthermore, when the plaintiff appeared before the Court as a witness he stated that he has challenged the sale of Muhammad Saleem only. This shows that he has not challenged the sale by Razia Bibi in favour of the vendees. Admittedly the sales by Muhammad Saleem and Razia Bibi were from a joint khata and the pre-emptor has pressed his right on the basis of contiguity. In this way the vendees became co-sharers in the khata as the sale by Razia Bibi through mutation No.920 has not been challenged, therefore, the plaintiff/ petitioner was also having no right of pre emption. The findings of the learned trial Court on Issue No.9 against the vendees, confirmed by the 1st appellate Court, are not sustainable, therefore, the same can be set aside without filifig any appeal or cross objections as no part of the decree has been passed against the respondents/vendees. In this view of the matter, the findings recorded with regard to right of pre-emption in favour of the plaintiff are set aside. Resultantly, the revision petition stands dismissed with the above reversal of findings on Issue No.9, and the same are also recorded against the plaintiff/petitioner. No order as to costs. ZC/B-22/L Revision dismissed.