2006 PLP 1399 (CLC)

MIAN SAQIB NISAR, J.

The respondent has succeeded in his cause of pre-emption against the petitioner at both the forums below. Hence this revision petition.

2. Briefly the facts of the case, are that on 6-6-2002, the respondent brought a suit for pre-emption against the petitioner, and in paragraph 2 of the plaint, it is categorically stated that he learnt about the sale of the land measuring 6 Kanals, effected through mutation dated 24-4-2002, from Sher Zaman Khan on 30-5-2002, at his house at about 7/8-00 a.m., when Riaz Khan and his son Akram Khan were also present; the notice of Talb-i-Ishhad was also given the same day. The suit was contested by the petitioner, issues were framed, parties were put to trial and in order to prove the issue of Talbs i.e. issue No.2, the respondent examined himself as P.W. whereas his son Akram Khan appeared as P.W.2 and Riaz Khan as P.W.3.

3. Heard. The plaintiff respondent in his statement has not given any date, rather stated that it was 2 years, 1-1/2 months ago that he learnt about the sale and made Talb-i-Muwathibat followed by a notice of Talb-i-Ishhad, but in the cross-examination when he was put. to certain questions, he has not been able to give the exact date, month or even the year of the sale. P.W.2/Akram Khan, has not stated a word about the making of Talb-i-Muwathibat by his father, but has only asserted about Talb-i-Ishhad. P.W.3/Riaz Khan, has proved on the record to be a close relative of the plaintiff; his deposition is not worthy of the consideration, because he has not mentioned about the exact date of the Talbs, rather there is a discrepancy of the timing as well, because in his deposition it is 9 O'Clock, whereas in the plaint it is stated to be 7/8-00 a.m. Above all, Sher Zaman Khan, who is the key witness of the case, and he according to the plaintiff respondent has apprised him of the sale, has not been examined for any reason; according to.the law laid down in the judgment reported as Muhammad Yousaf v. Muhammad Rafique, and others PLD 2006 Lah. 39 and Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235, it is fatal to the case of the pre-emptor. Even when questioned today, no explanation in this behalf has been given by the counsel for the respondent.

4. Even otherwise, the story concocted by the plaintiff, on the face of it seems to be false, because his son Akram Khan/P.W.2, has also purchased the property from the same vendor on the same day and the Mutation of his sale bearing No.484, was entered by the Patwari on 27-2-2002 along with the entry of the sale about the petitioner, and both these were sanctioned on 24-4-2002 by the Tehsildar; at the time of sanction the witnesses of both the mutations are the same, therefore, it can be safely concluded on the rule of probability, that right from the beginning the plaintiff through his son was aware of the sale and the story of learning about it subsequently, is false. These aspects have not been considered by the Courts below, therefore, no sanctity to the concurrent finding, which is based upon misreading and non-reading of the record can be attached. Resultantly, this petition is allowed, the judgments and decrees of the Courts below are set aside and the suit of the respondent is dismissed. S.A.K./M-343/L Revision accepted.