2015 PLP 76 (YLR)

MRS. IRSHAD QAISER, J.

Petitioner/plaintiff Haji Nazir Muhammad has filed the present 'revision petition against the judgment and decree dated 12-7-2010 passed by learned District Judge Mansehra whereby the appeal filed by the petitioner against judgment and decree dated 20-4-2010 passed by Civil Judge-VI Mansehra was dismissed and also by partially accepting the appeal filed by respondents Nos.1 to 6 reversed the finding upon issue No.3 passed by trial Court.

2. Precisely stated the facts of the case as enumerated from the record as well as in the judgment impugned are that the respondents Nos. 1 to 6 namely Muhammad Riaz, Lal Akbar, Shahbaz Khan, Muhammad Aslam, Sufi Abdul Khanan and Aurangzeb are vendees of the land measuring 18 marlas, the detail of which is given in the heading of plaint which they purchased through Mutation No.56236 attested on 15-4-2004 for a sale considera-tion of Rs.500,

000. But in order to defeat the right of pre-emption of plaintiff an exaggerated amount of Rs.1000000 was mentioned in the impugned mutation.

3. Plaintiff instituted suit to pre-empt the sale deed on the ground of superior right of pre-emption as he is khata-Sharik as well as Shafi Khaleet and Shafi-jar. In the plaint it is contended that the impugned sale was kept secret by respondents (defendants) and no notice in this respect was issued to him. That on 27-4-2004 at 5-00 p.m. the plaintiff was present at Pakhwal Chowk Mansehra when he got the knowledge of the sale transaction on the information of Muhammad Javed son of Fareed Khan. That respondents/defendants have purchased the suit property from Abdul Sattar and Muhammad Saleem sons of Haji Gul Hussain. On hearing the information, the petitioner there and then declared his intention to preempt the suit property in the presence of said witness and thus performed talb-i-Muwathibat. On 28-4-2004 he sent the notice of talb-i-Ishhad in the presence of Muhammad Javed and Malik Ishtiaq through registered AD to each of the defendants/respondents. But in spite of fulfilling all legal formalities they refused to accept his right of pre-emption and this gave the petitioner a cause of action to file the suit.

4. The defendants were summoned. They appeared and contested the suit by submitting their joint written statement. The divergent pleadings of the parties gave rise to 11 issues. Both the parties were allowed to produce pro and contra evidence in order to substantiate their claim. After recording of evidence and hearing of arguments the learned trial Court vide judgment and order dated 31-10-2008 passed decree in favour of petitioner. But on appeal, the case was remanded back to the trial Court for decision afresh with the direction to examine patwari Halqa to make clarification about contiguity of plaintiff/pre-emptor with all khasra numbers and whether the khasra numbers under the suit forming with compact block or not. It was further directed to consider the plea of Lal Akbar about his co-sharership in Khasra No.10939.

5. After remand of the case patwari halqa was examined as P.W.1. Local commission also submitted his report and was examined as CW.1 while the statement of defendant No.6 was recorded as ADW.1. After hearing the arguments the trial Court vides judgment and decree dated 20-4-2010 while deciding issue No.3, i.e. performance of talbs, in favour of petitioner dismissed the suit of the plaintiff on the ground that he has no superior right of pre-emption against the defendants and decided issue No.9 against the petitioners and in favour of respondents/defendants. Feeling aggrieved both the combatants not contended with the conclusion drawn by the learned trial Court have preferred appeals. Petitioner has challenged issue No.9 and stated that he has superior right of pre-emption and contended that suit Khasra numbers from a compact block and the contiguity of appellant is prove with one Khasra number, therefore, he is legally has contiguity with all khasra numbers. He pleaded before the appellate Court that if at all appellant/petitioner has got no contiguity with all khasra numbers then he should have been granted decree in respect of these khasra numbers with which he had got contiguity. That the right of appellant and each defendant should have been determined separately. The appellate Court while deciding issue No. 9 has observed that the contiguity of appellant is proved with four Kashra numbers. The detail in this respect is given in Para No.18 of the impugned judgment. However, appellate Court decided issue No.3 against the petitioner. Thus both the appeals were partially allowed. However, the finding of trial Court with regard to dismissal of suit was upheld but on the grounds that petitioner failed to prove the Talbs as required under the law. Hence the present revision petition.

6. In the present revision petition the learned counsel for the petitioner/plaintiff challenged the judgment and finding of appellate Court in respect of issue No.3. It is contended that the appellate Court wrongly and with material irregularity reversed the finding on issue No.3 and exercised the jurisdiction not vested in it by law, as while remanding the case, the evidence on talbs were before the appellate Court and had there been any deficiency in the evidence on talbs, no question of remand would have arisen in the same. It is further contended that though the appellate Court reversed the finding on issue No.9 passed by lower Court but wrongly mixed up the name of defendant/respondent No.4 i.e. Muhammad Aslam son of Ghulam Rasool with Muhammad Aslam son of Shah Zaman and wrongly drew the conclusion. Respondents have not filed any petition to challenge issue No.9.

7. I have heard learned counsel for parties and perused the available record with their assistance.

8. The first point I want to discuss is regarding issue No.3 i.e. the first talbs. Now it is required to see whether in the plaint the detail of date, place and time of sale and talbs and also names of the witnesses in whose presence the talbs were made are mentioned. Whether during trial these witnesses have been able to prove the talbs and their statements are in consonance/ consistent with the contents of the pleading. Essentially these cases of pre-emption are arising out of statutory law of pre-emption Act of 1987. Section 13 of the Act speaks in respect of the performance of the demand of the pre-emption including talb-e-Khusumat. It is well understood in the ordinary sense that the talb-e-Muwathibat connotes to a jumping demand. It means immediate demand by the pre-emptor. The definition and meaning of the word "immediate" has been considered by apex Court in several cases which would mean immediate demand made by the pre-emptor in the same meeting and sitting without any loss of time as soon as he received the information about the sale.

9. In the present case the plain reading of the plaint reveals that the petitioner/plaintiff in Paragraph No.2 has specifically mentioned the date, time and place of performance of talb-i-Muwathibat along with the name of the informer. In Para No.2 it is mentioned:-- In this respect the evidence of the plaintiff mainly consists of his own statement as P.W.6 and the statement of Muhammad Javed informer as P.W.5. Both PWs have specifically mentioned date, time and place and the detail of property. They were cross-examined at length but nothing material was extracted from their mouth which could destroy their case. Defence was not able to shatter their statements in respect of date, time and place of information. Learned counsel for the respondent has pointed out some contradiction in the statements of these P.Ws. but these cannot be termed as material contradiction. However, the contradictions pointed out are very minute in nature and it can be occurred when a person is examined after sufficient long time of the occurrence and these are not sufficient to discard their entire testimony. Both these P.Ws. were examined after the. lapse of more than 4 years and it is not possible for human mind to remember the minute detail of conversation after four years. Both the P.Ws. are unanimous regarding the factum of information and the material detail. Reference in this respect is made to PLD 2003 Peshawar 179, wherein it is held:-- "We have noticed in many cases that the learned trial Judges and learned Judges of the appeal Courts in making the appraisal of oral evidence on the question of Talbs put it to a very strict scrutiny by searching for faults, minor omissions and contradictions and in this way cause grave prejudice to the pre-emptors. Such approach by learned Courts below run counter to the sound judicial principles because the rate and standards for appraisal of evidence in civil cases are certainly different from those employed in criminal cases as for both the law has laid down different standards of proof. Viewed in the above perspectives, the approach and representation shown regularly be learned Judges of Courts below in declaring and branding the witnesses of Talbs as false or untruthful because of minor contradictions and omissions in their evidence is not a desirable practice and is disapproved. The Honourable' Supreme Court in the case of Abdul Qayyum v. Mushk-e-Alam and another 2001 SCMR 798 has settled the principle of law on this point for all time to come which shall be complied with strictly."

10. Admittedly, both before and after the remand of the case trial Courts vide their findings on issue No.3 on 31-10-2008 as well as on 20-4-2010 have unanimously held that the plaintiff has fulfilled the requirement of talbs and issue No.3 was decided in favour of plaintiff. The appellate Court while remanding the case back to the trial Court vide order dated 2-4-2009 has not pointed out the non-performance of talbs. Case was remanded to the trial Court to determine the superior rights of the parties. Had there been any deficiency in the evidence of talbs, then the case had to be dismissed there and then and the question of remand in respect of superior right of the parties would not have arisen. After the remand though no directions were given to prove talbs but defendant No.6 Aurangzeb while examined as ADW.1 has produced the attested copy of the statement of Muhammad Javed (informer) which was recorded in another case as EXDW1/2 Neither any opportunity was given to the petitioner to cross examine him in this respect nor it was confronted to Javed when he was examined as P.W.5. Moreover, this statement of Muhammad Javed relates to other case. It is settled principle of law that recording of evidence recorded in another case as evidence in case in hand is not permissible by virtue of Article 57 of Qanun-e-Shahadat Order, 1984. Reference is made to PLD 1966 SC 708, 2002 CLC Lahore 1361 and 2004 MLD Karachi 1259. But the appellate Court while ignoring the law and all the material facts has jumped at the conclusion that the plaintiff has failed to prove the talb in accordance with law and that appellant/petitioner has made no declaration about the suit transaction. From the perusal of record it is proved that on hearing the disputed sale transaction through Mutation No.56236 dated 15-4-2004 in favour of respondents Nos.1 to 6 by Abdul Sattar and Muhammad Salim sons of Haji Gul Hussain from Javed, petitioner immediately declared his intention in the same meeting to preempt the sale. Both the trial Courts before and after remand discuss the Talb-i-Muwathibat as well as Talb-i-Ishhad in detail in accordance with law. Therefore, while concurring with the views of the trial Court I hold that the finding of appellate Court is based on non-reading and misreading of the evidence and is illegal. Thus the finding of appellate Court on issue No.3 is set aside and maintained the finding of trial Court dated 31-10-2008 and 20-4-2010.

11. Now coming to the crucial question of superior right of pre-emption of the petitioner. The appellate Court while partially allowed the Appeal No.13/13 of the petitioner to the extent of right of petitioner against the respondents has held; "petitioner and respondents Nos.1, 3 to 6 have got equal rights of pre-emption in respect of all khasra numbers while respondents Nos.2 and 4 are co-sharer in Khasra Nos.10940 and 10951 therefore petitioner has got no right against respondents Nos.2 and 4 in respect of khasra Nos.10940 and 10952. Similarly respondents Nos.2 and 4 are also contiguous owner with all khasra number." These findings have not been challenged by respondent as no revision petition/cross objection has been filed by respondents. The petitioner also did not raise any objection in respect of the superior right of the parties except to the extent that respondent No.4 Muhammad Aslam son of Ghulam Rasool is not co-sharer in khasra Nos.10940 and 10952 as Muhammad Aslam mentioned in the above khasra number is Muhammad Aslam son of Shah Zaman. Learned counsel for respondent admitted this fact that respondent No.4 Muhammad Aslam is not co-sharer with Lal Akbar.

12. The disputed Mutation was attested in respect of five Khasra Nos.10937/ 3931,10941/3933, 10940/3933, 10952/3934 and 10957/3935 consisting of 18 Marlas. Khasra No.10937 is consisting of 1 Marla, 10941 is of 6 Marlas, Khasra 10940 is of 6 Marlas, Khasra 10952 is of 4 Marlas and Khasra 10957 is of 1 Marla. From the revenue record, statement of Patwari Halqa, report commission as well as the finding of the appellate court, it is established that petitioner has got no contiguity with khasra No.10939. He has got contiguity with rest of Khasra numbers. Except Khasra No.10937 rest is situated in compact block. Thus the contiguity of petitioner is proved with four khasra number. Lal Akbar is co-sharer in Khasra Nos.10940 and 10952. Thus the rest of the area in these khasra numbers 10940 and 10952 purchased by rest of respondents Nos.1, 3 to 6 and in other khasra number purchased by all respondents have to be distributed amongst parties according to law.

13. Now petitioner is entitled to get his share in four Khasra Nos.10941, 10940, 10952 and 10957. Since Lal Akbar is owner in khasra Nos.10940 and 10952, therefore, by excluding his share in above khasra numbers, the rest are to be distributed. There are six vendees. Khasra No.10940 is of 6 Marlas and 10952 is of 4 Marlas. Total 10 Marlas. If the share of Lal Akbar to the extent of 15 sarsai (1 Marla 6 Sarsai) out of 10 Marlas (90 Sarsai) are excluded then 75 Sarsai i.e. 8 Marlas 3 sarai are left which have to be distributed amongst 5 vendees and petitioner, and each will get 12 Sarsai 15 feet i.e. 1 Marla 3 Sarsai 15 feet, while the area of Khasra Nos.10941 and 10957 are consisting of six Marlas and 1 Marla total 7 Marlas which has to be distributed amongst all the 6 vendees and petitioner and, each will get 1 Marla. In this way pre-emptor is entitled to the decree of 2 Marlas, 3 Sarsai and 15 feet. The revision petition is partially allowed and decree is granted in favour of petitioner to the extent of 2 Marla 3 Sarsai and 15 feet out of 18 Marlas. If the petitioner has deposited all the sale consideration. He is entitled to receive the remaining amount. AG/396/P Revision partially allowed.