2002 PLP 1173 (CLC)

Respondent's suit for pre‑emption was decreed by the learned Civil Judge on 20‑9‑1992; appeal filed by the petitioners failed on 20‑2‑1993.

2. Briefly stated the facts of the case are, that respondent filed a suit for pre‑emption on 16‑10‑1990, challenging the sale in favour of the petitioners, affected through Mutation No.705, dated 30‑8‑1990. It may be pertinent to. state here that in the plaint, no exact date, on which, the respondent attained the knowledge of the sale and made Talb‑i -Muwathibat is specified. However, it is mentioned that he learnt about the sale from Hakim Ali and Khizar Hayat and made Talb‑i‑Muwathibat and issued a notice of Talb‑i‑Ishhad to the petitioners on 1‑10‑1990. In this notice, however, it is categorically stated that it was about 8 days prior thereto. The making of Talbs was controverted by the petitioners; they also denied the superior right of pre‑emption, accordingly, learned Civil Judge, inter alia, framed the following issue:‑‑ "Whether the plaintiff has superior right o pre‑emption qua the vendees/defendants and has fulfilled the conditions of Talbs and pre‑emption decree can be passed in his favour. OPP" According to the learned counsel for the parties, only issue of Talbs is relevant for the purpose of this petition. Anyhow, after the trial, learned Civil Judge, found issue No.1, in favour of respondent and decreed the suit. Appeal filed by the petitioners also failed.

3. Learned counsel for the petitioners contends that the findings of the Courts below on the issue of Talbs are based upon misreading or non -reading of the evidence. It is stated that the respondent in his plaint, has not given any specific date, as to when he learnt about the sale and made Talb‑i‑Muwathibat, consequently, it was not established by the respondent whether notice of Talb‑‑i‑Ishhad, was issued within fifteen days of the date of such knowledge. Learned counsel further argued that certain inherent discrepancies /contradictions in the statements of the P.Ws. to prove the Talb‑i‑Muwathibat were pointed out to the learned trial Court, but the learned trial Court, without adverting to those contradictions, held that "In my view, this contradiction in the statement of P.W.1 and P.W.2, is not material". Likewise, the learned Appellate Court in. its judgment has also stated that "the contradictions and discrepancies pointed out in their statements are of minor nature and in no way discredit their testimony, regarding the above aspect. Likewise, the record speaks that plaintiff/pre‑‑emptor fulfilled the requirements of Talbs in accordance with the Islamic Law to maintain the right of pre‑emption". It is stated that such contradictions were so apparent and inherent and, therefore, reading those in the proper context, would undoubtedly establish that a story has been concocted by the respondent, about the knowledge of the sale and making of Talb‑i -Muwathibat.

4. Conversely, the learned counsel for the respondent, has argued that there is concurrent finding of fact recorded by the two Courts below, about making of Talbs, which is based upon proper appraisal and reading of evidence and such concurrent finding cannot be upset in the revisional jurisdiction. It is also stated that it is insignificant omission if the exact date of the knowledge of the sale has not been mentioned in the plaint, but has otherwise been proved through evidence. In support of his contention, learned counsel has placed reliance on Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Altaf Hussain v. Abdul Hameed and others 2000 SCMR 314.

5. I have heard learned counsel for the parties. From the perusal of the paragraph No.2 of the plaint, it is conspicuous that respondent did not mention the date of the knowledge of sale and making of Talb‑i -Muwathibat. However, it is stated that the notice of Talb‑i‑Ishhad was issued to the petitioners on 1‑10‑1991, which document is on the record, as Exh. P.l. In this notice, it is clearly mentioned that respondent attained the knowledge eight days prior to the issuance of the notice, which means that it is on 23‑9‑1990, when the petitioner learnt about the sale. But P. W .1, Hakim Khan, in his examination‑in‑chief, deposed that the sale was made about eight and a half months ago and he and P. W. 2 one month thereafter, learnt about the sale from. Abdul Rehman, the vendee at the house of the latter and then went to the respondent and apprised him of the same. P.W.2, Khizar Hayat, stated that P.W.1 and he learnt about the sale eight and a half months ago and apprised the respondent of the said fact. The statements of these witnesses were recorded on 7‑5‑1991. This is a very material contradiction in the statements of the two witnesses and thus the exact date of knowledge and Talb‑i‑Muwathibat is not definitely proved. There is another discrepancy in the statement of P.W.2, compared with P.W.1, that according to his cross‑examination, he alongwith P. W.1, were going to the city, when Abdul Rehman met them in the way and told them about the sale, whereas, as earlier pointed out, P. W.1, clearly deposed that Abdul Rehman at his house had told them that the sale had taken place. Above all, respondent while appearing as P.W.2, in the cross‑examination has admitted that 4/5 days after the mutation, he was told by Hakim Khan and Khizar Hayat, about the sale. Admittedly, the sale has taken place through mutation, dated 30‑8‑1990 and if respondent had learnt about the sale as deposed by him, it would be on 5‑9‑1990, therefore, notice of Talb‑i‑Ishhad issued to petitioners on 1‑10‑1990, is undoubtedly beyond the period of two weeks, prescribed in the provisions of section 13(3) of the Punjab Pre‑emption Act, 1991. Even otherwise, according the statement of P.W.1 and P.W.2, who have stated that the sale took place about eight and a half months, prior to the date, on which their statements were‑ recorded, it comes to around 22‑9‑1990, which is correct because in the case, sale admittedly took place through mutation, dated 30‑8‑1990. All these contradictions are floating on the surface of the record are not only merely inconsequential, rather are vital for the purpose of proof of the issue of Talb‑i‑Muwathibat and also Talb‑i‑Ishhad, which primarily is on the shoulder of the respondent. These inherent and vital discrepancies have been overlooked by the two Courts below and, therefore, it is a clear case of the non- reading of the evidence on the record. It seems that respondent in order to avoid the consequence of not having made Talbs in accordance with law, has concocted a story, about learning of the sale on unspecified date, because 'no date was mentioned in the plaint, but could not prove the exact date, through evidence, so as to establish that notice of Talb‑i- Ishhad was issued within two weeks of the date of making the first TAW i.e. Talb‑i‑Muwathibat.

6. The argument of learned counsel that concurrent finding of fact recorded by the two Courts below, cannot be interfered in the revisional jurisdiction may be true if the Courts below have properly considered and read the relevant evidence, but where such findings are based upon ignoring, overlooking or misreading the vital piece of evidence, which has serious reflection upon the findings, even if there are concurrent finding; such findings are not sacrosanct and can always be interfered in revisional jurisdiction. In the light of above, I find that the Courts below have failed to consider the entire evidence on the record; the discrepancies pointed out in the statements of the P. Ws. clearly establish beyond doubt that respondent had knowledge of the sale right from the beginning, but with an object to overcome the requirement of making of proper Talbs had concocted the above story. In view of what has been discussed above, this petition is allowed; the judgments and decrees of the Courts below are set aside, resultantly the suit of the respondent for pre‑emption is dismissed with costs throughout. Q.M.H./M.A.K./A‑357/L Revision allowed.