2007 PLP 12 (CLC)

SYED ASGHAR HAIDER, J.

This petition is directed against the judgment and decree dated 20-1-2006, passed by the learned Additional District Judge, Mianwali, reversing the findings of the Civil Judge, Mianwali, whereby the suit of the plaintiff/respondent was dismissed.

2. The respondent/plaintiff Noor Hussain Shah filed suit for pre-emption pertaining to land measuring 12 Kanal, 5 Marlas located in village Rokhari Pacca, Tehsil and District Mianwali, challenging the sale and Mutation No.1502, dated 24-11-1998, claiming superior right of pre-emption on the ground of Shafi Shareek, Shafi Khalit and Shafi Jar. According to the plaintiff he came to know of the disputed sale on 30-11-1998 at 4 p.m. in presence of witnesses, he made demand in the same Majlis and next day sent notice of Talb-e-Ishhad. Defendant/ petitioner contested the suit of the divergent pleadings of the parties issues were framed, evidence was led, and thereafter the suit of the plaintiff/respondent was dismissed; aggrieved thereof he filed an appeal before the District Judge, which was allowed by the Additional District Judge on 20-1-2006, reversing the judgment of the trial Court, the petitioner/defendant is aggrieved of the impugned judgment, hence this petition.

3. Learned counsel for the petitioner has contended with vehemence that the findings of the lower appellate Court qua Talb-e-Muwathibat are not in consonance with law and the evidence tendered by the parties, the dispute pertains to two transactions, there is gross misreading and non-reading of evidence and the impugned judgment is not tenable in law or facts especially Exh.P.1.. He has relied on Khani Zaman v. Shah Hussain and others PLD 1998 SC 121 and Din Muhammad and another v. Subedar Muhammad Zaman 2001 SCMR 1992. Contrarily the learned counsel for the respondent has vehemently defended the impugned judgment and submitted that it is in consonance with law, evidence produced by the parties and there is absolutely no illegality in the impugned judgment.

4. I have heard the learned counsel for the parties and also perused the record. The impugned judgment clearly reflects that P.Ws. Nos.1 to 3, who were star-witnesses of the plaintiff were almost unanimous qua the date, time and place in respect of Talb-e-Muwathibat, the facts narrated are similar and identical, they stood the test of cross-examination, thus, they were able to prove their view point, minor discrepancy cannot impact the preponderance of evidence produced in affirmative, both documentary as well as oral testimony of the witnesses fully supports the case of the plaintiff. The law cited by the learned counsel for the petitioner is distinguishable. The lower appellate Court has meticulously appraised the evidence and has given sound reasons for disagreeing with the judgment of the trial Court. The objections raised by the learned counsel qua Talb-e-Ishhad are not in accordance with record, Exh.P.1 is clear and is totally in consonance with the scheme of things as mandated by section 13 of the Punjab Pre-emption Act, no material non-reading and misreading of evidence has been pointed out, there is no jurisdictional error, likewise there is no material irregularity in the impugned judgment as it is based on correct appraisal of evidence, resultantly, this petition has no merits and is dismissed. F.B./G-59/L Petition dismissed.