2009 PLP 593 (YLR)

MUHAMMAD ALAM KHAN, J.

Through the instant civil revision petition, the petitioner Sona Khan has challenged the concurrent judgments and decrees dated 22-12-2006 and 20-6-2007 passed by the learned Civil Judge-III and learned Additional District Judge-VI, D.I. Khan respectively, whereby his suit was dismissed.

2. According to the averments made in the plaint, one Mubarak Khan was owner of the suit property measuring 29, Kanals 19 Marlas who had sold it to defendant Raees Khan in lieu of sale consideration of Rs.20,000 through registered Deed No.2300 dated 31-12-1997. However, an inflated amount of Rs.60,000 was written therein. The petitioner claiming to be co-sharer and contiguous owner therein pre-empted the transaction through a pre-emption suit against the defendants who when summoned contested the same by filing written statement. Amanaullah Khan, respondent No.2, now dead and represented by his legal representatives, also filed a suit for pre-emption of the same transaction as rival pre-emptor. Both the suits were consolidated and the following issues were framed:-- (1) Whether the plaintiff and rival pre-emptor have got a cause of action? (2) Whether the suit of plaintiff and rival pre-emptor is within time? (3) Whether the plaintiff and rival pre-emptor have fulfilled the requirements of Talabs according to law. (4) Whether the plaintiff and rival pre-emptor are estopped to sue due to their own conduct? (5) Whether the suit of the plaintiff and rival pre-emptor is bad on account of misjoiner of necessary parties? (6) Whether suit of the plaintiff and rival pre-emptor is maintainable in its present form? (7) Whether an amount of Rs.3,60,000 has actually been fixed and paid as sale consideration of the suit-land? (8) Whether the plaintiff or rival pre-emptor have superior right of pre-emption, if so, they are entitled to what extent of the share in the suit property? (9) What is the effect of sale-deed Wasiqa No. 127 registered on 8-2-1998 and sale-deed Wasiqa No.128-dated 21-1-1998 on the suit of the plaintiff and the rival pre-emptor? (10) What is the market value of the suit property? (11) Whether the plaintiff and rival pre-emptor are entitled to decree for possession through right of pre-emption as prayed for, if so, what extent? (12) Relief.

3. The learned trial Court after affording opportunity to the parties to lead pro and contra evidence and hearing the learned counsel for the parties and considering the data available on record dismissed both the suits by a consolidated judgment in Suit No. 476/1 of 2003 decided on 22-12-2006. Sona Khan petitioner filed an appeal before the lower appellate Court and the same was dismissed vide Appeal No.6 of 2007, decided on 20-6-2007 and hence the present revision petition by Sona Khan petitioner challenging the concurrent finding of the two Courts.

4. Learned counsel for the petitioner submitted that the learned trial Court was over-swayed by the fact that the vendee, Raees Khan, had transferred by way of exchange the suit-land to one Waris Khan, son of Haji Mosam Khan, vide registered Deed bearing No.100 dated 21-1-1998 on the basis of which Mutation No.165 was attested on 30-7-1998. It was further argued that the vendee-defendant could not transfer the suit-land within 120 days, which is the period of limitation for filing of pre-emption suit and the vendee having transferring the suit-land to Waris Khan, the same will not adversely affect right of the petitioner as pre-emptor. Elaborating his arguments, the learned counsel submitted that the plaintiff/petitioner issued Talb-e-Isshad notice on 24-1-1998, whereafter the transfer by vendee-defendant in favour of Waris Khan, second vendee, will be bit by the doctrine of lis pendens. It was also submitted that in spite of the fact that the second transaction was disclosed by Sher Jan, Patwari Halqa, in his statement dated 22-12-2005 appearing as P.W.l, there was no need to impugn the second sale and plaintiff/pre-emptor was not obliged to have arrayed Waris Khan transferee in the suit and thus prayed for reversal of the concurrent findings of the Courts below. Reliance in this respect was placed on the judgment handed down by the apex Court in the case of Abdul Qayyum through legal heirs v. Mushki Alam and another, reported in 2001 "SCMR page 798.

5. I have gone through the available record and considered the arguments advanced at the bar.

6. Perusal of the record reveals that notice of Talb-e-Isshad was issued by the petitioner/pre-emptor in this case on 24-1-1998 and inspite of second transaction in favour of Waris Khan, he was neither arrayed as party nor the second transaction was pre-empted. The knowledge of the second transaction was admitted by the petitioner as well as the rival pre-emptor Amanullah in the Court statements while appearing as P.W.3-A and D.W.6 Sanaullah who appeared as special attorney of the legal heirs of Amanullah deceased, rival pre-emptor. The' suit-land had been transferred to Waris Khan by way of exchange by the vendee-defendant through registered Deed No.100 dated 21-1-1998 prior to the issuance of notice Talb-e-Isshad which was issued on 24-1-1998. Thus the second transaction will not be hit by the doctrine of lis pendens as the transfer was neither effected during the pendency of the suit nor after the issuance of Talb-e-Isshad and the same will not be covered by the said Doctrine as held in the case of Abdul Yameen Khan v. Ashrat Ali Khan and others, reported in 2004 SCMR Page 1270. The case law cited by the learned counsel for the petitioner on facts, is distinguishable.

7. The plaintiff/pre-emptor and the rival pre-emptor Amanullah inspite of the knowledge of the second transaction of exchange vide registered Deed No.100 dated 21-1-1998 in favour of Waris Khan has neither tried to array him as party to the lis nor opted to pre-empt the said second transaction. In this respect, the findings of the learned trail Court on issue No.9 duly maintained by the learned appellate Court needs no inter ference.

8. The findings of the two Courts below are perfectly sound, well-reasoned and are in accordance with the established principles of appreciation of evidence and, therefore, maintained.

9. In view of the facts and circumstances of the facts narrated above, there is no force in the instant revision petition, which is dismissed in limine. H.B.T./26/P Revision dismissed.