2020 PLP 1090 (CLC)

MUHAMMAD EJAZ SWATI, J.

The petitioner (plaintiff) filed a suit for pre-emption against the respondents with the averments that respondent No.2 was owner of the property bearing Khatooni No.23, Khasras Nos.674, 675, 676, measuring 12 pole, 14 rod, which he sold to the respondent No.1 Kamalan. The petitioner having preferential right came to know about the sale through Shah Baran on 16.10.2016 when he was sitting in his drawing room () in presence of Saleh Muhammad. He immediately performed Talab-e-Moasibat and subsequently performed other Talabs.

2. The respondents contested the suit by way of filing written statement and denied the sale between them and it was contended that the property was given by the respondent No.2 to respondent No.1 on Ajara, for a period of seven years and no sale whatsoever in nature effected between the parties.

3. Learned Majlis-e-Shoora, Barkhan, vide judgment / decree dated 27.10.2017 dismissed the suit, which has been assailed by the appellant through the instant appeal.

4. This appeal was filed on 27.11.2017, but despite availing several opportunities counsel for the appellant remained absent with proceedings and today it is second time since morning this case has been called, but again none appeared on behalf of the appellant, therefore, arguments of the other side has been heard.

5. The appeal has been filed on the ground that the cause of action with regard to sale has not been denied by the respondents in the written statement and possession of the property is admittedly with the respondent No.1; that the findings rendered by the trial Court reflect misreading and non-reading of evidence. The learned counsel for the respondents contended that with regard to issue No.2, the trial Court while discussing the evidence produced by the plaintiffs concluded that none of the witnesses of the plaintiffs could sufficiently prove the sale between respondents Nos.1 and 2; that the sale is condition precedent for exercise of pre-emption right and in absence thereof no suit could be proceeded. He further contended that the propriety right is still with respondent No.2 and the respondent No.1 is not enjoying the title of the property.

6. Heard the learned counsel for the respondents and considered the grounds taken in the appeal. The appellant in his suit alleged that on 16th October 2016 he came to know about sale of the property in question. The trial Court dismissed the suit on the ground that the appellant has failed to prove the sale of the property by the respondent No.2 in favour of respondent No.1. The sale of the property has been defined in section 5 of the Transfer of Property Act, 1882 (the Act), which is reproduced herein below: "5. "Transfer of property" defined.

In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons ; and "to transfer property" is to perform such act."

7. The expression "sale" means transfer of ownership of immoveable property in exchange or for a price paid or promised or part paid or part promised. Completion of sale deed or mutation thereof is essential or incidents of sale, if when completed, sale becomes absolute transfer of right in property sold and no rights are left in transferor. The essential elements of sale are: (i) The parties; (ii) The subject matter; (iii) The transfer or conveyance; and (iv) The price and consideration paid or promised or part paid or part promised. It is not necessary that sale must be in writing, oral sale, if proved through direct evidence is also competent for the purpose of seeking pre-emption right. Section 232 of Principles of Muhammadan Law further provides that sale alone gives rise to pre-emption. The right of pre-emption arises only out of a valid, complete and bona fide sale, it does not arise out of gift (Hibba), Sadqa, Waqf, inheritance, bequest, lease or mortgaged unless foreclosed. In the instant case, the respondent No.1 denied the purchase of the property in question from respondent No.2, and in this respect Issue No.2 was framed "whether right of pre-emption arises to the appellant? In this respect, the appellant in his statement contended that he received information about the sale of the property on 16th October 2016 through Shah Baran in presence of Saleh Muhammad. The statement of PW Shah Baran reveals that he himself had no direct knowledge about the sale of the property in question and in reply to question No.6, he stated as under: While PW Saleh Muhammad answering question No.7 stated as under: 7(sic) From the above, it reveals that above two witnesses produced by the appellant had no direct knowledge about the sale of the property in question, nor any transaction between respondents Nos.1 and 2 in writing or verbally had been sufficiently brought on record. The statement of appellant is also in line of the above two PWs, as he also came to know about the alleged sale from PW Shah Baran, who had no direct knowledge in this respect. It appears that the oral evidence produced by the appellant including his own statement with regard to sale of the property in question are based on hearsay evidence. Article 71 of the Qanun-e-Shahadat Order, 1984 provides that oral evidence must in all cases whatever, be direct. As the law insists for a direct evidence of the primary source and it would be inadmissible, if comes from an indirect source. The appellant, though asserted about the sale of the property in question, but failed to produce any direct oral or primary evidence as required under Articles 71 and 73 of the Order, 1984, thus has failed to prove the sale of the property in question as the sale alone gives rise to pre-emption, therefore, the findings rendered by the trial Court are based on proper appreciation of evidence, which reflect no misreading and non-reading of evidence, thus warrant no interference by this Court. In view of the above, Civil Miscellaneous Appeal No.33 of 2017 is hereby dismissed. Parties are left to bear their own cost. Decree sheet be drawn, accordingly. ZC/165/Bal. Appeal dismissed.