2007 PLP 719 (SCMR)

CH. IJAZ AHMED, J.

Petitioners have sought leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 5-4-2004 wherein the revision petition filed by respondents was accepted and reversed the judgment of the First Appellate Court. Necessary frets out of which the present petition arises are that Bakhat Bhari was the original owner of land in question measuring 24 Kanals, 2 Marlas. The suit-land is part of Khewat Nos. 1106 to 1112, 468 and share of Shamilat Dell. The original owner had sold the land in question to the petitioners through Mutation No.965, dated 13-3-1996 for consideration of Rs.12,

000. Respondent/plaintiff filed a suit for possession through pre-emption in the Court of Civil Judge First Class Pindighap, District Attock. The contents of the plaint reveal that respondent/plaintiff had visited his native village on 25-3-1996 and acquired knowledge of the said sale, so he at once pronounced his intention to bring suit for pre-emption and thereafter he had despatched notices through registered post A.D. as required by law of pre-eruption. The contents of the plaint further reveal that plaintif7/respcnident has claimed his superior rights on the basis of Shafi-e-Shareek and having adjacent land. Petitioners/defendants filed written statement controverting allegations levelled in the plaint. Out or the pleadings of the parties the trial Court framed six issues. The learned trial Court had completed the legal formalities such as recording of evidence or the parties, The Civil Judge First Class/Trial Court decreed the suit vide its judgment and decree, dated 4-1-2000. Petitioners being aggrieved filed appeal in the Court of Additional District Judge, Attock who accepted the same and set aside the judgment and decree of the trial Court vide its judgment, dated 4-1-2001. Respondent being aggrieved filed Civil Revision No.218-D of 2001 in the Lahore High Court, Rawalpindi Bench which was accepted as mentioned above vide impugned judgment. Hence the present petition.

2. Learned counsel of the petitioner submits that First Appellate Court had decided the case in favour of the petitioner with cogent reasons in terms or the mandatory provisions of Pre-emption Act and law laid down by the superior Courts. He further urges that petitioners/defendants have become co-sharer in suit Khewat and Khasra Nos. and as such there was no superior right of pre-emption in favour of the respondent/plaintiff as the petitioners have become co-sharers in the Khewat in question in view of mutation sanctioned in favour of the petitioners. He further submits that respondent/plaintiff had not produced the informant Suba Khan Lumbardar and also did not mention his name in the plaint and also failed to prove notice issued by him to the petitioners/defendants. The, findings of the learned High Court with regard to Talb are not in consonance with the law laid down by this Court. He sums up his argument that wither pre-emptor has proved Talb-e-Muwathibat nor Talb-e-Ishhad in terms of the provisions of Pre-emption Act. In support of his contention he has relied upon the following judgments: (1) PLD 1998 SC 121, (2) 1991 SCMR 2001, (3) 2001 SCMR 1651.

3. We have given our anxious consideration to the contentions raised by the learned counsel of the petitioners and perused the record. The learned High Court had thoroughly re-examined the evidence on record and thereafter reversed the finding of First Appellate Court with cogent reasons as evident from para.6 of the impugned judgment. The learned High Court had given finding of fact after reappraisal of evidence that respondent/plaintiff had performed the Talbs in accordance with law.

4. It is pertinent to mention here that First Appellate Court had non-suited the respondent for non-mentioning of time, date and place in the plaint. This Court had given various divergent views of the said proposition of law. This Court has laid down principle while interpreting provisions of pre-emption law that date, time and place is not necessary to mention in the contents of plaint. See Haji Noor Muhammad's case 2000 SCMR 329, Azmatullah's case 2005 SCMR 1201, Abdul Qayyum's case 2001 SCMR 798, Ameer Jan's case PLD 1997 SC 883, Allah Bakhsh's case 2004 SCMR 1580, Muhammad Ilyas's case 1999 SCMR 958, Altaf Hussain's case 2000 SCMR 314, Sar Anjam's case 1999 SCMR 2166 and Hayat Muhammad's case 2006 SCMR 1410.

5. This Court has also laid down a principle in the following judgments that date, time and place must be mentioned in the contents of plaint. Sec Haji Lal Shah's case 2004 SCMR 409, Atiq-ur-Rehman's case PLD 2006 SC 309, Muhammad Saleem's case PLD 2003 SC 315, Muhammad Siddique's case 2005 SCMR 1231, .Gul Hussain Shah's case 1996 SCMR 294, Shall Muhammad's case 1996 SCMR 346, Akbar Ali 'Khan's case 2005 SCMR 431 and Khani Zaman's case PLD 1998 SC 121.

6. The learned High Court had decided the case, as mentioned above, after judicial application of mind by scrutinizing the each and every piece of evidence on record and thereafter reversed the finding of the First Appellate Court. This fact brings the case in the area that the judgments cited by the learned counsel for the petitioners are distinguished on facts and law. Even otherwise it is a settled law that every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. The relevant observation is as follows: "Case is only an authority for what it actually decides." In the case in hand necessary facts are mentioned in the plaint as is evident from the contents of paras.2 and 4 of plaint and finding of para.9 of the impugned judgment. The learned High Court had taken into consideration Mutation No.965 as is evident from para.7 of the impugned judgment which is to the following effect:-- "As to the superior right of pre-emption the petitioner is recorded as co-sharer in the Record of Rights for the years 1993-94. He pre-empted the sale transaction, took place trough Mutation No.965, attested on 13-3-1996. The respondents also became co-sharers in the suit-land through Mutation Exh.D.1. Both the petitioner as well as the respondents have equal right in the suit-land, therefore, the suit of the petitioner is decreed to the extent of 1/2 share. In view of the above discussion, this civil revision is allowed partly, the impugned judgment of the learned Appellate Court 'is set aside. The suit of the petitioner is decreed to the extent of 1/2 share against a consideration of Rs.6,000 to be paid within 2 months from today, failing which his suit shall be deemed to have been dismissed."

9. Mere reading of the aforesaid paragraph clearly shows that justice has been done between the parties by the learned High Court to decree the suit to the extent of 50% of the land in question. It is a settled law that constitutional jurisdiction is discretionary in character. As mentioned above, justice has been clone by the learned High Court between the parties, therefore, we are not inclined to exercise our constitutional jurisdiction in favour of the petitioners as law laid down by this Court in Nawabzada Raunak Ali's case PLD 1973 SC 236.

10. For what has been discussed above, we do not find any infirmity or illegality in the impugned judgment on merits in view of finding of the learned High Court as evident from paragraphs 6 to 8 of the impugned judgment. The petition being devoid of merit is dismissed. Leave refused.

11. In view of the divergent view by different Honourable benches of this Court consisting of five and three Honourable Judges, the case be placed before the Honourable Chief Justice of Pakistan for consideration to constitute a larger Bench in any other appropriate case to resolve the controversy if the Honourable Chief Justice deems it fit. S.A.K./S-1/SC Leave refused.