2017 PLP 31 (CLCN)

SYED AFSAR SHAH, J.

This civil revision is directed against the judgment dated 22.04.2010 rendered by learned District Judge, Mansehra, whereby the appeal filed against the judgment/decree dated 08.03.2010 passed by learned Civil Judge-XII Mansehra was dismissed.

2. The facts leading to the filing of the instant revision petition, as spelt out from the record, are that on the basis of mutation No.5973 attested on 21.01.2004 land measuring 17 Kanals 19-1/2 marlas bearing khasra No.299 situated in the local limits of Mauza Battal, Mansehra was purchased by Rehmat Gul for an ostensible amount of Rs.8,00,000/-. The sale was pre-empted by the petitioner/pre -emptor claiming his superior right of pre-emption on all the three grounds allowed by law and giving sale consideration as sum of Rs.1,26,000/- or what ever amount is fixed by the Court.

3. When put on notice by the learned lower Court, the respondent/vendee contested the suit, inter-alia, on the ground that since the pre-emptor/petitioner has not been able to comply with the mandatory provisions of section 13 of the Pre emption Act successfully, therefore, has rightly been non -suited.

4. In view of the allegations and assertions of the parties, the learned lower Court recorded their evidence for and against and thereafter non-suited the pre-emptor/petitioner vide judgment/decree dated 08.03.2010 and aggrieved of the same, the petitioner filed appeal in the Court of learned District Judge, Mansehra, but there he also met the same fate as his appeal was dismissed by the learned appellate forum vide its judgment dated 22.04.2010. The petitioner has impugned the judgments of the Courts below by filing the instant revision petition under section 115 of the Code of Civil Procedure.

5. Arguments heard and record perused.

6. Before adhering to the other merits of the case, it will be more appropriate to state that Rehmat Gul the respondent/vendee had purchased certain landed property vide mutation Nos.5973 dated 21.01.2004 and 5980 dated 18.03.2004. Both the mutations were pre-empted by Khawaj Muhammad petitioner by filing two separate suits, however, in both the cases he was non-suited by the Courts below concurrently. Aggrieved of the judgments of the Courts below, the petitioner filed two Civil Revisions bearing Nos.284 and 285 of 2010. While going through the record of both the petitions one could reach to an irresistible conclusion that in Civil Revision No.285/10 the petitioner has challenged the sale made through mutation No.5980 attested on 18.03.2004 but as against that in the said petition he had placed the record of mutation bearing No.5973. Simple is that the copies of the plaint, written statement, issues, entire evidence, grounds of appeal and judgments/decrees of the Courts below pertain to mutation No.5973. During the course of arguments learned counsel for the petitioner was also confronted with the situation but he stated at the bar that it is a technicality. I know that law always favour resolution of dispute(s) on merits but in the present case the position is altogether different in that here the grounds taken in the revision are against the record appended with the petition. On the face of it sense of responsibility is lacking on the part of the petitioner and the opposite party could not be made to suffer on that account. Any way, in view of the involvement of valuable rights of the parties, this Court in the interest of safe administration of justice would decide the revision on its own merits and in this respect guidance is also derived from a case law titled "Bashir Ahmed and others v. Ahmed Yar Khan and others" reported as 2013 SCMR 1047.

7. Coming to the merits of the case, it appears from the record available on file that as per version of the pre-emptor on 24.01.2004 he visited the shop of Azeem Khan where at about 10.00 a.m. he was informed by the said Azeem Khan about the impugned transaction and, hence, he there and then declared his intention to pre-empt the suit transaction. While appearing as PW-5 the pre-emptor has stated in support of the contents of the plaint. Azeem Khan the informer has been examined as PW-6. He is the relative of the pre-emptor. According to him he conveyed the information of the impugned sale to the pre-emptor on 24.01.2004, that too at the time when he (pre-emptor) visited his shop situated at Chattar Plain. Again it is in evidence of Azeem Khan (PW-6) that he and the petitioner both were having mobile phones. There is nothing on record from whom the informer gained the knowledge about the suit transaction and on what date. In the given circumstances, if the informer had the knowledge about the suit transaction, he could inform the petitioner on that very day or at the most on the following day. The testimony of both the pre-emptor and PW Azeem Khan as is evident from the record is not of the caliber, which in the circumstances of the case could be relied upon. In fact the probative worth of their testimony have been diminished completely at the time when they faced the test of cross-examinations. By now it is more than settled that the law if it has to be stretched, stretch it in favour of the vendee/defendant and not the pre-emptor/petitioner. Admittedly, the right of pre-emption being a feeble right is to be proved strictly in accordance with law through cogent, coherent and trust worthy evidence but in the present case the petitioner has failed to prove the first mandatory provision of talb-e muwathibat. For successful exercise of right of pre-emption the proof of superior right of pre-emption and performance of talb-e-muwathibat followed by Talb-e-ishhad in its respective chronological order are sine qua non. If the case of the pre -emptor is deficient of any one of these legal requirements his suit is liable to be dismissed, as in the instant case where the pre-emptor has failed to comply with the first mandatory provision of the Act referred to earlier and which position stands rightly been appreciated by the courts below concurrently.

8. Besides the above, it may be stated that the factum of talbs is a pure question of fact and in this respect the concurrent findings arrived at by the Courts below cannot be interfered with in the exercise of revisional jurisdiction because the learned counsel for the petitioner has not been able to pin point that the judgments impugned herein suffer from any jurisdictional error or that the courts below have acted in the exercise of their jurisdiction illegally or with material irregularity. The question with respect to the revisional powers of this Court was attended by the august Supreme Court in a case titled "Umar Dad Khan and another v. Tila Muhammad Khan and 14 others" reported as PLD 1970 SC

288. The view was reiterated by the Hon'ble Supreme Court in a case titled "Muhammad Bux v. Muhammad Ali" reported as 1984 SCMR

504. It was further re-enforced by the august Supreme Court in a case titled "Haji Muhammad Din v. Malik Muhammad Abdullah" reported as PLD 1994 SC 291.

9. Deriving wisdom from the above precedents of the apex Court, interference in revision with decisions regarding matters which are within the discretion of subordinate courts is not warranted unless order is contrary to the principles governing the exercise of such discretion or the court had acted perversely or arbitrarily. Improper exercise of discretion may be corrected in appeal but not in revision. Revisional jurisdiction is directed against the irregular exercise, non-exercise or illegal assumption of jurisdiction and not against the conclusion of law or fact not involving question of jurisdiction, however, erroneous they may be.

10. It is settled principle of law that findings recorded by the court of competent jurisdiction cannot be interfered with by the High Court, in exercise of its revisional jurisdiction under section 115, C.P.C, unless such findings suffer from jurisdictional defect, illegality or material irregularity, which element in the instant case as discussed earlier is missing, resultantly, the revision petition being without any substance stands dismissed, leaving the parties to bear their own costs. ZC/57/P Revision dismissed.