2007 PLP 966 (CLC)

SALIK KHAN, J.

Suit No.53/1 was instituted by Syed Sadiq Hussain Shah against Noshad Muhammad for possession through pre-emption of landed property in the suit Khasra No.37 sold vide registered Deed No.1232 attested on 16-12-1997. The suit of the plaintiff was contested. Evidence of' the parties was recorded. The learned Civil Judge, Mansehra vide judgment and decree, dated 30-3-2002 declared that the plaintiff was not entitled to the decree as prayed for as he had not made "Talb-e-Muwathibat" properly. The appeal was accepted on 22-3-2004, by the learned Additional District Judge, Mansehra in Civil Appeal No.22/13 instituted on 11-12-2002. A decree as prayed for was granted in favour of the plaintiff with the direction to deposit the remaining pre-emption amount within 30 days otherwise the suit of the appellant would stand dismissed with cost. Hence this civil revision.

2. The learned counsel for the parties argued the case in detail. The first objection was that time was not mentioned by the plaintiff in his statement. Date, time and place were clearly mentioned by the plaintiff in his plaint. The plaintiff referred to the incident during which he had come to know about the sale of the suit property. He clearly mentioned the Tehsil building as the place and 24-1-1998 as the date on which he had got information from Muhammad Sabir. This statement was in support of the plaint through which the case of the plaintiff was initiated. Muhammad Sabir son of Muhammad Yaqoob appeared as P.W.9 but he was a different person from Muhammad Sabir son of Muhammad Zaman. The plaintiff was not cross-examined on the point of time when he appeared as P.W.10 rather there was no cross-examination about the date and place of the information except the suggestion that "Talb-e-Muwathibat" was not made, and was not made in accordance with law. This non-mentioning of time with mention of the place and date as well as time in the plaint, and reference to the same, is not fatal to the suit.

3. The price of the land in question is not disputed. The main question in this case was whether the plaintiff was or was not a co-sharer in the suit property. Learned counsel for the parties referred to the Revenue Record, copy of which is available on page 33 of the file. Shah Qurban Shah and Sadiq Hussain Shah (present respondent-defendant) sons of Sakhi Shah were shown as "Hissadaran-e-Shamilaat" for Khasra No.37 of Mauza Hado Bandi. Mst. Kubra and Manzoor Hussain were "Malikan-e-Qabza", out of whom Manzoor Hussain was "Asal Malik" as well as "Malik-e-Qabza" while the present plaintiff/respondent was not "Malik-e-Qabza". It meant that the present plaintiff along with his brother and Bibi Roshan Jan widow of Haider Shah had disposed of their entire property in the suit Khasra number before the sale in question, rather before 1995-96, and they had no right whatsoever with respect to Khasra No.37 in dispute. On the basis of the rights of the said Khasra number, the plaintiff, with the other two named persons, had remained co-sharer in the joint village property but was not owner in any part of the suit Khasra number. The learned counsel for the petitioner relied on 1997 CLC 809, 1987 CLC 101 and 1980 SCMR 692 in this respect. He further contended that informer should have been produced but was not produced and the statement of the plaintiff-pre-emptor remained unsupported by any supportive evidence. He relied on 2002 SCMR 235, 2006 CLC 1926 in this respect.

4. The learned counsel for the pre-emptor/respondent referred to the provisions of section 13 and contended that any word could be used for pre-empting the suit property. The words were not disputed by the defendant. He further contended that the statement of pre-emptor on oath supported by the notice was enough and there was no need for the production of Muhammad Sabir, son of Muhammad Zaman (informer). He relied on 2000 CLC 252 and 1999 SCMR 724 in this respect. The statement of a pre-emptor on oath with the proof of notice of "Talb-i-Ishhad", ordinarily, may be enough for his assertion that he had made "Talb-e-Muwathibat" at certain date, time and place. But when he names an informer, it becomes necessary for him to support his statement with the statement of such an informer, otherwise the provisions of section 129(g) of Qanun-e-Shahadat, 1984 would come into play, and adverse inference may be taken against him by the Court.

5. As already discussed above, the plaintiff was not co-sharer in the suit property and had no right of pre-emption. The legal position could not be properly appreciated by the learned two Courts. A mere co-sharer in Shamilaat on the basis of previous ownership in Khasra number does not have any right in respect of such Khasra number, which may entitle him to any right of ownership regarding the said Khasra number.

6. As Sadiq Hussain Shah pre-emptor was not owner in the suit Khasra number at the time of sale in question, he had no right of pre-emption, and the decree granted in his favour is the result of misreading of evidence. I, therefore, accept the present civil revision, set aside the impugned judgment and decree of the learned Additional District Judge, Mansehra dated 22-3-2004 and dismiss the suit of the plaintiff, but leaving the parties to bear their own costs. The plaintiff shall be at liberty to withdraw the amount deposited by him as the pre-emption amount. H.B.T./65/P Revision accepted.