2017 PLP 117 (CLCN)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The concise facts of the case are that undeniably the suit property was owned by Mst. Kishwar Sultana, the real sister of respondent, who sold it out to petitioner (now represented through LRs) vide mutation No.1170 dated 28.01.2003. On 28.05.2003 respondent pirated the transaction through institution of a suit for possession while pre-empting it with the assertion that same was kept secret, which came into his knowledge on 21.05.2003 at 4.00 p.m. while present at his residence along with Nasir Mehmood (PW3), when Muhammad Iqbal (PW2) came there and communicated its information to him, who then and there fulfilled the first demand by proclaiming his intention to pre-empt it. Thereafter, on 22.05.2003 alleged second demand was fulfilled by dispatching notice Talb-i-Ishhad (Exh.P1) through registered post A.D. and the suit was instituted by respondent on 28.05.2003 without waiting whether (Exh.P1) was served upon the vendee or not and that is why he could not narrate in his plaint that it was received by petitioner or not. The suit was vehemently contested by petitioner with the stance that disputed sale from its genesis was in the knowledge of respondent, who was available when bargain was settled with his sister and that requisite demands were also not fulfilled. The learned Trial Court in the light of divergent pleadings of the parties settled the following issues:-

1. Whether the actual sale price of suit land Rs. 1000000/- but in order to defeat the right of pre-emption Rs.1200000/- has been incorporated in the mutation? OPP

2. Whether the plaintiff has superior right of pre-emption qua the defendant? OPP

3. Whether the plaintiff has fulfilled the requirements of necessary Talbs as per law? OPP

4. Whether the plaintiff is estopped by his words and conduct to file this suit? OPD

5. Whether the suit is incorrectly valued for the purposes of court fee and jurisdiction, if so, what is correct valuation of the suit? OPD

6. Whether the defendant has incurred incidental charge amounting to Rs. 13,32,000/-and he is entitled to recover the same in case the suit is decreed? OPD

7. Whether the defendant is entitled to recover improvements charges, in case the suit is decreed in favour of the plaintiff? OPD

8. Whether the suit is frivolous and vexatious and defendant is entitled to compensatory costs? OPD

9. Relief.

2. After recording evidence of the parties and appreciating the same, learned Trial Court decreed the suit of respondent through judgment and decree dated 15.10.2008, which was further congealed by the learned Lower Appellate Court when appeal of the petitioner was dismissed vide judgment and decree dated 24.08.2010, which are subject matter of the instant civil revision.

3. It is mainly contended by Sh. Naveed Shahryar, Advocate, learned counsel for petitioner that impugned judgments and decrees passed by both the courts below are classic example of misreading and non-reading of evidence; that both the courts below failed to consider the aspect that vendor as well as the pre-emptor were sister and brother inter se and the sale was in the knowledge of respondent from the day of its inception, whereas the fulfillment of alleged first demand alleged to have been made after almost four months was fictitious and concocted story; that respondent was required to bring on record the acknowledgment due receipt to prove that registered post containing notice Talb-i-Ishhad had actually been served upon petitioner and that Booking Registry Clerk was also not got summoned by respondent to prove that registered post was dispatched to the petitioner. He while highlighting the contradictions in the statements of PW1 to PW4 as well, has prayed for acceptance of instant civil revision, setting aside of impugned judgments and decrees and dismissal of suit of respondent.

4. Conversely, Mr. Zaheer Zulfiqar, Advocate, learned counsel for respondent has refuted the arguments advanced by learned counsel for petitioner and while supporting the impugned judgments and decrees has submitted that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure, 1908. He has further submitted that neither any major contradiction could be pinpointed in the statements of PWs nor respondent was aware of the transaction of sale settled by his sister as relations among vendor and respondent were strained when the sale was effected.

5. With able assistance rendered by learned counsel for both the parties, I have considered and perused the record thoroughly.

6. In pre-emption cases, issue qua performance of Talbs is vital and in every such case, it is sine qua non for a pre-emptor to cross the said barrier while bringing on record cogent, and convincing evidence for its proof as per law, otherwise, a decree could not be awarded to him despite he succeeded to establish his superior right. While commenting upon merits of the case, it is straightaway noticed that respondent omitted to mention in the plaint that vendor was his real sister, but while appearing in the witness-box being PW1, he was compelled to concede the reality. The aforenoted omission appears to be engineered one and based on mala fide to graft the story for the performance of belated demands and that is why in his statement, respondent being PW1 worded that his relations with the vendor were not harmonial since three years prior to attestation of sale mutation, but if said version introduced in statement-in-chief of respondent is admitted to be correct, then while keeping in mind that impugned mutation was attested on 28.01.2003, as per calculation, his relationship with the sister became strained on or before 28.01.2009, whereas, learned counsel for petitioner while drawing attention of this Court towards attested copy of mutation No.1005 dated 12.09.2000 (Exh.D4) has succeeded to belie/disprove the aforenoted testimony of PW

1. The perusal of Exh.D4 reveals that Kishwar Sultana, the sister of respondent, appointed her brother/respondent being her general attorney and the latter while performing said authority alienated the other property of his sister to Muhammad Hussain etc., meaning thereby that the vendor had not only cordial relations with respondent/pre- emptor, but she had also confidence in him till 12.09.2000 when Exh.D4 was attested. The respondent in his cross examination also admitted that Exh.D4 was got attested by him being general attorney of the vendor. The admission on the part of respondent has left nothing, but to believe that respondent made a false statement beyond his pleadings that his relations with his sister/vendor were not amicable.

7. In this regard, the other admission of PW1 that his residential house was still common with his sister/vendor is also of great importance and the argument of learned counsel for respondent that after her marriage, the vendor had migrated to Kharian, but the perusal of notice Talb-i-Ishhad (Exh.P1) reveals that respondent in his notice had himself averred that she was resident of the same village where he was residing. It is well-established principle that the documentary evidence cannot be excluded by oral assertions. So respondent failed to prove that his sister was residing in Kharian. Even if it is presumed that relationship of respondent with vendor/sister were not cordial and she was not residing in the same village at the time of attestation of mutation in favour of petitioner, then this fact should have been pleaded by respondent in the plaint, but neither it was mentioned therein nor except oral statement of respondent, any other material is available on file to substantiate the same and it is settled law that a party has to first plead facts and pleas in the pleadings and then to prove the same through evidence. A party is not allowed under the law to improve its case beyond what was originally set up in the pleadings. The principle of "secundum allegata et probata" (that a fact has to be alleged by a party before it is allowed to be proved) is fully applicable in this case, which has full command of provisions of Order VI, rule 2 and Order VIII, rule 2 of the Civil Procedure Code, 1908. As such any evidence led by a party beyond the scope of its pleadings is liable to be ignored. Reliance can be placed upon the judgments reported as Muhammad Wali Khan and another v. Gull Sara Khan and another (PLD 2010 SC 965) and Haier Ali Himeji v. Vito Additional District Judge, Karachi (South) and another (2012 SCMR 254), wherein it was held that in absence of specific pleadings, the court could not allow a party to grope around and draw remote inferences in his favour from his vague expression. Additionally, except for sole statement of respondent, no other supporting witness was examined by him for vindicating his testimony. The vendor/sister of respondent being the best person was available to him to prove that her relations with him were not cordial at the relevant time. The argument of Mr. Zulfiqar Zaheer, Advocate that when relations of both of them were not harmonial, then she would have not made statement in favour of her brother, is misconceived. Had she been got summoned and made statement militant to the stance of the respondent, then he could have availed the right of cross-examination while getting her declared hostile and true picture could be brought on the record regarding alleged strained relations, but despite availability, she or any other member of the family was withheld and adverse inference has to be drawn against respondent under Article 129 Illustration (g) of the Qanun-e-Shahadat Order, 1984.

8. A person having judgmatic sense cannot believe that factum of sale of pre-empted property by the sister of a brother situated in the same khewat and khasra number where the property of pre-emptor also located and possession of the same was also handed over to the vendee forthwith, could have remained secret from his knowledge for a long time. It is also not the case of respondent that he was not residing in the same village where the pre-empted property was situated. The general attorney of petitioner being DW1 specifically deposed in his statement-in-chief that respondent was aware of the disputed sale from the day of its commencement as he was also involved in the settlement of bargain. Despite lengthy cross-examination by learned counsel for respondent, DW1 not only remained consistent with his said part of statement-in-chief, but he also disclosed that bargain was settled in the drawing room of respondent in his presence besides some other persons, whose names were also disclosed by him and notwithstanding the fact that respondent was awarded a chance to produce his rebuttal evidence, neither he nor the persons whose names were unveiled by DW1 were examined to shatter his testimony. So the argument of learned counsel for petitioner that the disputed sale was already in the knowledge of respondent since its beginning and stance qua performance of first demand after an elapse of four months was concocted and self-grafted, has force and convincible. The superior courts have already clinched the controversy under discussion in the judgments reported as Muhammad Bakhsh v. Nisar Ahmad (1985 CLC 1974), Mst. Hameedan Begum and 11 others v. Muhammad Jafar (2006 MLD 1034), Basharat Ali Khan v. Muhammad Akbar (2011 CLC 969), Naseer Ahmad v. Ahmad (PLD 1984 SC 403) and Abdul Hameed and others v. Muzamil Haq and others (2005 SCMR 895) and in Naseer Ahmad's case (supra), it was held as under:- "

7. It is universally accepted that pre- emption is a piratory right, where a person plugs in his claim to purchase a certain piece of land or property after another person has purchased it. There is no dearth of cases, in actual practice, where the pre-emptors are close relatives of the vendors themselves and knew all about the transaction while it took place, but did not come forward to purchase it at that time. They allow another person to purchase it; wait for the whole year and then, on the last date of the period of limitation, they suddenly spring a surprise on him by filing a suit for pre- emption with the object (as appears to be the intention in the present case) to obtain the property in question at a nominal price, because it is expected that the case shall be decided after many years, by which time price of the land shall have been enhanced manyfold and the price that he would be required to pay shall be the one prevailing at the time of the transaction. As a matter of fact, we have come across cases where the father sells land and his son files a suit for pre-emption, which cannot but lead one to assume that there was collusion between the two. We feel that such suits are very often mala fides because if the pre-emptor is genuinely so keen to purchase the land or property in question, he would gladly pay the price which is being offered to the vendor by another person or come forward and tender the highest bid at an auction rather than wait till the transaction is complete and thereafter spend twenty years of his life in litigation and incur huge expenditure which was in many cases be even more than the actual price of the land or the property at the time of the sale or auction. Apparently the motive behind it is to create a hurdle in the way of the vendee for his own benefit, because the vendee is compelled in many cases to dish out large sums of money as a price for the withdrawal of the suit by the plaintiff. The latter does not therefore deserve relief through courts of law." The scanning of the same re-affirms that where the pre-emptor was close relative of the vendor, having knowledge about transaction when it took place, who instead of stepping ahead to purchase it at that time allowed another person to purchase the property, but thereafter his attempt to pre-empt the same is nothing, except to blackmail the vendee and to curb the said tendency the superior courts have already took its serious notice in the cited judgments.

9. There is yet another damaging factor that respondent without disclosing any specific venue vaguely pleaded in para-4 of the plaint that he performed first demand at his residence, but when he appeared in witness-box as PW1, he while making improvement, stated that it was performed in his drawing room, whereas, Muhammad Iqbal (PW2) one of the participants of Majlis in his cross-examination deposed that first demand was fulfilled by respondent in his western bed room of his residence. This glaring contradiction has also made a serious dent in the version of pre-emptor that where first demand was actually made.

10. The third vital aspect of the case is that respondent did not bring on record the acknowledgment due card to prove that registered post containing notice Talb-i-Ishhad was delivered to petitioner. No doubt the postman was got summoned, who along with his record made statement being PW4 and alleged that on 25.05.2003, the registered Dak was delivered to petitioner. The copy of the entry made by him in his register was also tendered in his statement as Exh.P3, who also deposed that acknowledgment due card was returned by him to the concerned Post Office. Perusal of Exh.P3 unfolds that neither it bears the signatures of the addressee/petitioner to whom it was allegedly delivered nor any report of the postman along with his signatures is available therein that the same was delivered to the actual person. The entry of the Register maintained by the postman cannot be equated at par of acknowledgment due card. The Legislature while drafting section 13 of the Punjab Pre emption Act, 1991 mandated that the notice Talb-i-Ishhad should have to be dispatched through registered post A.D. The respondent/pre-emptor, who allegedly dispatched notice through registered post was under obligation to have made a search for the A.D. receipt, which was tagged with the registered post containing notice Talb-i-Ishhad and that was to be received by him for the affirmation of the due delivery. It is borne out from the record that he never made any effort to trace out A.D.card or sought leave of the court to prove the same by leading secondary evidence on the ground of being lost and merely by production of copy of Register maintained by the postman, it cannot be assumed that notice Talb-i-Ishhad was actullay served upon petitioner especially in the scenario that respondent also remained silent as per contents of his plaint, if the said notice was ever received by petitioner. When it was in the knowledge of respondent that A.D. receipt was not received by him and he also deposed so in his examination-in-chief, then the substitute thereof should be brought on the record after seeking permission from the court in this regard. In such a situation, Exh.P3 is liable to be ignored. Reliance can be placed on the judgments reported as Ghulam Sarwar and 6 others v. Mushtaq Ahmad and others (2006 YLR 1019), Muhammadi Begum v. Abdul Latif and others (2006 YLR 1588) and Muhammad Rafique and 7 others v. Noor Ahmad (2004 MLD 1554). Moreover, the respondent in his statement-in-chief got exhibited postal receipt (Exh.P2) without summoning the concerned Postal Booking Clerk, which lapse on the part of respondent has also compelled this court to draw an adverse inference against him. In the wake of such discussion, the findings of courts below on issue No.3 are unwarranted, which are hereby reversed and the said issue is answered in the negative. Since respondent failed to cross the barrier of proving performance of requisite Talbs as per law, which is sine qua non to succeed in a suit for pre-emption, I do not feel it necessary to dilate upon the other issues, which will be sheer wastage of time.

11. At the remnant stage of his arguments, learned counsel for the respondent has submitted that the concurrent findings of the courts below cannot be derailed by this court while exercising revisional jurisdiction provided under section 115 of the Code of Civil Procedure, 1908. It is correct that normally this Court does not intrude in the concurrent findings of the fact recorded by two courts below, but when there is gross misreading and non-reading as well as patent violation of the law is floating on the surface of such concurrent findings, this Court cannot shut the eyes and is always under obligation to rectify the error by making interference in such like illegal findings. In this view of the matter, the said contention of learned counsel for respondent is also not tenable as both the judgments and decrees after having been found to be the result of misreading and non-reading of evidence as well as non-adherence to the law applicable in this regard cannot be sustained.

12. The accumulative effect of the above discussion is that instant civil revision is accepted, impugned judgments and decrees passed by learned courts below are hereby set aside and suit instiuted by respondent stands dismissed while leaving the parties to bear their own costs. ZC/M-56/L Revision allowe