1998 PLP 956 (SCMR)

S.A.M. Quadri, Advocate-on-Record for Petitioner. Khushnood Ahmed, Advocate Supreme Court and M.K.N. Kohli, Advocate-on-Record for Respondent No. 1. Date of hearing: 4th July, 1994. ZIA MAHMOOD MIRZA, J,- This is a petition for leave to appeal against the order of the High Court of Balochistan dated 19-5-1993 dismissing the petitioner s revision petition against the judgment of Additional District Judge-II, Quetta dated 15-3-1993 whereby appeal of respondent No.1 was allowed and the pre-emption suit of the petitioner dismissed. 2. Facts shorn of unnecessary details leading to this petition are that, Ghulam Muhammad respondent No.2 sold kome land to Ali Muhammad, the predecessor-in-interest of respondents Nos,2 to 7 vide Mutation No.202 dated 19-10-1988 who later sold it to Abdul Sattar respondent No. 1. In fact, respondent No. 1 brought a suit to pre-empt the sale made in favour of Ali Muhammad which suit was decreed on 27-5-1989 on the basis of a compromise and the transaction was given effect to in the revenue record vide Mutation No.205 dated 29-5-1989. Petitioner then filed a suit for possession through pre emption in respect of the land forming the subject-matter of afore-referred sales claiming superior right of pre-emption on the ground, inter alia, that his land was situate adjacent to the suit land. It was averred by the petitioner that when he came to know about the sale transaction in favour of Ali Muhammad, he went to him and made proper demands for pre-emption in the presence of the witnesses and offered the consideration amount to the vendee who accepted his claim but delayed the matter on one pretext or the other and later got the land in dispute mutated in favour of respondent No.1 to defeat the pre-emption right of the petitioner. It was further alleged by the petitioner that on coming to know of the decree passed in favour of respondent No. 1, he reiterated his right of pre-emption and made necessary demands to the respondent before the witnesses and offered consideration amount to him which he refused to accept. The suit was contested by Abdul Sattar respondent on the ground, inter alia, that the petitioner had not made requisite 'Talabs' in accordance with law. 3. The trial Court after faming necessary issues and recording the evidence adduced by the parties decreed the petitioner's suit vide judgment dated 22-7-1992. Respondent No. I preferred an appeal which as stated above was accepted by Additional District Judge-II, Quetta holding that "Talab-e-Mowasibat and Talab-e-Islihad are conditions precedent to the exercise of the right of pre-emption," and that the petitioner/plaintiff failed to make the requisite demands in accordance with law. Petitioner's suit was accordingly dismissed by the Appellate Court. Feeling aggrieved, petitioner took the matter in revision before the High Court of Balochistan but with no better result as the learned Chief Justice of the High Court dismissed the petitioner's revision petition upholding the finding of the Appellate Court with the observation that "On proper re-evaluation of the record and consideration of para. No.236 from Principles of Muhammadan Law by D.F. Mulla. it is quite apparent that Talab e-Mowasibat and Talab-e-Ishhad have not been made as prescribed. Appellate Court on fair appraisement of evidence adduced by the parties has arrived at correct conclusion which, therefore, does not warrant interference in exercise of revisional jurisdiction within 'the purview of section 115, C.P.C." This was vide judgment dated 19-5-1993 against which leave to appeal is sought through this petition. 4. Learned counsel appearing in support of this petition sought to assail the findings of the Courts below on the issue of 'Talabs' by contending that the evidence led by the petitioner on this issue has been misread by the Courts below. We find no merit in this contention. Learned Additional District Judge after thorough appraisal of the evidence on the record particularly the statement of the plaintiff came to the conclusion that the plaintiff "has not specifically stated as to in whose presence he made the first demand to appellant" and even the second demand 'Talab-e-Ishhad' which he stated to have made in the presence of P. W.3 Abdul Razzaq and P. W.5 Abdul Khaliq was not duly proved inasmuch as Abdul Razzaq did not utter a single word about any demand. It was further pointed out by the learned Additional District Judge that the second demand in any case was not made by the plaintiff in the manner prescribed as he did not make a reference expressly to the fact that he had already made the first demand (Talab-e-Mowasibat) before such and such person. Reference in this behalf was made to the statement of P.W.5. Additional District Judge further held in para. 7 of his judgment "the statement and evidence of respondent No.1 clearly indicate that respondent No.1 has committed delay in making the first demand to Ali Muhammad, the first purchaser of the land iii dispute. He has also not made the second demand to Ali Muhammad or the first demand to appellant. Even otherwise, the evidence of respondent No.1 available on record of the lower Court has major discrepancies in it and the testimony of his witnesses becomes incredible". The learned Chief Justice of the High Court on going through the record has also observed that "It is the case of petitioner that he alongwith P.W. Abdul Khaliq and Abdul Raziq, had gone to respondent Abdul Sattar, for making Talab-e-Ishhad. Undisputedly P. W.3 Abdul Raziq, does not mention about accompanying petitioner or P.W. Abdul Khaliq, for making alleged Talb e-Ishhad. His testimony is contradictory to version of above witnesses. Additionally factum of Talab-e-Mowasibat having been earlier made and its reiteration is conspicuously missing from the deposition of petitioner as well as P.W. Abdul Khaliq". 5. We have examined the evidence available on the present record and find that it has been duly appraised/considered by the High Court and the lower Appellate Court whose findings on the question of 'Talabs' are, therefore, not open to any exception. Since the petitioner has been held to have not made the 'Talabs' in accordance with law before filing the pre-emption suit, his suit was rightly dismissed by the Appellate Court. In the circumstances, `this petition has no merit and the same is accordingly dismissed. A.A./K-309/S Leave refused.