2010 PLP 1568 (CLC)

MUHAMMAD SAFDAR KHAN SIKANDRI, J.

This civil revision petition is directed against the judgment and decree dated 26-6-2006 passed by learned District Judge, D.I.Khan whereby the appeal filed by the petitioners, against the judgment and decree dated 17-7-2000 passed by Civil Judge, Paharpur, was dismissed.

2. The facts giving rise to the instant revision petition are to the effect that the respondents filed suit against the plaintiffs-petitioners for possession through pre-emption of land detailed in the heading of the plaint. The suit was contested by the petitioners by filing written statement. Out of the pleadings of the parties, the learned trial Court framed as many as eleven issues including the relief. The parties produced their respective evidence as they wished to adduce and after hearing the arguments of learned counsel for the parties; the learned Civil Judge, Paharpur decreed the suit of the respondents vide judgment and decree dated 25-7-2005.

3. Having felt aggrieved from the impugned judgment and decree, the petitioners filed appeal which was dismissed by learned District Judge, D.I.Khan vide judgment dated 26-6-2006 and hence the present revision petition.

4. Learned counsel for the petitioners contended at the bar that the suit-land was gifted by Ghulam Sarwar defendant in favour of his nephews namely Allah Bakhsh and Khuda Bakhsh petitioners and the gift Mutation bearing No.1073 dated 31-8-2001 was entered in the Revenue Record which is exempted from pre-emption, however, the evidence produce by the petitioners was not appraised by the trial Court as well as the appellate Court and both and judgments of the Courts below are liable to be set aside. Learned counsel for the petitioners further urged before me that on 2-2-2002 written statement on behalf of the vendor duly bearing the date as 2-1-2002 was submitted with mala fide intention in the trial Court where the transaction was fictitiously shown as sale and the findings of the Courts below in this regard are totally misconceived. He further urged that the averments taken in the written statement will not take the place of evidence until and unless the grounds taken regarding the sale are proved by producing cogent evidence and the said evidence is lacking in this case in favour of the respondents but even then decree was granted in their favour erroneously.

5. On the other hand, learned counsel for the respondents contended that sale in favour of petitioners was very much proved because the vendor himself has admitted the sale in his written statement and the same has not been rebutted by the petitioners through evidence. Counsel for the respondents urged that neither offer was made by Ghulam Sarwar to the petitioners nor the offer was accepted nor the petitioners were delivered the physical possession of the suit-land out of joint Khata not earlier partitioned between so many co-owners, therefore, the gift was not proved and the suit has rightly been decreed in favour of the respondents. Counsel for the respondents urged that the respondents succeeded to fulfil all the necessary requirements of Talbs according to section 13 of the N.-W.F.P. Pre-emption Act, 1987 and the trial Court as well as the appellate Court have rightly evaluated the evidence at the time of discussion over the issues as well as in appeal stage and the judgments and decrees passed in favour of the respondents do not warrant interference.

6. The submissions addressed at the bar were assessed in the light of materials available on record minutely and the findings are as follows:-

7. Fard Jamabandi Exh. P. W.2/1, Aks Shajra Kishtwar Exh. P. W.2/2 another Fard Jamabandi Exh. P. W.2/3 and one yearly average Exh. P. W. 2/5 were produced by Patwari Halqa in the trial Court. From perusal of Revenue Record available on the file, it clearly appears that the entry of Mutation No.1073 dated 31-8-20Q1 is Tamleek/gift, however, the said mutation was negated by vendor himself while submitting the written statement in the trial Court on 2-2-2002 admitting the said transaction as sale and not the gift and this development occurred during the trial which made the case between the parties controversial in spite of the fact that the vendor Ghulam Sarwar is the maternal uncle of the petitioner and he had his own sons and daughters at the time of attestation of this mutation but in view of 2007 CLC Lah. 154, admission or concession by a co-defendant was not binding on the other co-defendant who had contested the matter, therefore, Ghulam Sarwar did not depose in favour of his claim raised in the written statement because of his death during trial proceedings and that is why it is a settled principle that pleadings cannot take the place of evidence unless the concerned person is examined as witness in the Court, however, in case of gift, unless and until the three necessary ingredients of declaration, acceptance and the transfer of the possession of the suit property are fulfilled in favour beneficiaries, it cannot be considered as gift like in this case because Ghulam Sarwar vendor has his own kids and under the Shariah, he cannot deprive them from the property by gifting it to his nephews, now petitioners. The wisdom in this regard is drawn from a dictum reported in the case of Barkat Ali v. Muhammad Ismail 2002 SCMR 1938 wherein it is held that, "Necessary ingredients of a valid gift are offer of the donor, acceptance by the donee and delivery of possession". In the instant case, there is no evidence of the sort that the ingredients of Tamleek were completed between the vendor and the vendees on the part of petitioners.

8. The petitioners are the beneficiaries of the gift referred to above and the onus of probandi to be discharged was on them but they badly failed to substantiate it, therefore, the mutation has been devised in the shape of Tamleek, without the fulfilment of necessary ingredients referred to above but in fact it was a sale which is open to pre-emption. Moreover there is no Roznamcha Waqiati in respect of entry of the mutation referred to above as to who entered the said mutation because normally, the vendor is supposed to give statement before the Parwari as well as the Revenue Officer about the attestation of mutation either in the form of Tamleek or in lieu of sale consideration but the beneficiaries failed to prove this fact from revenue record as well as on the basis of cogent evidence. Reliance in this respect can be placed on 2004 CLC Pesh. 203(b) wherein it was held that, Tamleek was a type of gift and it would be proved through cogent and convincing evidence independently of mutation and Jamabandi entries and onus would lay heavily upon the beneficiaries of the same."

9. As evident from the contents of the plaint and evidence produced by the respondents, the requirements of Talb-e-Muwathibat and Talb-e-Ishhad have been fulfilled by the pre-emptor while indicating the date, the day, time and place as well as the informer necessary for establishing the right of pre-emption under section 13 of the N.-W.F.P. Pre-emption Act, 1987 and no defect whatsoever was found in it. Moreover, the respondents have superior right of pre-emption and the petitioners have no such qualifications being strangers, therefore, the trial Court has correctly appraised the evidence with regard to the issues in this respect. I may lend support from an authority titled as Mst. Farzana Bibi v. Manzoor Ellahi and others 2006 CLC Pesh. 1669.

10. In view of the above observations, I have been led to the conclusion that the Courts below have very well appraised the evidence recorded on file and have viewed the other materials minutely and reached to a correct concurrent finding which calls for no interference and resultantly, the revision petition is hereby dismissed being without force and the judgments and decrees of Courts below are upheld. H.B.T./238/P Petition dismissed.