2004 PLP 1412 (YLR)

(3) Whether the requirement of Talbs have not been fulfilled? If so, what effect? OPD (4) Whether the defendant is entitled to recover the incidental charges from the plaintiff in case of decree? If so, to what extent? OPD (5) Whether the ostensible sale price of Rs.1,30,000 was fixed in good faith or actually, paid at the time of sale? OPD (6) If the above issue is not proved, then what was the market value of the suit‑land at the time of the sale? OP Parties (7) What is the effect of preliminary objection No.5 of the written statement? OPD (8) Whether the plaintiff lacks cause of action? OPD (9) Relief. The parties adduced evidence in support of their respective claims. Learned trial Court decided Issue No.3 in favour of respondent‑defendant. It was observed that land was sold out for a consideration of Rs.1,30,

000. Also that plaintiff‑petitioner had superior right of pre‑emption qua the respondent and decided Issue No.1 in favour of plaintiff but suit was dismissed vide judgment dated 26‑4‑1994. The petitioner filed appeal against the said judgment and decree and the same was dismissed by learned District Judge, Mianwali vide impugned judgment. Hence this revision petition.

3. The revision petition was admitted to regular hearing on 12‑1‑1997 and notice was accordingly issued to the respondent who engaged Mirza Shaukat Ali, Syed Mumtaz Hussain Bukhari and Sardar Ahmed Naeem, Advocates and their names duly appear in the cause list but none has appeared on behalf of the respondent, therefore, he is proceeded against ex parte.

4. I have heard the arguments of learned counsel for the petitioner and perused the record.

5. As mentioned above, suit brought by the petitioner‑plaintiff was dismissed only on the basis of finding on Issue No.

3. Learned trial Court observed that petitioner had failed to fulfil Talbs. The perusal of record shows that petitioner‑plaintiff examined P.W.2, Umar Hayat and P.W.3, Muhammad Siddique in addition to his own statement. P.W.2, Umar Hayat, clearly stated that about nine months back, he alongwith Muhammad Siddique visited the house of plaintiff‑petitioner and in their presence Imam Bux, also reached the house of the petitioner and informed him that Kamal had sold his land, whereupon, A petitioner‑plaintiff declared that he would file pre‑emption suit as he was a co‑sharer, thereafter, he alongwith petitioner‑plaintiff and 'Muhammad Siddique went to the Advocate in `Kachehry' and notice was sent to defendant. He stated that he had signed notice (Exh.P.1), whereas, Muhammad Siddique and petitioner‑plaintiff had thumb marked the same. P.W.3, Muhammad Siddique also made similar statement. There is no material contradiction or discrepancy in their statements. Similarly, plaintiff has clearly mentioned in plaint that on 15‑8‑1992, he was present in his house alongwith Muhammad Siddique and Umar Hayat when Imam Bux informed him about the sale and in the same meeting (Majlis) he made immediate demand (Talb‑i Muwathibat). It is pertinent to note that defendant admitted in his cross‑examination that postal receipt (Exh.P.3) bears his thumb‑impression. However, learned trial Court and learned District Judge decided the case only on the basis of surmises and conjectures. Learned District Judge observed that "it is not known as to for what purpose Umar Hayat and Muhammad Siddique were present in the house of plaintiff and that arrival of Imam Bux was also doubtful." However, it has been next observed that according to Gulmir, P.W., Imam Bukhsh had come to him for asking his son to graze his cattle and while giving information of sale he had not told him the number and date of mutation and that Muhammad Siddique, P.W. , stated that Imam Bux had not disclosed the purpose of his arrival. Also that it is admitted that vendor had delivered the possession of the suit‑land and vendee had started cultivating immediately after its purchase but it is not believable that the petitioner‑plaintiff, who is co‑sharer and Banna Shareek did not learn about the transfer of ownership and possession of the suit land from his brother, Kamal to Rab Nawaz, defendant, at any occasion before the filing of the suit, therefore, the witnesses produced by the C plaintiff‑petitioner, were not truthful witnesses. The mutation in question (sale Mutation No.1109 Exh.P.5) shows that it was a joint Khata and vendor had only transferred his share (land measuring 40 Kanals i.e. 40/289 share out of 289 Kanals) and no specific number was transferred. However, no copy of Khasra Girdawari has been produced by defendant to show that he had obtained possession on the basis of sale in question. Even otherwise, there is no cogent evidence from defendant's side to show that plaintiff gained knowledge of possession, therefore, learned trial Court and learned District Judge have based their findings without any evidence on record.

4. As mentioned earlier, statements of P. Ws. 1, 2 and 3 are convincing and confidence inspiring, therefore, learned District Judge discarded their statements without any justification. Likewise, learned D trial Court decided Issue No.3 without any evidence and gave finding without examining evidence of the material witnesses. In these circumstances, I find that judgments of learned trial Court as well as of learned District Judge are based on misreading and non‑reading of evidence and the same has prejudiced the case of the petitioner‑plaintiff and resulted in miscarriage of justice. So, the same cannot be sustained and justifies interference by this Court.

5. The upshot of the above discussion is that revision petition, brought by Gulmir, is accepted; impugned judgments and decrees are set aside and suit brought by him is accordingly decreed in his favour. He is directed to deposit remaining sale price within 30 days, failing which, this revision petition shall be deemed to have been dismissed. No order as to costs. M.I./G‑331/L Revision accepted.