2006 PLP 879 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.

This petition has been filed for leave to appeal against the judgment dated 5th May, 2003 passed by Lahore High Court, Lahore in Civil Revision No.730 of 2003.

2. Precisely stating the facts of the case are that respondents/ plaintiffs Nisar. Ahmad and two others instituted a suit for possession through pre-emption against petitioner Muhammad Ashraf (defendant), in respect of land, description of which has been mentioned in the plaint. It was averred in the plaint that the suit property was owned by one Muhammad Aslam Hayat, who sold the same to petitioner/defendant through Mutation No.103 attested on 16th September, 1996 against consideration of Rs.50,000 but to defeat the superior pre-emptive rights of the plaintiffs/respondents, a fictitious sale price of Rs.80,000 was incorporated in the mutation. On the same day, when the respondents/ plaintiffs were present in the Haveli of Muzaffar Khan, they came to know about the sale in presence of Khadim Hussain and Ghazanfar Ali. They at once declared their intention to pre-empt the same, there and then. Thereafter, on 18th September, 1996, they issued notice for Talb-i-Ishhad to respondent confirming their intention to pre-empt the suit-land. It is further averred that since the respondents/plaintiffs are co-sharer in this joint Khata, thus, being Shafi-Sharik have got superior right of pre-emption qua the petitioner/defendant. The suit was contested by the petitioner/defendant by way of filing written statement wherein he has taken numerous preliminary objections as well as objections on facts with the assertion that the plaintiffs/respondents were estopped by their words and conduct to institute the suit and prayed for dismissal of the suit. Learned trial Court after framing of issues arising of the pleadings and having gone through the evidence led by the parties in support of their respective contentions, dismissed the suit vide judgment/decree dated 27th September, 2001. Feeling dissatisfied, respondents/plaintiffs challenged the said judgment before the learned Additional District Judge, Shakargarh, District Narowal, who vide judgment dated 26th October, 2002 set aside the judgment of the trial Court and remanded the case for decision afresh. Against the remand order. Respondents/ plaintiffs preferred civil revision before the Lahore High Court, Lahore, which was allowed vide order dated 25th February, 2003 and Appellate Court was directed to decide the case pursuant to the direction made by it in the judgment. On post remanded proceedings, learned Appellate Court, vide judgment/decree dated 18th April, 2003 allowed the appeal filed by respondents/plaintiffs, as a result whereof the suit filed by them has been decreed. Petitioner/defendant feeling aggrieved filed civil revision before the High Court, which has been dismissed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Learned counsel appearing for petitioner, inter alia, contended that respondents/plaintiffs miserably failed to prove Talb-e-Muwathibat but the learned High Court has based its findings on the statements of P.W.1 (Muhammad Ilyas, Postman) and P.W.2 (Muhammad Akhtar, Registration Clerk) to draw conclusion that Talb-e-Ishhad was performed. According to him, a perusal of statement of P.W.1 (Muhammad Ilyas, Postman) reveals that he has not mentioned the dates on the envelopes which he intended to deliver to the petitioner/defendant, containing notice of Talb-e-Ishhad despite the fact that he has approached repeatedly to petitioner, as per his version, to deliver the notice. As such, according to him, on the basis of his statement, learned High Court may have not drawn the conclusion that as the notice of the Talb-e-Ishhad was served, therefore, it would be presumed that three days preceding to issuance of notice, Talb-e-Muwathibat was made by the respondents/plaintiffs.

4. After hearing learned counsel for the petitioner/defendant and having gone through the sections of P.W. and P.W.2 as wall as P.W.5, we grant leave to appeal, inter alia, to consider as to whether both the Talbs have been duly proved in accordance with law or not. Civil Miscellaneous Application No.1241-L of 2004.

Pending decision of the appeal, arising out of instant petition, parties are directed to maintain status quo, subject to notice. M.H./M-211/SC Leave granted.