2017 PLP 404 (SCMR)

SH. AZMAT SAEED, J.

This Civil Petition for Leave to Appeal is directed against the judgment dated 28.11.2012, whereby a Regular Second Appeal bearing No.66 of 2010, filed by the Respondents before the learned Lahore High Court, was allowed and the judgments and decrees of the learned Trial Court as well as of the learned First Appellate Court, were set aside.

2. The brief facts necessary for adjudication of the lis at hand are that the Petitioner filed a Suit for Possession through Pre-emption against the present Respondents, which was contested. After recording of evidence, the learned Trial Court seized of the matter, decreed the said Suit vide judgment and decree dated 17.04.2009. Aggrieved, the respondents filed an Appeal, which was dismissed by the learned First Appellate Court vide judgment and decree dated 06.01.2010. In the above backdrop, the Respondents filed a Regular Second Appeal bearing No.66 of 2010 before the learned Lahore High Court, which was allowed vide impugned judgment dated 28.11.2012. As a consequence whereof, the judgments and decrees of the learned Trial Court as well as the learned First Appellate Court were set aside and the Suit filed by the present Petitioner, was dismissed. Hence, this Civil Petition for Leave to Appeal.

3. It is contended by the learned counsel for the Petitioner that the names of all the witnesses sought to be produced were not necessarily required to be mentioned in the plaint. In the instant case, the name of the informant was not mentioned in the plaint. Such absence was not fatal to the suit as has been held by way of the impugned judgment dated 28.11.2012. In support of his contentions, the learned counsel for the Petitioner relied upon the judgment of this Court, reported as Mian Pir Muhammad and another v. Faqir Muhammad through L. Rs. and others (PLD 2007 SC 302). It is further contended that the concurrent findings of fact of the two Courts below have been set aside by the learned Lahore High Court in the Regular Second Appeal without any valid reason.

4. The learned counsel for the Respondents has controverted the contentions raised on behalf of the Petitioner by contending that in the Suit for Possession through Pre-emption it is not only necessary that time, date and place of Talb-i-Muwathibat be set forth with particularity but also the source of information i.e. the name of the informant be mentioned in the plaint. In support of his contentions, the learned counsel for the Respondents relied upon the judgments of this Court, reported as Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), Mst. Imtiaz Begum and others v. Mst. Sultan Jan (2008 SCMR 1268) and Abdul Aziz v. Sheikh Fateh Muhammad (2007 SCMR 336). It is added that Talb-i-Muwathibat in the instant case has not proved to have been effected in accordance with law, as has been correctly held by the learned Lahore High Court by way of the impugned judgment dated 28.11.2012.

5. Heard. Available record perused.

6. It is now settled law that Talb-i-Muwathibat is a sine qua non for maintaining a Suit for Possession through Pre-emption. It is equally settled law that in the plaint, the time, date and place of Talb-i-Muwathibat must necessarily be pleaded along with the source of information of the sale pre-empted, as has been held by this Court in the judgments, reported as Muhammad Ismail (supra), Mst. Imtiaz Begum and others (supra) and Abdul Aziz (supra). Furthermore, in the instant case, not only the source of information of the sale is conspicuous by its absence in the plaint but also the witnesses produced by the Respondents/Defendants categorically stated that the Petitioner had the knowledge of the sale of the property in dispute on the date of such sale. Such portion of their statement has not been cross-examined. The Petitioner entered the witness box and during his cross-examination conceded that the sale of the property would ordinarily be known to all and sundry in the locality where the shop of the Petitioner was situated. The Petitioner also asserted that he had knowledge of such transaction on the date thereof which he stated to be 03.12.1994 (the sale actually took place on 30.11.1994).

7. In the above circumstances, the learned Lahore High Court concluded that the Petitioner has been unable to prove that the Talb-i-Muwathibat was effected in accordance with law within the requisite time specified therein. The conclusions drawn by the learned Lahore High Court appear to be a fair and reasonable assessment of the evidence available on the record while the learned Trial Court and the learned First Appellate Court have failed to appreciate the evidence in its true perspective. We are not persuaded to disagree with the conclusions of the learned High Court, in this behalf.

8. In view of the above, we find ourselves unable to interfere with the impugned judgment of the learned Lahore High Court, dated 28.11.2012, which does not suffer from any illegality. Consequently, this Civil Petition for Leave to Appeal, being without merit is dismissed and leave declined. MWA/M-82/SC Petition dismissed.