2016 PLP 1202 (YLR)

QAISER RASHID KHAN, J.

Through the instant revision petition, the petitioners have called in question the judgment and decree dated 16.5.2006 of the learned Civil Judge-III, D.I.Khan whereby pre-emption suit of the respondent/plaintiff was decreed against the petitioners/ defendants as well as the judgment and decree dated 12.7.2007 of the learned Additional District Judge-II, D.I. Khan, vide which the appeal of the petitioners/ defendants was partially allowed.

2. Relevant facts giving rise to the instant revision petition, in brief, are that respondent/plaintiff filed a suit for possession through pre-emption of land measuring three kanals situated in village Mandhra, Tehsil and District D.I.Khan against the petitioners/ defendants on the basis of superior right of pre-emption averring in the plaint that the original owner of the suit land was one Sheikh Abdullah who transferred the same through mutation No. 1165 dated 28.9.1995 in favour of petitioners/ defendants on payment of sale consideration of Rs.60,000/- and that respondent/plaintiff got knowledge of the alleged transaction through one Malik Mohammad Riaz on 13.11.1995 at 5 PM in the Baithaik of Malik Mohammad Riaz and there and then he declared his intention to pre-empt the suit sale and thereafter sent notices to petitioners/defendants through registered post duly attested by two witnesses namely Malik Mohammad Riaz son of Malik Hassu and Ghulam Faqir son of Ghulam Rasool and on refusal of the petitioners/defendants to accept the sale consideration and surrender the suit property, hence the suit.

3. The suit was contested by the petitioners/defendants by submitting their written statement. The learned trial Court framed issues from the divergent pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-III, D.I. Khan decreed the suit in favour of respondent/plaintiff vide judgment and decree dated 16.5.2006.

4. Aggrieved of the judgment and decree dated 16.5.2006, the petitioners/ defendants preferred an appeal. The learned Additional District Judge-II, D.I.Khan vide judgment and decree dated 12.7.2007 partially allowed the appeal, hence the instant revision petition by the petitioners/ defendants.

5. Arguments heard and record perused.

6. As narrated in the preceding paras, the respondent/plaintiff alleged in the plaint to have been informed about the suit mutation by one Mohammad Riaz in the Baithak of the latter and that is how he allegedly performed Talb-e-Muwathibat. He did not mention the presence of any other person while being informed by the said alleged informer. He appeared in the witness box as PW-6 and narrated the same details as averred in the plaint. He also disclosed about Malik Mohammad Riaz having left this world for his eternal abode. As such it is his statement alone through which he alleges the performance of Talb-e-Muwathibat on 13.11.1995 at 05-p.m. and that too, in the Baithak of deceased Malik Mohammad Riaz. It goes without saying that one of the most essential conditions for the purpose of Talb-e-Muwathibat is that it must be announced in a Majlis after receiving information about the sale transaction. Sans Majlis, there is no concept of Talb-e-Muwathibat. As such neither the constitution of the Majlis at the Baithak of deceased Malik Mohammad Riaz is proved nor the information given to him by the deceased about the sale transaction nor for that matter the alleged jumping demand made by the respondent/plaintiff on the eventful date, time and place.

7. After the performance of Talb-e-Muwathibat stands disproved, further discussion on the alleged performance of Talb-e-Ishhad loses its significance. However, it would be in the fitness of circumstances to hold a brief discussion on the same as well. The respondent/plaintiff alleged in his plaint as well as in his statement before the learned trial Court to have sent notices Talb-e-Ishhad to the petitioners/defendants duly signed/thumb impressed by two witnesses namely Malik Mohammad Riaz and Ghulam Faqir. Malik Mohammad Riaz being dead, only Ghulam Faqir, one of the witnesses of Talb-e-Ishhad turned up in the witness box as PW-7 and stated to have thumb impressed the notices Talb-e-Ishhad and that the other marginal witness Malik Mohammad Riaz was dead. However, he did not utter a single sentence about the deceased to have signed/thumb impressed the notices. As such, a shadow of doubt surrounds the notices Talb-e-Ishhad and by no count the said talb can be termed to have been proved by the respondent/plaintiff in accordance with law. Since both the sine qua non for the success of a pre-emption suit stood disproved, then the suit of the respondent/ plaintiff was bound to fail. However, both the learned Courts below escaped sight of the above stated legal position while decreeing the suit in favour of the respondent/plaintiff through their impugned findings and have thus committed grave illegality and material irregularity thereby causing miscarriage of justice.

8. For the foregoing reasons, the instant revision petition is allowed, the impugned judgments and decrees of both the learned Courts below are set aside and resultantly the suit of respondent/plaintiff is hereby dismissed with no order as to costs. ZC/367/P Revision allowed.