1988 PLP 638 (MLD)

This revision petition under section 115 C.P.C. arises out of a suit for possession through pre‑emption filed by the respondent against the petitioner to pre‑empt the sale of land measuring 7 kanals 8 marlas effected through registered sale‑deed dated 3‑5‑1978. The petitioner‑vendee who was defendant in the suit resisted the same, inter alia, on the ground that the respondent‑plaintiff was estopped by his act and conduct to sue as he had waived his right. This issue was framed on the basis of preliminary objection No. 1 which reads as under‑‑‑ The learned trial Court after framing. the necessary issues recorded the evidence produced by the parties. The petitioner‑defendant in his evidence through Mehar Ali (D.W. 1) produced `Iqrarnama' (Ex. D. 1) subject to the objection of the respondent‑plaintiff. The objection was that the document could not be produced as the same was not mentioned in the list of reliance. The learned trial Court decreed the suit vide judgment and decree dated 10‑11‑1980 as the preferential right of the respondent to pre‑empt the land was not really in dispute he being the real brother of the vendors, and by observing that the factum of delivery of possession does not tantamount to refusal to exercise right of pre-emption. The appeal filed by the petitioner against the aforesaid decree was also dismissed by the learned Additional District Judge, Faisalabad, vide judgment and decree dated 13‑6‑1981. Finding on issue No. 2 was basically challenged before the Appellate Court which, however, upheld the view that prevailed with the learned trial Court on this issue. The learned Appellate Court was of the view that the petitioner‑defendant had miserably failed to discharge through his evidence onus of issue No. 2. 1‑Icncc this revision petition.

2. Learned counsel for the petitioner in support of the revision has argued that conduct after the sale may also amount to waiver of the right and that in view of the `Iqrarnama' (Ex. D. 1) it stood sufficiently established on record that the respondent had waived his right of pre‑emption. In order to examine the merit of this argument it is necessary to determine whether on factual plane the argument is available to the petitioner or not. In this respect, it is to be noticed that in the written statement any conduct subsequent to the sale and prior to the institution of the suit disentitling the A respondent from claiming the right of pre‑emption was not at all asserted. It is well‑settled that a fact which is not averred in the pleadings cannot be allowed to be proved. Be that as it may, the second aspect to be noticed is that the agreement dated 11‑9‑1978 was not even relied upon in the list of reliance what to 113 say of producing it alongwith the written statement as is required in case of the documents which are in possession of a defendant. This document was produced through Mehar Ali (D.W. 1) but he failed to verify the thumb‑impression of Muhammad Shafi. This document, as such, was not proved as against Muhammad Shafi, as none of the witnesses produced by the petitioner had proved any of the thumb‑impressions as that of Muhammad Shafi Thirdly, the factum of delivery of possession or even execution of this document was not put to Muhammad Aslam Special Attorney who appeared on behalf of Muhammad Shat respondent and who is also the son of the said respondent.

3. For all the above reasons, I have no alternative but to agree with the concurrent findings of the learned lower Courts that the onus of issue No. 2 was not discharged. I may also add that the alleged refusal to purchase the land and the so‑called offer made at the time of sale was also not established by producing any cogent and reliable evidence. These concurrent findings of fact cannot be revised in exercise of revisional jurisdiction. This petition, therefore, fails and is dismissed with costs. M.Y.H./3026/L Revision dismissed.