2007 PLP 27 (CLC)

MIAN SAQIB NISAR, J.

The appellant is the pre-emptor plaintiff, who has failed in his cause of pre-emption at both the forums below, on the issue of Talbs as also the superior right of pre-emption. There is concurrent finding of fact by the Courts, that the appellant has failed to prove the Talbs particularly Talb-i-Muwathibat. In this behalf, the view taken is that Daim, the plaintiff himself, has not appeared, whereas his attorney Bashir Ahmad has only appeared but the presence of Bashir at the time of Talb-i-Muwathibat is not proved on the record. It is also the finding of the Courts below, that the appellant is not the co-sharer of Khata No.142, wherefrom the land has been sold and he has failed to prove that the land belonging to the appellant is adjacent to the land sold, or there is a common source of irrigation etc.

2. Learned counsel for the appellant contends, that according to the judgment reported as Akbar Khan alias Saleem Mehmood Chehi v. Government of the Punjab 1999 SCMR 2713, the seller has to inform the would be pre-emptor as to the sale of the property, and if this is not so done, in that eventuality the right of pre-emption cannot be denied; this aspect of the matter has not been considered by the Courts below. It is also argued, that the two Courts in order to determine the issue of Talbs have tried to fish for the evidence and have not considered, that on the basis of preponderance thereof, Talb-i-Muwathibat stands proved on account of the statement of Bashir Ahmad/P.W.1, corroborated by Muhammad Afzal/P.W.3. It is also submitted, that the substantial compliance of the law has to be made in proving the Talbs, which is adequate compliance of section 13 of the Punjab Pre-emption Act, 1991. In support of his contentions, the counsel for the appellant has cited the judgments reported as Abdul Malik v. Muhammad Latif 1999 SCMR 717; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; he also submitted, that Exh.P.8 has been misconstrued by the two Courts below, and this document though relates to Ali Bakhsh but has been considered to be that of Peer Bakhsh.

3. Heard. As regards the second appeal is concerned, the principles are well-settled that this Court can only interfere, if the case squarely falls and comes within the purview of sections 100 and 101 of the Civil Procedure Code. It has not been shown, if the decisions of the Courts below are contrary to law; no misreading or non-reading of the evidence has been established, rather the Courts below have appreciated the evidence on the record and on the basis of that have come to the conclusion that Bashir was never present at the point of time, when Muhammad Afzal allegedly had disclosed the sale to Daim, the plaintiff. Even while appearing as a witness and attorney, Bashir has not stated that Afzal has told about the sale to Daim, rather he claims that it was disclosed to him. Afzal, the plaintiff's other important witness while appearing as P.W.3 has not given any date about the disclosure of the sale; these omissions and discrepancies, inter alia, pointed out in the decision of the Court below are based upon proper appreciation of the evidence, have been viewed by the Courts in proper legal perspective.

4. As regards the argument, that it is the duty of the seller to inform the would be pre-emptor about the sale of the property and the reliance placed upon the judgment reported as Akbar Khan alias- Saleem Mehmood Chehi v. Government of the Punjab 1999 SCMR 2713, it is held that this case does not pertain to the interpretation of the law of pre-emption as promulgated in the Province of Punjab, that it is not necessary under the statute, casting a duty upon the seller to inform the person who may be interested in pre-empting the sale, therefore, the above judgment on its own facts is distinguishable.

5. As regards the question about the preponderance of evidence and substantial compliance of law for the Talbs is concerned, there can be no cavil with the law laid down by the Honourable Supreme Court, but in this case the concurrent finding of the Courts below is, that the appellant has failed to prove the Talb-i-Muwathibat, which is a sine qua non for the exercise of his right of pre-emption. I have also considered, that Bashir's statement has not been corroborated by Muhammad Afzal; even Bashir has not stated; if Muhammad Afzal had disclosed to his father Daim about the sale, rather he asserts that it was divulged to him, therefore, such appreciation of evidence, when not shown to be the result of any error in reading of the evidence, cannot be interfered in the second appeal.

6. For the question, if the appellant is the co-sharer of the Khata, undoubtedly the sale has been made from Khata No.142, and at the time of the sale the appellant is not proved from any document to be the owner of the same Khata. About the submission, that the suit-land sale is adjacent or has a common passage or source of irrigation, this fact has not been proved through the statement of Bashir, the star-witness of the plaintiff; he has neither claimed the pre-emption right on this basis nor the plaintiff has produced any documentary evidence to prove this fact; even according to the Aks Shajra (Exh.P.4) placed on the record, the factum of the property being adjacent does not stand established.

7. In the light of above, I do not find any error in the judgments of the two Courts below calling for interference in this second appeal, which is hereby dismissed. As far as the application (C.M. No.Nil. entered vide Diary No.11760, dated 27-6-2006) for placing the documents on record as also to allow the same for reading as additional evidence, is concerned, I am not convinced if such documents are necessary for the determination of the matter. The applicant/appellant had the chance to bring these documents on the record firstly at the time of trial and even at the first stage of appeal, but this has not been done. Obviously, under the law a party to a litigation cannot be allowed to fill up the lacunas of his case at this later stage. I find this to be an attempt to fill up the lacuna, which is impermissible under the law, therefore, the application also stands dismissed. F.B./D-9/L Appeal dismissed.