2010 PLP 1087 (SCMR)

NASIR-UL-MULK, J.

This direct appeal has been filed by Abdul Latif, plaintiff/pre-emptor, against the judgment of the Lahore High Court in Civil Revision No.1776 of 2002 whereby the petition of the respondents, Dil Mir and others, vendees, was allowed, the judgment and decree of the Appellate Court was set aside and that of the trial Court dated 18-6-2001 restored, with the result that the pre-emption suit filed by the appellant was dismissed.

2. The trial Court had found that the appellant had failed to prove the making of Talb-e-Muwathibat as there were material discrepancies in the appellant's evidence regarding the time on which the Talb was supposedly made. The Court, however, held that the appellant had successfully proved the making of Talb-e-Ishhad. The Appellate Court, upon re-examining the evidence, held that the discrepancies were minor and of no significance consequent and thus decreed the appellant's suit. The High Court in its revisional jurisdiction reappraised the evidence and agreed with the conclusion drawn by the trial Court on the issue of Talb e-Muwathibat.

3. Mr. S.M. Masood, learned Senior Advocate Supreme Court appeared for the appellant and Mr. Muhammad Farooq Qureshi Chishti, learned Advocate Supreme Court represented the respondents.

4. The learned counsel for the appellant referred to the relevant parts of the evidence and argued that there was no apparent contradictions in the evidence of the plaintiff/appellant on the issue of Talb-e-Muwathibat and that it cannot be expected of the witnesses to remember the exact time of every event of the day on which the Talb was made. Referring to the impugned judgment, the learned counsel argued that the learned Judge in Chamber had erred in proceeding on the premise that 10/11 O'clock mentioned by the appellant in his evidence, as the time he visited P.W.3, Abdul Aziz, was late in the evening; that it was on this wrong assumption that the High Court held that the visit to the Patwari by the appellant was made some time after midnight. It was contended that the Talb-e-Muwathibat was made at day time and the reference of "Sham" in the plaint does not necessarily mean late evening. The learned counsel contended that the High Court travelled beyond its jurisdiction to reverse the findings of the Appellate Court on pure question of fact when there was no apparent misreading of evidence.

5. For the respondents it was argued that the omission of the exact time and date of the making of Talb-e-Muwathibat in the statement of the appellant/plaintiff was fatal to the pre-emption suit. Further that the contradictions mentioned by the High Court as well as the trial Court were not insignificant but material enough to show that Talb-e-Muwathibat was not made if it at all, by the appellant at the time and place mentioned by him in his plaint.

6. The sale of the suit-land measuring 26 Kanals and 17 Marlas, situated in Chak No.752/GB, Tehsil Kamalia, District Toba Tek Singh, was made by Rehmat Ali brother of the appellant/pre-emptor, in favour of respondents, Dil Mir and others, through mutation, attested on 29-8-1996. The appellant filed suit for pre-emption on 21-9-1996. In the plaint he mentioned that he made Talb-e-Muwathibat on 11-9-1996 when he was informed about the sale by Abdul Aziz, when he visited the house of the latter in the evening (Sham). At the time of making Talb-e-Muawthibat, one Abdul Hameed was also present in the house of Abdul Aziz. That thereafter the three of them went on their bicycles to the Halqa Patwari to obtain copy of the mutation; which was delivered to the appellant the following day. That all the three then went to respondent No.1/vendee and made an unsuccessful request to transfer the land to the petitioner. Consequently, notice of Talb-e-Ishhad was issued to the defendants.

7. The learned Judge-in-Chamber had mainly referred to the time given by each of the witnesses of Talb-e-Muawthibat as well as by the appellant in his testimony and in the plaint to conclude that the contradictions therein were so material as to reflect upon the veracity of the appellant's claim of having made Talb-e-Muawthibat in the presence of the two witnesses. It will, therefore, be appropriate to refer to the contradictions that were taken into account by the learned Judge. In his cross-examination the appellant mentioned 10/11 O'clock as the time he visited the house of Abdul Aziz, who, however, stated that the appellant visited his house after 12 O'clock. The other eye-witnesses of Talb-e-Muawthibat, Abdul Hameed (P.W.4) stated that the appellant's visit was at 12-1/2 O'clock. The visit, according to these timings, of the appellant to the house of Abdul Aziz, was some time between 10-00 a.m. and 2-00 p.m. P.W.3, when pressed in cross-examination, stated that he could not remember the exact time of the appellant's visit, it is wrong to expect that these witnesses, would have noted the exact time of the visit of the appellant or recorded the same somewhere in preparation for testimony in the Court. Furthermore the evidence of these witnesses were recorded in the year, 2000 regarding an event that had taken place about 3-1/2 years earlier. The difference in the timings given by the witnesses, was natural and would rather be a factor in support of their truthfulness. Furthermore, the learned Judge-in-Chamber had erred in holding that the 10/11 O'clock mentioned by the appellant, was late in the evening and therefore, the time mentioned by the other witnesses, was beyond midnight. These timings related to midday rather than midnight. The mention of the word "Sham" by the appellant in the plaint is also to be considered in the context that it is a vague term and its timing may vary according to individual perception.

8. The learned Judge-in-Chamber had in his revisional jurisdiction reversed the findings of the Appellate Court on facts. In view of the foregoing discussion, we are of the considered opinion that the findings of the Appellate Court in favour of the appellant on the issue of Talb-e-Muawthibat did not suffer from any misreading or non-reading of evidence so as to warrant interference in revisional jurisdiction. As a result, this appeal is allowed, the impugned judgment of the High Court is set aside and that of the Appellate Court restored. S.A.K./A-19/SC Appeal accepted.