2003 PLP 1650 (YLR)

(2) Whether the plaintiff duly made the demand of pre-emption in accordance with law? OPP (3) Whether the ostensible sale price of Rs.4,00,000 was fixed in good faith and actually paid? OPD (4) If not so, what was the market value? OPP. S. (5) Whether the suit is for partial pre-emption? OPD. (6) Whether the plaintiff waived his right of pre-emption? OPD. (7) Whether the suit is wrongly valued for jurisdiction and court-fee. If so, its effect? OPD. (8) Whether the defendants paid the expenses of sale if so, how much and its effect? OPD (9) Relief.

3. During the trial, the petitioner plaintiff appeared as P.W.1 and produced Abdul Hamid as P.W.3. Ghulam Rasool P.W.2 turned hostile and was declared so by the Court. The plaintiff was allowed to cross -examine the said witness namely Ghulam Rasool. Notices Exhs.P.1 to P.3 postal receipts for registered notices Exhs. P.4 to P.6, registered envelops with acknowledgement receipts Exhs. P.7 to P.9, copies of Jamabandis Exhs. P.10 and P. 11, copies of sale-deed Exh.P.12 and mutations Exhs.P.13 to P.16 were produced in documentary evidence. In rebuttal, the respondents-vendees produced Muhammad Yaqoob, scribe of the agreement Exh.D.1, as D. W.1 Nazir Ahmad, marginal witness of agreement Exh.D-1 as D.W.2 and Mahboobur Rehman, one of the vendees/defendants, appeared as D.W.3.

4. The learned Civil Judge, Pasroor, under Issue No. 1 held that the petitioner was a co-sharer in Khata No. 142 but did not possess the same qualification with regard to Khatas Nos.4 and 6 of village Cheema, as such he had partial right of pre-emption and disposed of this issue. On Issue No.2, he gave finding against the petitioner and vide judgment and decree dated 18-5-1998 dismissed the suit of the petitioner. The appeal filed by the petitioner there against was also dismissed by the learned Additional District Judge, Pasroor, District Sialkot, vide his judgment and decree dated 10-7-1999.

5. The learned counsel for petitioner contends that the petitioner is Shafi Shareek and the petitioner has superior rig of pre-emption qua the disputed property especially when one of the defendants as D.W. admitted in cross-examination that the petitioner-plaintiff is co-sharer in the disputed property. The petitioner has challenged the finding on Issue No. 2 regarding fulfillment of requirement of Talbs under the law. He contends that Ghulam Rasool, P.W., had colluded with the vendees/defendants and was reluctant to depose in Court as a witness for the plaintiff therefore, the petitioner submitted an application on 27-10-1996 before the trial Court disclosing the fact that P.W.2 Ghulam Rasool had joined hands with the vendees and was not coming forth for evidence and he be summoned. Accordingly, the witness was summoned by the Court and during the evidence the witness was declared hostile and the petitioner was allowed to cross-examine him. According to the learned counsel, the statements of the plaintiff, Ghulam Rasool, P.W.2, and of Abdul Hameed P.W.3 have been misread by both the Courts below to record a finding on Issue No.2 against the petitioner.

6. Conversely, the learned the respondents-defendants contends that the petitioner has failed to prove Talb-e -Muathibat which is a precondition for making Talb-e-Ishhad therefore the finding of the trial Court as well as of the First Appellate Court on Issue No.2 has been correctly recorded on the basis of evidence. He further states that the concurrent recorded by the two Courts below basis of evidence cannot be interfered with by this Court under section 115, C.P.C. in exercise of its revisional jurisdiction.

7. The first question for determination in this case what is the evidentiary value of the statement of Ghulam Rasool, P.W.2, who was declared hostile by the plaintiff. To appreciate the real controversy, provisions of section 13(3) of the Punjab Pre-emption Act, 1991 are relevant, which say that the pre emptor shall make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover A.D. to the vendee confirming his intention to exercise the right of pre-emption, and Article 150 Qanun-e-Shahadat Order, 1984 (section 154 of the Evidence Act) which empower the Court in its discretion .to permit the person who calls a witness to put any question to him which might be put in dross-examination by the adverse party. Section 150 of the order is reproduced as under:-- "

150. Question by Party to his own witness.

The Court may, in its discretion permit the person who calls a witness to put any questions to him which might .be put in cross- examination by the adverse party." In the Full Bench case of Profulla Kumar Sarkar and others v. Emperor (AIR 1931 Calcutta 401) (Full Bench), while interpreting the above stated provisions of the statute it has been formulated by the Court that:-- "The fact that the witness is dealt with under section 154, Evidence Act, even when under that section he is cross- examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence or that the party who called and cross-examined him can take no advantage from any part of his evidence. The evidence of such a witness is not to be rejected either in whole or in part. It is not also to be rejected so far as it is in favour of the party calling the witness, nor is to be rejected so far as it is in favour of the opposite-party. The whole of the evidence so far as it affects both parties favourably or un-favourably must go to the jury for what it is worth. The above-referred case of Profulla Kumar Sarkar was relied in the case of M.D. Yakub Ali and 4 others v. The State (1969 DLC 579) and it was ruled that the statement of hostile witness not necessarily to be discarded altogether.

8. In order to attract the provisions of section 150, Qanun-e-Shahadat Order, 1984 it is necessary to establish that the witness is guilty of prevarication, or that he is inconsistent in his statement, or tries to suppress the truth or that he bears an animosity towards the party who calls him.

9. On the touchstone of the above provisions of section 13(3) of the Punjab Pre emption Act, 1991 and Article 150, Qanun-e- Shahadat Order and the case-law, it is to be seen whether some reliance can be placed on the statement of Ghulam Rasool, P.W.2. In the plaint, it is mentioned that transfer of the disputed land was made through sale-deed dated 15-8-1994. In para.5 of the plaint it is stated that the said sale-deed was kept secret and the petitioner came to know about the sale on 26-11-1994 and he at once in the same meeting made Talb-e-Muathibat. To prove Talb-e-Muathibat Muhammad Aslam plaintiff appeared as P.W.1. He stated that the sale was kept secret and it came to his knowledge after three months and 11 days; Abdul Hamid told him about the sale; when he came to, know about the sale he at once pronounced that he is a co-sharer in the suit land and this is his right to get the land and he would file a suit for pre-emption; when he got knowledge, at that time Ghulam Rasool, P.W., was also present. Said Ghulam Rasool, P.W.2, did not support the case of the petitioner-plaintiff. He deposed that he did not know when the land in question was sold. Both the Courts below have non-suited the petitioner on the statement of Ghulam Rasool. The question arises whether the plaintiff-petitioner could be non-suited because Ghulam Rasool, P.W.2 had joined hands with the respondents and he, could not be considered a 'truthful witness' as contemplated in section 13(3) of the Punjab Pre-emption Act, 1991. The requirement of the law is that the plaintiff before performance of Talb-e-Khasumat shall make Talb-e-Ishhad by sending a notice in writing attested by two truthful witnesses under registered cover A.D. to the vendee and this requirement/exercise was completed by the plaintiff-petitioner on 4-12-1994 when his counsel Mr. Muhammad Sarwar Qureshi drafted the notice Exhs.P.1 to P.3 and the same were attested by two marginal witnesses, namely Ghulam Rasool and Abdul Hameed. The notices were sent through registered post vide receipts Exh.P.2 to Exh.P.4 and A.D. Exh.P.7 to Exh.P.9. This is not the case of the vendee- respondent that the addresses on the postal envelops were not correct, but, to the contrary, they refused to C receive the same. Ghulam Rasool appeared in the witness-box on 19-11-1996. It means that at the time of drafting and sending the notices by the counsel and attestation by the two witnesses on 4-12-1994 there was no material before the Court that Ghulam Rasool was not a truthful witness. The Legislature in his wisdom has given importance and stress to the attestation by two truthful marginal witnesses. It is not necessary that two witnesses should depose in Court. It is the function of the Court to dig out the truth and for this purpose the provisions of Article 150, Qanun-e-Shahadat Order, 1984 have been inserted to cater the situation that the Court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. If the Court is powerless to dig out the truth then, to my mind, the provision of Article 150 of the Qanun-e- Shahadat Order would become redundant. The fact that Ghulam Rasool, P.W.2, had joined hands with the respondents was brought to the notice of the Court through an application dated 27-10-1996. Ghulam Rasool could have been believed if he had not gone to the office of the counsel to put his thumb impression on the notices Exh.P.1 to Exh.P.3. Said Ghulam Rasool categorically denied his presence at the time of execution of the notice and also stated that his thumb impression was obtained on the blank paper. If it was so, said Ghulam Rasool could have made a6 application to the trial Court to this effect, or would have lodged a complaint that his thumb-impression was obtained on a blank paper. From the application submitted by the petitioner on 27-10-1996 before the trial Court and the fact that Ghulam Rasool was declared hostile, it is proved beyond any shadow of doubt that the plaintiff-petitioner had performed Talb-e-Muathibat and Talb-e- Ishhad in presence of the witnesses, namely, Ghulam Rasool and Abdul Hamid. Both the Courts below have dismissed the suit of the petitioner on the ground that he himself had asserted that Ghulam Rasool is a truthful witness, but when he did not support the case of the petitioner it was argued that Ghulam Rasool has not deposed correctly therefore, the petitioner should suffer for it. This approach of both the Courts below is illegal under the law, because the fate of the case cannot be decided on the statements of the witnesses alone. It is the duty of the Court to dig out the truth from the evidence produced by the parties and decide the case in accordance with law. Simply because P.W.2 Ghulam Rasool has joined hands with the respondents-vendees is no ground to record e the finding against the petitioner by observing that the petitioner has not performed the Talb e-Muathibat and Talb-e-Ishhad.

10. The finding of the learned trial Court as well as of the learned First Appellate Court is result of complete misreading of evidence of Muhammad Aslam plaintiff and witnesses Ghulam Rasool and Abdul Hamid, P.Ws.2 and

3. Resultantly, the finding on Issue No.2 is reversed. On the basis of finding on Issues Nos. 1 and 2, the suit of the petitioner is liable to be decreed. As a result of my above discussion, this revision petition is accepted, the judgment and decree of the learned Civil Judge dated 18-5-1998 and that of the learned Additional District Judge dated 10-7-1999 are set aside. The suit filed by the petitioner is decreed. The petitioner is directed to deposit the remaining pre-emption money within two months in the trial Court, failing which the suit of the petitioner shall stand dismissed. M.B.A./M-1755/L Petition accepted.