2006 PLP 2451 (YLR)

JAWWAD S. KHAWAJA, J.--Mariam Bibi, respondent/plaintiff filed a suit against the petitioners/defendants seeking possession of the suit property through pre-emption. The suit was dismissed by the learned trial Court; vide judgment and decree dated 4-10-2000. However, on appeal, the finding of the learned trial Court has been reversed and the respondent's suit has been decreed on 2-5-2002.

2. The sole issue which is dispositive of the case and on which arguments were confined by learned counsel for both sides is Issue No.2 relating to tables, which was framed by the learned trial Court in the following terms:-- "Whether the plaintiff had fulfilled the requirements of Talb-i-Mawasbat, Talb-i-Ishhad and Talb?i-Khusmat? OPP The learned trial Court, after considering the evidence led by the parties, came to the conclusion that Talb-i-Muwathibat had not been proved. The important consideration prevailing with the Court was that Muhammad Ali, who allegedly informed the respondent/plaintiff of the sale, had not been produced by the respondent. In fact Muhammad Ali appeared as D.W.3 and testified that he did not inform the respondent of the sale. The other informant of the sale, namely, Abdul Ghani, was also not produced but there is some material on the record to suggest that he had died.

3. In addition to the above, Muhammad Hussain, one of the petitioners, appeared as D.W.1 and also produced Mukhtar Ahmad the scribe as D. W.2. They both deposed that Mushtaq son of the respondent was present at the time of registration of the sale-deed in favour of the petitioners. Mushtaq, however, was not produced in the witness box by the respondent/plaintiff.

4. Learned counsel for the respondent argued that the presence of Mushtaq at the time of registration of the sale-deed could not be sufficient for imputing knowledge of the sale to the respondent. This argument is hard to accept particularly when the D. Ws. also deposed that Mushtaq had informed the respondent of the sale. It is also not believable that the respondent received information of the sale for the first time, through outsiders when her own son knew of the sale.

5. Unfortunately the learned appellate Court has not taken note of the material aspects of the case discussed above. It has, in a most cursory manner, disregarded the testimony of Muhammad Ali by holding that he was won over by the petitioners/ defendants due to his personal grudge. There is no evidence at all to show that there was any personal grudge between Muhammad Ali and the respondent/plaintiff. In fact no such suggestion was given to Muhammad Ali on this basis. It was only suggested to him that he had given false evidence after receiving money from the petitioners/defendants.

6. In the foregoing circumstances, I find that the impugned appellate decree is not in accordance with the evidence on record and is, therefore, liable to be set aside. This petition, as a consequence, is allowed and the appellate decree dated 2-5-2002 is set aside. The decree of the learned trial Court dated 4-10-2000 thus stands restored. F.B./M-169/L???????????? ???????????????????????????????????????????????????????????????????????? Petition allowed.