2007 PLP 20 (CLC)

SYED ASGHAR HAIDER, J.

This petition is directed against the judgment and decree, dated 26-4-2006 passed by the Additional District Judge, Mianwali, whereby the judgment and decree, dated 30-4-2004 passed by the Civil Judge, Mianwali, dismissing the suit was reversed.

2. The backdrop of the controversy is that the disputed property was owned by one Sher Muhammad, husband of respondent namely, Mst. Marrayam Bibi, he sold the land to one Muhammad Amir who later on sold the land to the petitioners on 25-9-1996, the respondent/plaintiff learnt about the sale on 1-1-1997 at 9 a.m. and made a declaration immediately submitting her superior right of pre-emption and sent notice of Talb-e-Ishhad as contemplated in law, thereafter she filed suit for possession through pre-emption. In the plaint, according to the respondent/plaintiff, the time, date and place was specifically mentioned. The suit was contested, of the divergent pleadings of the parties issues were framed, evidence was led and after contest the suit was decreed in favour of the respondent/plaintiff. An appeal was filed by the petitioners/defendants against the judgment of the trial Court, it was set aside and an additional issue was framed, according to the learned counsel for the respondent the trial Court exceeded jurisdiction by holding a de novo trial, although it was required only to give findings qua the additional issue, after trial the suit was dismissed aggrieved thereof the respondent/ plaintiff filed an appeal, which was accepted, judgment of the trial Court was reversed, the suit was decreed, pursuant to the decree the respondent has deposited the balance consideration of Rs.1,50,000 as directed.

3. Learned counsel for the petitioners contended that there are material discrepancies in the evidence tendered by the plaintiff, especially by P.W.1 the time span has been mentioned as 9/9-1/2 months and this is fatal to the cause as it is not in consonance with the scheme of things as mandated by section 13 of the Punjab Pre-emption Act, 1991, the evidence tendered is vague and in general terms, no specific date as contemplated by law has been mentioned. Learned counsel argued with vehemence that the three Talbs as contemplated by section 13 of the Punjab Pre-emption Act have to be fulfilled in an absolute manner and there cannot be any deviation. He has relied on the following precedents: Atiq-ur-Rehman through (real father) and another v. Muhammad Amin PLD 2006 SC 309; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Muhammad Sarwar and others v. Hakim Ali 2004 CLC 1679 and Muhammad Ilyas and 4 others v. Walayat Hussain 2006 YLR 1153. Contrarily, the learned counsel for the respondent has submitted that the plaintiff has fulfilled all the requirements of Talbs as contemplated by section 13 of the Punjab Pre-emption Act, the infirmities pointed out by the learned counsel are minor and there is no material discrepancy in the evidence tendered by the plaintiff, the plaintiff is an illiterate woman and therefore, the minor discrepancies in her statement are not significant. Learned counsel for the respondent has relied on Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410.

4. I have heard the learned counsel for the parties and also perused the judgments. Learned counsel for the petitioners has specifically adverted to the statement of P.W. and pointed out the first discrepancy qua time span, she stated: Urdu Line Page 22 The next discrepancy is qua P.W.3 who stated that he came to know of the sale through Munir Ullah, but during cross-examination he submitted that earlier to approaching the Patwari he had no knowledge of sale, these two discrepancies have been termed by the learned counsel for the petitioner as fatal to the cause of plaintiff. Learned counsel for the respondent contrarily has termed them as minor discrepancies and stated that Mianwali is a remote area, the plaintiff is illiterate woman, her witnesses are also uneducated and a lot of time had lapsed between the mutation and the date of recording of evidence, therefore, these discrepancies cannot be termed to be fatal to the cause of the respondent/plaintiff. The learned lower Appellate Court has looked into the material evidence brought on record by the parties and has stated that P.Ws. Nos.1 to 3 are unanimous on the point of duration, time and place of making of Talb-e-Muwathibat. After perusing the record it emerges that the conclusion arrived at by the lower Appellate Court is in consonance with the evidence led by the parties, by and enlarge there is unanimity in the evidence tendered and the witnesses qua time, place etc. they have withstood the test of cross-examination very well. The pith and substance of the arguments of the learned counsel for the petitioners Mr. Zia Ullah Khan Niazi, relate to terming minor discrepancies as fatal to the cause of the petitioners, this view point is not substantiated by record, the documentary evidence and the plaint squarely reflect that the evidence tendered by the plaintiff is fully in consonance with the pleadings. Learned counsel for the respondent has relied on Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410, these precedent fully support the case of the respondent. The judgments cited by the learned counsel for the petitioners are distinguishable, there is no misreading or non-reading of evidence, no material irregularity or illegality has been pointed out, resultantly, this petition has no merits and is dismissed. F.B./M-545/L Petition dismissed.