2006 PLP 1201 (MLD)

JAWWAD S. KHAWAJA, J,

The case has been repeatedly called. None has appeared for the respondent although the name of his learned counsel duly appears in the cause list. The respondent is, therefore, proceeded against ex parte.

2. Khizar Hayat petitioner/defendant impugns the appellate decree dated 8-5-2000 whereby the decree of the learned trial Court dated 19-2-1998 was set aside and a suit filed by Ghulam Shabbir respondent/plaintiff seeking possession of the suit-land through pre-emption, was decreed.

3. The sole issue, relevant for the purpose of deciding this petition, Issue No.2 relating to talabs which was framed in the following terms: "Whether the plaintiff performed talabs according to law of pre-emption? OPP"

4. I have gone through the testimony of the P.Ws. in respect of the above issue and find the same to be discrepant and not credible. Furthermore, the learned appellate Court has seriously misread the A testimony of the P.Ws. In particular, it is worth-noting that Pervaiz Akhtar (P.W.2), who allegedly informed the respondent of the sale, deposed that he informed the respondent of the sale on 11-3-1996. The learned appellate Court, however, has noted that the said P.W.2 had stated that he informed the respondent/plaintiff of the sale on 26-12-1995. This is a clear misreading of evidence.

5. In addition to the above, the testimony of P.W.2, who was the key witness for the respondent/plaintiff, is contradictory in material particulars. In the very first sentence of his cross-examination, he deposed that he is a witness of the impugned mutation of Sale No.111 dated 26-12-1995. However, thereafter he contradicted himself by stating that he came to know of the sale on 10-3-1996 through Maqbool Patwari. This contradiction in the testimony of P.W.2 establishes that he cannot be relied upon as he is not a truthful witness.

6. The above discrepancies, which are fatal to the case of the respondent/plaintiff and were duly noted by the learned trial Court, unfortunately have been overlooked by the learned appellate Court. Furthermore, the learned appellate Court has not even considered the aspects of the evidence discussed and taken note of by the learned trial Court nor has the reasoning of the learned trial Court been met by the learned appellate Court while reversing its finding on Issue No.2.

7. In view of above discussion, I am not left in any doubt that the respondent/plaintiff had failed to prove the requisite talabs and, therefore, was liable to fail in his suit.

8. In the circumstances, the appellate decree dated 8-5-2000 is set aside and as a consequence, the decree of the learned trial Court dated 19-2-1998 is affirmed. H.B.T./1/Rev.?????????????????????????????????????????????????????????????????????????????????????? Revision accepted.