2009 PLP 549 (MLD)

MAULVI ANWARUL HAQ, J.

Vide Mutation No.1928 attested on 10-1-2001 the respondent purchased the suit-land mentioned in the plaint for a consideration of Rs.2,70,

000. On 7-5-2001 the petitioner filed a suit for possession of the suit-land by pre-emption. According to him the land had in fact been sold for Rs.1,50,

000. He claimed to be co-sharer. Performance of talbs was pleaded. The petitioner in his written statement insisted that he had paid Rs.2,70,000 for the land and also Rs.13512 as sale expense. He denied the other allegations in the plaint. Following issues were framed by the learned trial Court:-- (1) Whether the suit is time-barred and the plaintiff is estopped to file this suit due to his earlier conduct? OPD (2) Whether the defendant made improvement over the suit-land to the tune of Rs.13512 and in case of decree he is entitled to receive the same? OPD (3) Whether the sale price of Rs.2,70,000 was fixed bona fide and actually paid by the defendant for the purchase of suit-land? OPD (4) If above issue No.3, is not proved then what was market value of the suit-land? OPP (5) Whether the plaintiff has made necessary talabs in accordance with law? OPP (6) Whether the plaintiff has superior rights of pre-emption qua the vendee/defendant? OPP. (7) Whether the plaintiff is entitled to the decree as prayed for? OPP (8) Relief. Evidence of the parties was recorded. Issue No.1 was answered in the negative. Under issue No.2 it was held that Rs.13512 were paid as sale expense. Under issue No.3 it was found that Rs.2,70,000 have been paid. Issue No.4 pertaining to market value of course was not decided after the said finding. It was also held that petitioner has a superior right of pre-emption being a co-sharer. The suit was found to be bad for partial pre-emption under issue No.6. Under issue No.5 it was found that talbs have not been made. The suit was accordingly dismissed on 16-6-2004. A first appeal filed by the petitioner was heard by a learned Additional District Judge, Mianwali. He reversed the finding recorded by the learned trial Court as to the suit being bad for partial partition but upheld other findings and dismissed the appeal on 14-12-2004.

2. Learned counsel for the petitioner contends that the matter of talb has been dealt with by the learned Courts below without reading the evidence on record and as such the impugned judgments are liable to be interfered with under section 115, C.P.C. Learned counsel for the respondent, on the other hand, while conceding that Talb-e-Muwathibat has been proved to be made validly, relies on the case of Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) to urge that in view of the denial of the respondent it was necessary to produce the postman.

3. I have gone through the copies of the record with the assistance of the learned counsel for the parties. It was stated in para.3 of the plaint that the petitioner came to know about the sale on 23-3-2001 through Abdul Razzaq while he went to attend the marriage of niece of the said person and that information was given at 10.00 a.m. He made Talb-e-Muwathibat in the presence of the said informer and Muhammad Akram Khan. The petitioner appeared as P.W. while informer and the said Muhammad Akram Khan appeared as P.W.2 and P.W.3 respectively and made statements in accordance with the said pleadings. Nothing derogatory turns out in the course of cross-examination. I, therefore, do find that sufficient pleadings were made and evidence was led accordingly to prove Talb-e-Muwathibat.

4. Learned counsel for the respondent, however, is on a stronger footing in the matter Talb-e-Ishhad. According to the plaint notice was served under registered cover on 2-4-2001. The postal receipt is Exh. P.1. Copy of the notice is mark "A" and contains the necessary narrative. However, Muhammad Younas respondent appeared as D.W.1 and stated in the witness box that a notice had not been sent to him. The dictum laid down in the said case of "Muhammad Bashir and others" by the Hon'ble Supreme Court fully supports the said contention of the learned counsel that in. view of the said denial on oath the presumption arising under Article 129 of the Qanun-e-Shahadat Order, 1984 and section 27 of the General Clauses Act, 1897 stands rebutted necessitating the production of the postam who had taken the notice to the addressee. The failure to do so is violative of the said judgment. No other point has been urged. Civil revision is accordingly dismissed but without any order as to costs. M.H./M-15/L Revision dismissed.