2013 PLP 1752 (YLR)

ROOH-UL-AMIN KHAN, J.

Through the instant revision petition filed under section 115, C.P.C., the petitioner, namely, Mst. Bano Mai, has questioned the judgment and decree dated 24-6-2009 passed by the learned Additional District Judge-I, D.I. Khan, vide which appeal of the respondents, namely, Muhammad Hussain etc.; against the judgment and decree dated 31-1-2009 passed by the learned Civil Judge-II D.I.Khan was accepted. Similarly, the petitioner has also filed another Civil Revision Petition bearing No.205 of 2009 against the judgment and decree of the same learned appellate court dated 24-6-2009 but passed in an another suit against the respondent Ranjoo. Since both these petitions are interconnected, therefore, this single judgment shall dispose of both these matters.

2. Briefly stated facts of both the cases are that Mst.Bano Mai, plaintiff/ petitioner, had filed two pre-emption suits, one against Muhammad Hussain etc.; defendants/respondents and the other against Ranjoo defendant/respondent, claiming her superior right of pre-emption qua the defendants in respect of the suit-land fully described in the plaints, on the basis of contiguity, co-sharership, immunities and appendages. Both the suits were hotly contested by the defendants/ respondents who filed written statements and out of the divergent pleadings of the parties, eight issues including the relief, were framed in each case. The parties produced their respective evidence which they wished to adduce and the learned trial Judge after hearing arguments of their learned counsel and scanning the record decreed both the suits of the plaintiff/petitioner against the defendants/respondents vide judgment and decree commonly dated 31-1-2009. Feeling aggrieved, the defendants assailed the aforesaid verdict of the learned trial Judge through two different appeals, which were heard and accepted by the learned Additional District Judge-I D.I. Khan vide judgment and decree dated 24-6-2009 by setting aside the aforesaid judgment and decree of the trial Court dated 31-1-2009. Hence these two revision petitions by the plaintiff/petitioner.

3. Learned counsel for the plaintiff/petitioner in both the cases vociferously argued that the impugned judgment and decree of the learned lower appellate court are against law, facts, admitted realities and result of misreading and non-reading of evidence brought on record, thus liable to be set at naught. He urged that the minor omissions in statements of the witnesses recorded after the lapse of sufficient time could not be made basis for non-suiting the plaintiff/pre-emptor. He contended that the witnesses being rustic villagers having advance age of more than seventy years are not supposed to be tape-recorder to remember each and every detail of the transaction. His argument was that the plaintiff/petitioner has successfully performed the three talbs in accordance with the requirements of law of pre-emption and the learned appellate court has failed to appraise and appreciate the evidence available on record in its true perspective. He lastly argued that the materials available on record were sufficient for decreeing the suit of the plaintiff/pre-emptor which were rightly appreciated by the learned trial Judge, but the appellate court has committed an illegality while non-suiting the petitioner through the impugned judgment and decree which are thus liable to be set aside and her suits merit to be decreed as prayed in the plaints.

4. Conversely, the learned counsel representing the defendants/respondents in both the suits defended the impugned judgments and decrees of the learned appellate court on the grounds, inter alia, that the plaintiff/pre-emptor has failed to prove her claim through cogent and tangible evidence brought on record. He contended that the plaintiff/petitioner could not prove the requirements of the three talbs in accordance with law, therefore, she was rightly non-suited by the learned Additional District Judge through the impugned judgments and decrees which need no interference.

5. Arguments heard and record perused.

6. Perusal of the record divulges that the plaintiffs/pre-emptor has alleged that she came to know about the sale transaction of the suit property on 29-4-1999 at 8-00 a.m. at her house situated at Jhouk Hamza Wali, Tehsil and District Bhakkar through her husband Sher Muhammad alias Sheru and she there and then made Talb-e-Muwathibat and she has repeated the same in evidence while appearing as P.W.5. However, she failed to mention the time and place of making Talb-e-Muwathibat in her examination-in-chief. On the one hand in the cross-examination, she stated that she being illiterate could not say about the date when her husband informed her about the sale transaction, but at the same she stated that she came to know about the sale on 29-4-1999 from her husband named above. In the evidence, she stated that when she came to know about the sale transaction through her husband, she made Talb-e-Muwatibat, but in cross-examination, she took somersault that when her husband informed her about the suit transaction, she became unhappy. She has further stated that when she came to know about the sale transaction, only she and her husband were present in the house, but subsequently stated that after becoming free from her house work, her husband came who informed her about the sale and thus she there and then made Talb-e-Muwathibat. She has further stated that her husband used to finish his work at digar vela, whereafter he come home. These are the material facts which create serious doubts about the making of Talb-e-Muwathibat. Likewise, her husband Sher Muhammad alias Sheru appearing in the witness box as P.W.6 stated in his examination-in-chief stated that on 29-4-1999 at 8-00 a.m. he came to his house and informed his wife about the sale transaction, at which she made Talb-e-Muwathibat. However, during cross-examination, he stated that when he came to know about the sale transaction through Malik Ahmad, whereafter he came to his house and informed his wife about the sale transaction at 8-00 hours where his sons were also present in the house. Thus, there are material contradictions in the statements of the plaintiff/petitioner (P.W.5) and her husband Sher Muhammad (P.W.6) which clearly show that she has not performed Talb-e-Muwathibat in accordance with law, but has made a concocted story in this respect. Similarly, as per contents of the plaint, the plaintiff/petitioner has sent the notice of Talb-e-Ishhad to the defendants/ respondents on 5-5-1999, in presence of Sher Muhammad alias Sheru and Gul Sher. In her examination-in-chief, the plaintiff stated that on 5-5-1999, she wrote notice of Talb-e-Ishhad in the district courts through a petition writer duly thumb-impressed by her witnesses Gul Sher and Sheru and she has not stated any thing regarding sending of notice to the defendants/ respondents. In cross-examination, the plaintiff stated that she has no relationship with Gul Sher, but Gul Sher has stated that she is his Masi.

7. No doubt, the petitioner has asserted in her plaint that notice Talb-e-Ishhad was sent to the respondent-vendee on 5-5-1999, but in her evidence she has failed to prove the same by producing the Postman as her witness. The respondent-defendant Ranjoo, has categorically denied the receipt of notice Talb-e-Ishhad in his written statement as well as in his court statement recorded as DW.1, in the following words:-- During cross-examination, he further elaborated that:-- In such state of affairs, it was imperative for the plaintiff/pre-emptor to prove performance of notice Talb-e-Ishhad, the second mandatory Talb through reliable cogent and trustworthy evidence and to produce the postman as a witness. Since respondent-vendee, has denied service of notice Talb-e-Ishhad in his written statement as well as in his statement before the court, and the pre-emptor has failed to produce the postman in support of her mere assertion in the plaint, so it can easily be gathered that in fact the petitioner has failed to perform the second mandatory Talb in accordance with the provisions of section 1 of the N.-W.F.P. Pre-emption Act, 1987. In this regard reliance may be placed on case titled, "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and case titled, "Bashir Ahmad v. Ghulam Rasool" (2011 SCMR 762). The glaring contradictions in the statements of the P.Ws. were sufficient for non-suiting the plaintiff/petitioner in both the suits. Therefore, the learned appellate court has rightly appraised the evidence while dismissing her suits through the impugned judgment and decrees which are well-founded and need no interference by this Court.

8. In wake of the above discussion, I find no merit in either of the two revision petitions which are accordingly dismissed with no order as to costs. AG/246/P Revision dismissed.