P L D 2003 Lahore 413 (PLP)

‑‑‑‑S. 15‑‑‑Suit for pre‑emption‑‑‑Talbs‑‑‑Courts below after considering entire evidence concurrently found that Talbs had been duly performed‑‑ Such findings not suffering from misreading or non‑reading of evidence‑‑ High Court dismissed revision petition in circumstances. Rana Muhammad Sarwar for Petitioner. Mian Nisar Ahmad for Respondent. Date of hearing: 31st January, 2003. Vide registered sale‑deed dated 16‑6‑1992, the petitioner purchased the suit‑land mentioned in para. 1 of the plaint, for consideration of Rs.6,62,

500. On 15‑10‑1992 the respondent filed a suit for possession of the said land by pre‑emption. He stated that the land had in fact been sold for Rs.2,12,

500. He claimed superior rights of pre‑emption on the ground that he owns adjacent land and that there is common passage and common source of irrigation whereas the petitioner is not possessed of such right. Performance of Talb was also pleaded. In his written statement the petitioner insisted that he had paid ks.6,62,500 for the land. He also claimed registration expenses. He denied the superior rights of pre‑emption and other allegations in the plaint. Issues were framed. Evidence of the parties was recorded. The learned Trial Court found that the respondent has a superior right of pre‑emption on the ground that a common passage leads to both lands. The suit was decreed subject to deposit of a sum of Rs.6,62,

500. The petitioner filed a first appeal which was heard by a learned Additional District Judge, Gujranwala. The learned Additional District Judge affirmed the findings of the learned trial Court by observing that not only has the respondent common passage but also there is common source of irrigation for both lands. The appeal was accordingly dismissed on 24‑4‑1997.

2. Learned counsel for the petitioner contends that the learned trial Court had decided the matter of superior rights of pre‑emption by holding that the respondent shares a common passage. According to the learned counsel it is in the evidence that the passage was thoroughfare and this being so, the respondent could not claim a superior rights of pre‑emption. Regarding the matter of common source of irrigation, learned counsel contends that this point was decided against the respondent in the Trial Court judgment and without filing an appeal or cross‑objection, the said finding could not have been reversed by the learned Court of appeal. The learned counsel has also tried to argue that findings recorded by the learned Courts below in the matter of Talb are a result of misreading of the evidence on record. Learned counsel for the respondent, on the other hand, contends that the point being raised by the learned counsel for the petitioner qua the said passage was not set up in the pleadings and as such cannot be allowed to be raised at this stage. In the matter of objection of the learned counsel for the petitioner qua the common source of irrigation, he contends that he could have supported the judgment without filing cross‑objections in terms of Order XLI, Rule 22, C.P.C. Regarding the said third contention the learned counsel states that concurrent findings of the learned Courts below on the question of Talb are supported by the evidence on record and ought not to be interfered with in this civil revision.

3. I have gone through the records. I find that both the learned Courts below have primarily relied on the admission made by the petitioner or his witnesses while deciding the said question of superior rights of pre‑emption. I find that Muhammad Khan petitioner appeared as D.W.1 and in his examination‑in‑chief he simply asserted that he had paid ostensible price and that respondent had not made any Talb. He did not say a word about the superior rights of pre‑emption as claimed by the respondent. In cross examination he stated as follows:‑‑ Now the evidence being relied upon by the learned counsel for the petitioner in support of his first contention is following portion of the statement of Zak' Ullah P.W.4 at page 34 of the paper book:‑

4. Learned counsel for the petitioner relies upon the leading opinion of Pir Muhammad Karam Shah, J. in the case of, Government of N.‑W. F. P. v. Malik Said Kamal Shah (PLD 1986 SC 360). It may be noted here that this opinion was agreed to by Muhammad Taqi Usmani, J., as also Mr. Justice Muhammad Afzal Zullah, Chairman, Shariat Appellate Bench and the order of the Court was moulded in terms of the operative part of the judgment of Muhammad Taqi Usmani, J.

5. The Hon'ble Member of the Shariat Appellate Bench has discussed the matter at pages 406 to 408 of the said report and has concluded that the owner of the property at thoroughfare which runs through and through and is liable to be used by the public, cannot claim a superior rights of pre-emption qua the sale of common property abutting on the said thoroughfare. It has been ruled that it is not the user but the ownership in the passage which equips a person having share in the passage, with superior rights of pre emption being Shall Khalit. Learned counsel has further relied upon (ﻪﻴﺍﺪﻬﻠﺍﻥﻳﻋ) (Volume No.4) (page 10 of (ﻊﻓﺷﻟﺍﺏﺎﺘﻜ) as also judgment in the case of Aurangzeb and others v. Haji Abdul Rashid etc. (PLJ 1974 Pesh. 20) in support of his contention. To my mind, the said observations of Pir Muhammad Karam Shah, J., in Said Kamal Shah's case do bear out the said contention of the learned counsel. On the other hand, learned counsel for the respondent has not been able to cite any opinion to the contrary. He has, however, raised a technical objection. To my mind, the same is not tenable. This contention was duly raised and finds mention at page 5 of the trial Court judgment and page 6 of the judgment of the learned Appellate Court. The objection was rejected by the learned Additional District Judge on the ground that there is no rebuttal. To my mind, there was no need for the petitioner to rebut the admitted position stated clearly in the statement of said P.W.4 produced by the respondent as also in his own statement saying that the passage runs through and through. I, therefore, do hold that the respondent could not have claimed a superior right of pre‑emption on the proof of the mere fact that both the lands are situated on a thoroughfare.

6. I do not find the learned counsel for the petitioner to be on a strong footing in the matter of said second contention. I have already reproduced above the relevant pieces of evidence. It stands proved rather admitted on record that source of irrigation for both the lands is common outlet from the Canal which irrigates both the lands. This being so, learned Additional District Judge has not committed any legal error while reversing finding of the learned trial Court in the matter. So far as the objection of the learned counsel for the petitioner is concerned suffice it to say that the suit was decreed and the respondent was not seeking setting aside or modification of the decree. This being so, he was very much within his rights to support the said decree even on the ground decided against him by the learned trial Court. This is clearly stated in Order XLI, Rule 22, C.P.C. and the provision has been so interpreted by the superior Courts of the country. The said contention of the learned counsel for the petitioner is accordingly rejected.

7. So far as the said third contention in the matter of Talb is concerned, I find that both the learned Courts below have found that the Talbs had been duly performed. They have arrived at the said conclusion after discussing the entire evidence pertaining to the relevant Issue No.7‑A. Learned counsel for the petitioner has not been able to point any misreading or non‑reading of the evidence on record. I, therefore, affirm the said findings.

8. Fort all that has been discussed above, the civil revision is dismissed leaving the parties to bear their own costs. S.A.K./M‑1742/L Revision dismissed.