P L D 2009 Peshawar 88 (PLP)

MUHAMMAD ALAM KHAN, J.

Gul Amir Khan and others have brought the instant revision petition against Zahidullah Khan under section 115, C.P.C. challenging the judgment and decree of learned District Judge Lakki Marwat dated 24-6-2004 vide which, the appeal of the defendants/petitioners was dismissed and the judgment and decree dated 28-4-2004 passed by the learned Civil Judge 1st Class was maintained.

2. Briefly narrated facts of the case are that Zahidullah plaintiff/respondent, brought a suit for pre-emption regarding land fully detailed in the head notes of the plaint situated in village Gangu Nariwa, Tehsil and District Lakki Marwat which was sold vide three registered Sale-deeds Nos.46,47 and 48 dated 28-8-1997 and purchased by the defendants/petitioners. On summoning of the defendants, they submitted detailed written statement in which the allegations contained in the plaint were hotly contested. The learned trial Court out of the pleadings of the parties framed as many seven issues including the relief. The parties then produced their respective evidence as they', wished to adduce and the learned trial Court after taking into consideration the data available on record and after hearing the learned counsel for the parties decreed the suit of the plaintiff/respondent except Khata No.327 Khasra No.346 in which both the parties were held equally entitled and the same was ordered to be distributed between the parties equally. However, with respect to the remaining suit-land, decree was passed in favour of the plaintiff/respondent on deposit of sale consideration of Rs.20,000 after deducting 1/3rd already deposited till 25-5-2004 failing which the suit of the plaintiff/respondent was to stand dismissed. The defendant/vendee filed an appeal before the learned District Judge who after scanning the evidence on record and hearing the parties vide judgment and decree dated 24-6-2004 dismissed the appeal and hence the instant civil revisions petition in which the defendants/petitioners Gul Amir Khan etc. have challenged the concurrent findings recorded by the two Courts below.

3. Learned counsel for the petitioners/defendants contended that the suit-land was sold vide three registered deeds bearing Nos. 46 to 48 of the same date, i.e. 28-8-1997 upon which the different mutations of sale have been entered and attested. The plaintiff/respondent had brought only one suit against all the transactions and the same was not competent, as the cause of action in all the three transactions was different. It was also argued that the plaintiff/pre-emptor had not performed that Islamic demands within the stipulated statutory period as envisaged under section 13 of the N.-W.F.P. Pre-emption Act 1987. It was also submitted that the respondent/defendant had obtained the fard jamabandi from Patwari Halqa on 24-8-1997 and he had the knowledge of the suit transaction and Talb-e-Muwathibat having been performed on 3-9-1997 was not in accordance with law. Reliance in this respect was placed on the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 Supreme Court 315), Zafar Ali v. Zain-ul-Abidin (1992 SCMR page 1886) and Hayatullah Jan and others v. Jan Alam and others (2003 MLD 625).

4. Haji Zafar Iqbal Advocate, learned counsel for the respondent, submitted that although the plaintiff/respondent had obtained the fard jamabandi on 24-8-1997, but the sale through the sale-deed took place and completed on 28-8-1997. So, it was submitted that by then there was no sale in the field, so how can the knowledge of the pre-emption could be established. It was submitted that the transaction in the suit registered deeds were one and the same, only it was bifurcated, parties were the same, cause of action was the same and joint suit could be filed under the provisions of Order II, Rule 3, C.P.C. It was also argued that the Courts have recorded concurrent findings which cannot be set aside in revisional jurisdiction.

5. I have given my anxious consideration to the facts of the case and have scanned the record carefully with the valuable assistance of the learned counsel for the parties.

6. The evidence produced by the plaintiff/respondent with respect to the performance of Talb-e-Muwathibat and Talb-e-Ishhad is consistent, confidence inspiring and all the witnesses produced by the plaintiff/respondent, i.e. pre-emptor, are unanimous in their version with regard to the date, time and place of conveying' information to the plaintiff/respondent. They have been subjected to lengthy cross-examination and nothing has been squeezed from their mouths to shatter their testimony.

7. The argument of the learned counsel for the petitioners that the transactions were three in number and incorporated in three registered deeds of sale, the finding of one pre-emption suit was not warranted under the law, is also without substance, because when the suit transactions are between the same parties and on the same date, then oneness of the transactions, is discernible and a joint pre-emption suit can be filed regarding all the transaction in view of the dicta handed down in the case of Alam Khan and 3 others v. Pir Ghulam Nabi Shah and Company, reported in (1992 SCMR Page 2375). The argument of the learned counsel for the petitioner that the plaintiff/respondent had obtained Fard Jamabandi on 24-8-1997 and thus the suit was not within time, is also not convincing, as the suit sale transactions were registered on 28-8-1997 and the moment the knowledge of the suit sale was conveyed to the plaintiff/respondent, he there and then declared his intention to pre-empt the suit transaction and performed Talb-e-Muwathibat. Even if a sale prevails over a period of one year in its completion, but the starting point for filing of the pre-emption suit and performance of the Islamic demands as envisaged under section 13 of the N.-W.F.P. Pre-emption Act, 1987 will be from the date of attestation of mutation or registration of the sale-deed because prior to that no cause of action accrued to the plaintiff/pre-emptor as held in the dictum handed down in case of Taza Gul and others v. Haji Fazal Subhan reported in (2008 SCMR 431).

8. The learned two Courts below have scanned the evidence strictly in accordance-with the established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by the learned counsel for the petitioner which could warrant of this Court in the exercise of its revisional jurisdiction under section 115, C.P.C. Further more, the two Courts below have recorded concurrent findings of facts which cannot be set aside unless and until material irregularity is pointed out in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst. Janat Bibi and others (2000 SCMR 346), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 Supreme Court 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 Supreme Court 293).

9. In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed with no order as to costs. H.B.T./97/P Petition dismissed.