2017 PLP 333 (MLD)

ABDUL LATIF KHAN, J.

Through this single judgment, I propose to dispose of C.R. No.221/2009 with C.M.No.176/2010, C.R.No.222/2009 with C.M.No.177/2010 and C.R.No.223/2009 as common question of law and facts is involved in all the matters.

2. The brief facts giving rise to the instant matters are that plaintiff Abdul Qayyum (hereinafter called as respondent/plaintiff) filed three suits for declaration and possession through pre-emption in respect of properties mentioned in detail in the plaints against defendants Haji Khazan Khan and others (hereinafter called as petitioners/defendants). The suits were contested by the petitioners/defendants by submitting their written statement. The learned trial Court framed issues arising out of the pleadings of the parties in all the three suits. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge, Kulachi dismissed the suits of respondent/plaintiff vide judgments and decrees dated 31.5.2007.

3. Aggrieved of the judgments and decrees dated 31.5.2007 of learned Civil Judge, Kulachi, the respondent/plaintiff preferred three appeals which were accepted by learned Additional District Judge-III, D.I.Khan on 11.5.2009, the impugned judgments and decrees dated 31.5.2007 were set aside and suits of the respondent/plaintiff were decreed as prayed for, hence the instant revision petitions and C.Ms.

4. Learned counsel for the petitioners/defendants contended that the respondent/plaintiff failed to perform the talbs in accordance with law, as there are material contradictions in performance of talbs, hence, the provisions of section 13 of the NWFP Pre-emption Act, 1987 have not been complied with. It was further contended that the respondent/plaintiff has no superior right of pre-emption as he claimed contiguity with the suit properties whereas the petitioners/defendants are co-sharers in the suit property and as such the petitioners/defendants excluded the respondent/plaintiff and decree granted by the appellate Court is not in accordance with law. He contended that the trial Court had properly dismissed the suits of the respondent/plaintiff but the appellate Court has wrongly reversed the findings of trial Court on presumptions and conjectures, which is not the requirement of law. It was also argued that the transaction was not pre-emptible, as the same was exchange and not sale but the appellate Court wrongly held it as sale without the aid of any evidence. He argued that the plea of respondent/plaintiff that the petitioners/defendants have sold the entire property through unregistered deeds and as such left with no ownership in the property, is not supported by evidence including revenue record, as the petitioners/defendants are still owners of the property as co-sharers and excluded the respondent/plaintiff by way of having superior right than the respondent/plaintiff. He contended that the connected cases have also been decided by this Court wherein suits of the respondent/plaintiff were dismissed in C.R.Nos.91, 92, 93, 69 and 70 decided on 18.3.2013.

5. As against that, learned counsel for the respondent/plaintiff contended that the petitioners/ defendants remained no more co-sharers in the suit property, as the property has been sold in favour of different persons vide unregistered agreements to sell and are inducted into possession and on the spot, the nature of the property has been changed by raising construction over the suit property by the purchasers. It was contended that suits of the respondent/plaintiff having right of pre-emption on the basis of contiguity, have been rightly decreed by the appellate Court while reversing the judgments of trial Court. He contended that the petitioners/defendants have sold some of the property during pendency of suit. He referred to the stamp papers, Ex.P.W.9/4 and Ex.P.W.9/5, and argued that the papers were purchased from the treasury/stamp vendor for this particular purpose and sold the same. He contended that Talbs were performed in accordance with law and there was no contradiction in the statements of P.Ws. Similarly the appellate Court has observed about the transaction as sale in the light of evidence available on file and colour of exchange has been given to the sale which was rightly held as pre-emptible by the appellate Court. It was also contended that the petitioner/defendant Haji Khazan Khan has deposed in his Court statement that he is attorney of the persons arrayed as defendants, out of whom, some are dead and for this purpose, separate C.M.Nos.176/2010 and 177/2010 have been moved in C.R. Nos.221/2009 and 222/2009 respectively for the dismissal of the petitions on this score alone and for initiating legal proceedings against the petitioner/defendant for cheating the Court. He prayed for dismissal of the instant revision petitions being meritless.

6. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.

7. The extract from Jamabandi for the year 1993- 94 available on file speaks about the co-ownership of petitioner/defendant Haji Khazan Khan as co-owner in the property. The disputed exchange mutations were attested in his favour by one Paigham Khan and in lieu thereof, he has transferred property in favour of petitioner/defendant No.2. The plea of the respondent/plaintiff regarding the superior right of pre-emption based upon contiguity to the suit property is no doubt apparent from the Aks Shajra Kistwar available on file but the status of petitioner/defendant Haji Khazan Khan is also apparent from the record which is at a higher pedestal than the respondent/plaintiff. The respondent/plaintiff claims that the petitioner/defendant Haji Khazan Khan had sold the property through unregistered agreements to sell in favour of different persons, arrayed as defendants and were inducted into possession of the suit property who have raised construction and are residing in their respective houses, constructed by them and as such the petitioner/ defendant remained no more co-owner in the suit property. These submissions of the respondent/plaintiff do not find support from the record, as in the revenue record, the name of the petitioner/defendant Haji Khazan Khan finds mention as co-owner. No deed executed on behalf of the petitioner/defendant in favour of any of the other petitioner/defendant or any other person has been brought on record to prove that the property has been sold by way of unregistered deeds. Even otherwise, the unregistered deed does not create any title and is a document to procure another document through Court of law.

8. So far as the possession is concerned, neither any evidence has been produced that the houses were constructed by the purchasers nor their possession has been proved in the houses, by displaying a notice to the general public that the property has been purchased by those persons. Mere the evidence of treasurer who has produced stamp papers, purchased by the petitioner/defendant Haji Khazan Khan, would not suggest that he has alienated his respective share out of the suit property. More important is the fact that if at all it is presumed that some of the property has been sold, to what extent and whether the petitioner/defendant remained no more co-owner in the property are the questions to be proved by the respondent/plaintiff, as it was his duty being prospective pre-emptor to prove to the hilt that the entire property has been sold out by the petitioner/defendant Haji Khazan Khan and he ceased to be a co-owner in the property. Even in that eventuality, the respondent/plaintiff can claim superior right against him, otherwise not. The evidence produced through PESCO employee, regarding the electricity connections given in the names of the occupants would not suggest that the property has been sold in their favour. The appellate Court has only focused upon the statement of PW-2, stamp vendor, from whom the petitioner/defendant had purchased few stamp papers, Ex.P.W.9/4 and Ex.P.W.9/5, and observed that it is safe to hold that the evidence of treasurer is sufficient to prove the sale, which is not in line with law. I am afraid as to how the appellate Court reached to the conclusion simply on the statement of treasurer, ignoring the vital document of title i.e. Jamabandi which has got the presumption of truth, though rebuttable, but in the instant case, there is no question of rebuttal as not questioned and the admitted documents have been ignored, keeping in view the weak evidence of stamp vendor. It is pertinent to note that none of the stamp paper executed between the petitioner/ defendant Haji Khazan Khan and any of the purchaser has been produced nor any serious effort has been made to request the trial Court for production of the same out of the possession of petitioners/defendants through the aid of Court. It is also pertinent to mention that no serious effort was made for spot inspection, though as per version of the learned counsel, application was moved for appointment of commission which was turned down by the trial Court, but the same was not challenged before higher forum and was satisfied with the order. The statement of Patwari Halqa is also pertinent in this respect who has deposed that the petitioner/defendant No.1 is clothed with the right of ownership whereas the respondent/plaintiff has no such right in the suit property. In such eventuality, the respondent/plaintiff cannot be held entitled for decree for possession through pre-emption due to lack of right of pre-emption and the appellate Court has wrongly observed to this effect.

9. So far as the nature of transaction is concerned, the respondent/plaintiff claimed that in fact sale took place, but colour of exchange was given to it in order to ward of his right of pre-emption. The appellate Court has reversed the findings of learned trial Court on this issue, basing upon the evidence of treasurer and observed that various stamp papers for alienation of suit property were purchased by the petitioner/defendant No.1 and the employee of PESCO who produced the record of electricity meters, apart from this, statement of Patwari has been referred and held that there was no need of exchange in question because petitioner/defendant Haji Khazan Khan remained no more owner of the property nor the question of better management arises in the matter, which is not the proper evaluation of evidence. The statements of both these P.Ws have already been discussed above, which have no nexus with the nature of transaction. The existence of better management to effect an exchange has not been dealt with by the appellate Court in proper perspective. There is no evidence on file to prove that colour of exchange was given to the transaction which was in fact sale, however, this Court is of the view that keeping in view the non-disclosure of cause of action on the part of respondent/plaintiff due to lack of right of pre-emption, the question of nature of transaction becomes immaterial and same is the case with the issue of talbs. Though the Courts below are at variance in respect of this issue, but in the light of findings on issue of right of pre-emption, this issue also becomes insignificant.

10. So far as C. M. Nos. 176/2010 and 177/2010 in C. R. Nos.221/2009 and 222/2009 respectively are concerned, the record is silent about the deceased petitioners nor an application has been moved to this effect before the Court. The main contestant petitioner/defendant is Haji Khazan Khan, against whom the suits for pre-emption have been filed. None of the legal heirs of alleged deceased has come forward to raise an objection to this effect. The C.Ms. are not supported by any proof, hence misconceived.

11. The learned appellate Court failed to appreciate the legal as well as factual position and arrived at a conclusion, not warranted by law. Resultantly, I, while dismissing C.M.Nos.176/2010 and 177/2010 in C.R.Nos.221/2009 and 222/2009 respectively, allow C.R.Nos.221/2009, 222/2009 and 223/2009, set aside the impugned judgments and decrees dated 11.5.2009 passed by the learned Additional District Judge-III, D.I.Khan and restore the judgments and decrees dated 31.5.2007 of learned Civil Judge, Kulachi whereby the suits of the respondent/plaintiff were dismissed. No order as to costs. ZC/323/P Revisions allowed.