2004 PLP 1755 (MLD)

The petitioners, through the filing of the present revision petition, have called in question judgment and decree dated 31-7-2003, whereby the learned Additional District Judge accepted respondents' appeal and dismissed the suit of the petitioners, while setting aside the judgment and decree dated 24-11-2001, passed by the learned trial Court, through which it decreed the suit for possession, through pre-emption, filed by the predecessor-in-interest of the petitioners.

2. Briefly stated the facts of the case as discernible from the available record, are that the predecessor-in-interest of the petitioners filed a suit for possession through pre-emption, against the respondents, thereby contending that Muhammad Rafique sold the land in question, measuring 15 Kanals, 7 Marlas, to the respondents, through Mutation No.563 dated 17-12-1995 and that after attaining the knowledge about the said sale through Bahawal Bakhsh he announced in the presence of the witnesses that as he is co-owner in the Khewat, he therefore, will file a suit. It was further asserted in the plaint that the original plaintiff alongwith the witnesses approached the respondents and requested them to transfer the suit-land after receiving the amount of consideration, but they refused and thus on 31-12-1995, registered notice under section 13(3) of the Punjab Pre-emption Act have been sent to the respondents, but they did not accede to the request of the original plaintiff, hence the suit. The respondents/defendants resisted the suit by filing the written statement inter alia, pleading that the plaintiff had the knowledge about the attestation of mutation; that Muhammad Rafique asked the plaintiff to purchase the suit-land but he declined as he had no financial resources and that after the purchase of the questioned land, certain improvements were made. The learned trial Court, out of the divergent pleadings of the parties, framed seven issues, recorded the evidence of the parties and ultimately decreed the suit in favour of the petitioners vide judgment and decree dated 24-11-2001. The respondents assailed the said decree through filing the first appeal and die learned Additional District Judge accepted respondents' appeal and dismissed the suit of the petitioners, while setting aside the judgment and decree of the learned trial Court, vide its judgment and decree dated 31-7-2003, hence the present revision petition.

3. The learned counsel for the petitioners has contended that the learned Appellate Court, while reversing the judgment and decree of the learned trial Court, did not consider the postal receipts and acknowledgement dues, which documents were duly exhibited. He has further submitted that the impugned judgment is based on presumption. He has relied upon Khan Mir Daud Khan and others v. Mahrullah and others (PLD 2001 SC 67) and Ahmad Nawaz and others v. Mst. Sultan Bibi (2002 MLD 1184) to contend that in case of variance of judgments, this Court can undertake reappraisal of evidence in revision petition. Conversely the learned counsel for the respondents, while referring to the evidence on record and the impugned judgment, has submitted that the impugned judgment is well reasoned, has been rendered after due consideration of the oral as well as documentary evidence on record and that there is no misreading or non-reading of evidence on the part of the First Appellate Court. He has added that the impugned judgment is to be maintained.

4. In view of the arguments of the learned counsel for the parties I have examined the impugned judgment and perused the available record. The contention of the learned counsel that the documentary evidence has not been considered, is misconceived and ill-founded, as upon the perusal of paras 13, 14 and 15 of the impugned judgment, I find that the learned Appellate Court has duly taken into consideration the document on record, which were exhibited. In para. 15 of the impugned judgment, the learned Appellant Court discussed the postal receipts, acknowledgement dues and while adverting to the said document has rightly held that the signatures on the acknowledgement dues are not that of the appellant and that they have denied their signatures. I find from the record that the petitioners could not prove that the notices were in fact dispatched to the respondents, as according to the evidence on record, none of the petitioners accompanied the clerk of the learned Advocate, who reportedly dispatched the notices to the respondents, inasmuch as neither the statement of the learned Advocate nor his clerk was recorded. The learned Appellate Court has duly taken into consideration the said aspect of the case and rightly concluded that the production of the clerk as a witness was necessary in .Order to prove the dispatch of the notices. I have minutely examined the statement of P.W.1, Muhammad Shafi, retired Post Master of Chak No.230. He has categorically stated that he cannot say as to whether these four registered letters were sent to the defendants or that the receipts, Exh.P.1 to Exh.P.4 are of the registered letters. It would be appropriate to reproduce his examination-in-chief of P.W.1, which reads as follows:

5. I have examined the impugned judgment and find that- the learned Additional District Judge has considered every aspect of the case, appreciated the evidence on record in its true perspective and while taking into consideration the facts of the case and law on the subject, has rightly concluded that the petitioners did not make the necessary demands in accordance with law. The contention of the learned counsel of the petitioners that the documentary evidence has not been considered is of no, substance, as I find from para. 15 of the impugned judgment that the learned Additional District Judge, not only took into consideration the documentary evidence on record, but he also noticed the relevant law on the subject. It would be appropriate to reproduce para. 15 of the judgment, which reads as follows: "The receipt of these notices have been seriously disputed by the appellants. The respondents have produced the postal receipts and acknowledgement dues. The acknowledgement dues are not having the signatures of all the appellants except of Malik and Yousaf which too have been denied by the appellants. Muhammad Shafi P.W.1, the post master was not in a position to say that registries were made from his post office or not on the reason that the record was destroyed after two years. If it is not used against the respondents even then the question arises why the post man who had delivered the said notices to the appellants and obtained their signatures was not produced so as to say that notices were received by the appellants. It was held in Fateh Muhammad and 2 others v. Gulshair (2000 CLC 409) that mere sending of notice is not enough in the matter, receipt of such notice by the defendant has to be established. It was also held that the person who dispatched the notice his non-production is fatal to the pre-emptor and it will be presumed that no notice was sent to the other side. Non-production of the post man was also considered on infirmity and mere notice is not enough in the matter and the reliance was also made on Muhammad Rafiq v. Ghulam Murtaza (1998 MLD 292). To my mind, the learned Additional District Judge, after properly embarking upon all the issues, has rendered the reasoned judgment, which is not only in accordance with the record of the case but the same is also in consonance with the law on the subject.

6. I have also examined the judgment passed by the learned trial Court, whereby the suit of the petitioners was decreed. To my mind the learned trial Court failed to decide the issues in accordance with the evidence on record and the law on the subject and committed legal errors in arriving at the findings. Upon the comparison of two judgments, I .Am of the view that the judgment of the learned trial Court is not sustainable in law and the same was passed in complete oblivion of the facts of the case and law on the subject, which was rightly been reversed by the learned Appellate Court by substituting its own findings, which are completely in accordance with law. In view whereof, I am not inclined to unsettle the impugned judgment, which is well-reasoned as compared to the judgment of the learned trial Court.

7. In view of the case-law, cited by the learned counsel for the petitioners, I have examined and reappraised the evidence on record in juxta position with the findings of the learned First Appellate Court and is of the view that the findings of the learned Additional District Judge, are in accordance with the evidence on record. I find no reasons to disagree with the findings of the learned Additional District Judge. I am not persuaded to restore the judgment of the learned trial Court, which to my mind, has rightly been reversed by the learned lower Appellate Court.

8. In my view as the impugned judgment is neither contrary to the evidence on record nor in violation of the principle of administration of justice, thus the judgment of the learned Appellate Court should ordinarily be preferred. If any case is needed, judgments reported as Mir Muhammad alis Miral v. Ghulam Muhammad (PLD 1996 Karachi 202), Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 313) and Aasa v. Ibrahim (2000 CLC 500) can be referred.

9. In the above perspective, I have examined the impugned judgment and find that the same is legal, unexceptionable and apt to the facts and circumstance of the case and the learned First Appellate Court did not commit any illegality or material irregularity in passing the impugned judgment and I see no reasons to exercise the revisional jurisdiction of this Court in the matter. The impugned judgment is hereby maintained. Upshot of the above discussion is that the present revision petition is dismissed leaving the parties to bear their own costs. H.B.T./A-245/L Revision dismissed.