2007 PLP 381 (YLR)

HAMID FAROOQ DURRANI, J.

The petitioner herein purchased a parcel of land measuring 1 Kanal, 1-1/2 Marla in Village Saradhna, Tehsil Haripur through Mutation No.1249 attested on 20-7-2000. The sale was pre-empted by the respondent through a suit, which was decreed by the learned Civil Judge-I, Haripur on 13-10-2005. The petitioner aggrieved from the judgment and decree of the learned trial Court filed an appeal before the learned Additional District Judge-I, Haripur, which also did not find favour and was dismissed on 28-9-2006. Resultantly, the decree in favour of the respondent/plaintiff was confirmed.

2. Learned counsel appearing for the petitioner, while strenuously impugning the judgments and decrees passed by the learned two Courts, mainly contended that the evidence of the petitioner regarding waiver of right of pre-emption by the respondent/plaintiff was not kept in consideration by the learned two Courts. In this view, the pleadings as well as the oral testimony brought forth by the petitioner proved beyond any doubt that the respondent/plaintiff had the knowledge of the sale in dispute much before the attestation of impugned mutation. In addition to the said fact it was also proved that as the plaintiff and the vendor were real brothers the factum of sale in question could not be kept out of knowledge of the pre-emptor before its finalization. It was further contended that the evidence regarding the waiver of his right of pre-emption by the respondent/plaintiff in terms that he could not afford to purchase the suit-land before it was offered for sale to the petitioner, was also apparent on the evidence but was not attended to by the learned two Courts.

3. It is seen on the record that the findings of learned two Courts on the points of competency of the suit, performance of requisite Talbs by the respondent in accordance with law, the market value of the disputed property and the superior right of pre-emption regarding the suit property resting in respondent/plaintiff are based on unshaken evidence. The issues and points for determination between the parties have been discussed in detail and findings have been returned thereon which are based on sound reasoning, therefore, do not warrant interference by this Court in revisional jurisdiction. As a matter of fact, the learned counsel appearing for the petitioner did not seriously question the said findings of the learned two Courts at the time of arguing the revision petition in hand.

4. It is found on the record that the witnesses produced by the petitioner/defendant on the point of waiver, in addition to his own statement recorded as D.W.1, contained major contradictions inter se which would logically result in dislodging the claim of the petitioner regarding the said waiver. It is noted that the petitioner, while appearing as D.W.1 had admitted that he at the relevant time was running a small shop at Mauza Tarnawa which was shared by his sons as well. It was further admitted that the witness Raja Rafique also had a shop in Mauza Saradhna who used to purchase merchandise for his shop from the petitioner. The said purchases by the witness were either against cash payment or on credit basis. Regarding D.W.3 it was stated by D.W.1 that in presence of the latter the respondent had showed his inability to purchase the suit-land when all of them were present in the shop of the petitioner. This averment of the petitioner, while examined in juxtaposition to the statements of D.W.2 Raja Muhammad Rafique and D.W.1 Faqar alias Faqri, would reveal that the material point as alleged by the petitioner regarding the presence of D.W.2 and D.W.3 at the time of denial by the respondent, was undone in the cross-examination. D.W.2 in his cross-examination had unequivocally admitted that the petitioner had a large wholesale business at Mauza Tarnawa. The said factum was also admitted by D.W.3 in his cross-examination in contrast to the averment of the petitioner regarding the nature and volume of his business at Tarnawa. This fact alone is sufficient to doubt the presence of D.W.2 and D.W.3 in the shop of the petitioner at the relevant time as no other relation between the petitioner, D.W.2 and D.W.3 except that of business terms, was alleged by the petitioner. In that respect the above noted contradictions would defeat the allegations of the petitioner regarding waiver on the part of respondent to purchase the suit-land before the finalization of impugned transaction in favour of the petitioner. It is also worth-mentioning that the petitioner, in his cross-examination, had clearly admitted the previous involvement of vendor and the plaintiff/pre-emptor in cross-criminal cases between them under sections 324/148./149, P.P.C. The allegation of petitioner regarding respondent's knowledge of impugned transaction before attestation of mutation would, in the circumstances, be under heavy clouds.

5. For what has been discussed above the revision petition in hand is found meritless and is, therefore, dismissed in limine. H.B.T./193/P Revision dismissed.