2010 PLP 969 (MLD)

ARSHAD MAHMOOD, J.

Alia and Naika sons of Saadly petitioners through this civil revision assail the concurrent dismissal of their suit for possession through pre-emption recorded vide judgments and decrees, dated 22-4-1992 and 22-3-1993 of the learned Civil Judge Sahiwal and learned Additional District Judge Sahiwal, respectively.

2. Facts of the ease in a narrow compass are that petitioners filed a suit for possession by way of pre-emption against the respondent in respect of one kanal of land sold by Shara through mutation, dated 8-11-1989. The suit was resisted by submitting written statement. The learned trial Court framed issues on the controversial pleadings of the parties. Evidence of the plaintiffs was recorded, however, at the time of recording statement of D.W.2., learned counsel for the petitioners made a statement that if Sajawal Khan lambardar makes a statement on oath at Holy Quran that at the time of purchase of land by the defendant/ respondent, the defendant present in the Court had asked the plaintiffs/ petitioners to purchase the land, suit of the petitioners/plaintiffs be dismissed. Learned trial Court after recording statement of Sajwal Khan lambardar on Holy Quran dismissed the suit of the plaintiffs/petitioners which was assailed unsuccessfully before the learned Additional District Judge. Hence this petition.

3. Learned counsel for the petitioners submits that both the Courts below exercised their jurisdiction illegally with material irregularities in deciding the case on the basis of statement of Sajwal Khan lambardar on Oath by ignoring that Sajwal Khan lambardar had not made the statement according to the terms of reference. He argued with vehemence that the petitioners/plaintiffs had asked the Lambardar that he should state on oath that defendant had asked the plaintiffs/petitioners to purchase the suit-land whereas the said lambardar had made a statement that he himself had asked the plaintiffs for the said purchase. He then argued that although the offer was made by the petitioners' counsel to decide the case on the basis of Special Oath to be made by Sajawal Khan Lambardar but this offer was not accepted by the defendant and could not materialize into an agreement. Learned counsel pressed hard that formalities for deciding the case on the basis of Special Oath were not observed and this important aspect slipped notice of the learned lower appellate Court as well.

4. On the other hand learned counsel for the below (sic) and argued that instead of construing the proceedings, dated 22-4-1992 verbatim intention of the parties has to be looked into and the learned Courts below rightly decided the matter on the basis of intention.

5. Heard learned counsel for the parties and record perused.

6. Perusal of record reveals that parties had taken divergent pleas in support of their respective claims. Issues were framed and parties were directed to adduce evidence. Plaintiffs/petitioners had concluded their entire evidence. Statement of D.W.1. had also been recorded. Respondent had taken a specific stance that the land was offered to the petitioner before its sale to respondent/defendant. When statement of D.W.2. was underway, learned counsel for the petitioner took a daring step of making an offer that if Sajawal Khan Lambardar makes a statement on Holy Quran that the vendor present in the Court had offered the land to the petitioner before its sale, the suit may be dismissed. The said Lambardar did make a statement on oath on the Holy Quran but stated that he himself had offered the property to the petitioner before its purchase by the vendee. Statement of learned counsel for the petitioner demanding oath and the resultant oath taken by Sajwal Khan Lambardar are reproduced here, in vernacular, for ready reference:-

7. There is no cavil to the proposition that the offer to abide by the oath of the opposite-party and its acceptance by the other party is in the nature of an agreement. But the question whether the party who offered can resile from it depends on the facts and circumstances of each case. Valuable rights of the petitioners were on stake, therefore, due care and caution had to be taken by the respondent, his witness Lambardar and the Court in responding to the offer but the statement was made and recorded in a hasty manner, therefore, to my mind though there was a valid contract between the parties yet consideration thereof as demanded was not paid. Sajawal Khan Lambardar had no authority to offer the land to the petitioner before its purchase by the vendee, therefore, the statement made by him that he himself had offered the property to the petitioners had no sanctity in the eyes of law. Resultantly, as the statement on oath demanded by the petitioner was never made either verbatim or in letter and spirit, therefore, the suit could not have been dismissed on the statement of Lambardar.

8. As a sequel of the above, this civil revision is allowed. Impugned judgment and decree passed by the courts below are set aside. Resultantly suit filed by the plaintiffs/petitioners shall be deemed pending before the learned trial Court. The learned trial Court shall proceed to record remaining evidence and decide the matter on merits in accordance with law. M.U.Y./A-308/L Revision allowed.