2004 PLP 1284 (YLR)

Date of hearing: 11th December, 2003. Brief facts of the case are that the property in dispute was purchased by respondents Nos.1 and 2 through sale Mutation No.775 dated 31‑7‑1995. Two suits for pre‑emption were filed against the said sale one by the present petitioner and the other by Muhammad Ramzan respondent No.3 on 5‑10‑1995. Both the suits were consolidated by the learned trial Court and after recording evidence of the parties, the learned trial Court vide consolidated judgment and decree dated 18‑5‑1998 decreed the suit filed by the present petitioner, while the suit filed by respondent No.3 was dismissed. Two appeals were filed against the said decree one by the vendees and the other by rival pre‑emptor respondent No.3. Through a consolidated judgment, the learned Appellate Court vide judgment and decree dated 14‑6‑1999 decreed both the suits of petitioner and respondent No.3. However, first decree was passed, in favour of respondent No.3 and on his failure to deposit the decretal amount, the second decree was passed in favour of the present petitioner. This appellate decree is being assailed through the instant civil revision.

2. Learned counsel for the petitioner contends that the sale in the instant case took place on 31‑7‑1995. In the plaint respondent No.3 mentioned the date of his knowledge of sale is 11‑9‑1995 and the date of issuance of notice Exhs.D.1 and D.2 is 17‑9‑1995. Respondent No.3, while appearing as his own witness as P.W.5 before the trial Court stated in his cross examination in the following words:‑‑ It is contended that from the above, it is evident that just after four days of the sale, the notice of 'Talb‑e‑Ishhad' was sent by respondent No.3 which is contrary to Exhs.D.1 and D.2. It is also evident that the suit was not filed after 8 days of the disputed sale mutation. It is thus concluded that performance of 'Talb‑e‑Muwathibat' and 'Talb‑e‑Ishhad' was not proved on the record.

3. Respondent Nos.1 and 2 were served for today's date of hearing. Nobody has turned up on their behalf. They are, therefore, proceeded against ex parte.

4. Learned counsel for the respondent No.3 contends that respondent No.3 is an illiterate villager, who could not comprehend, the exact date, therefore, the above quoted part of cross‑examination is a minor discrepancy, which should not affect the merits of the case. It is further argued that in examination‑in‑chief, he had fully detailed the date of knowledge of sale as 11‑9‑1995 and has categorically stated the performance of 'Talb‑e‑Muwathibat' and 'Talb‑e‑Ishhad'. Relies on PLD 1994 SC

162. It is further argued on the basis of 1989 S C M R 797 that substantial compliance of section 13 of the Punjab Pre emption Act, can entitle a pre‑emptor to decree and minor discrepancies should not non‑suit a pre‑emptor who otherwise has fully established his case.

5. I have considered the arguments of the learned counsel for the parties.

6. The portion of the cross examination highlighted by the learned counsel for the petitioner materially destroys the case of respondent No.3. This one line shows that neither 'Talb‑e‑Muwathibat' was performed as pleaded nor. 'Talb‑e‑Ishhad' which were the pre‑requisite for enforcing a pre‑emptive right under the Islamic law. It was stated by respondent No.3 that notice was issued four days after the sale while the sale in fact took place on 31‑7‑1995 and the notice Exhs.D.1 and D.2 were sent on 17‑9‑1995, which is factually incorrect. Likewise, it is stated that he filed suit after 8 days of the sale which is also incorrect as the suit was filed on 6‑10‑1995 much after the time stated by respondent No.3. Unfortunately this aspect of the case could not be attended by the learned Appellate Court.

7. For what has been stated above, this civil revision is allowed and the g judgment and decree passed by the learned Appellate Court dated, 14‑6‑1999 is set aside. No order as to costs.

8. Before parting with the judgment, it is observed that the decretal amount deposited by respondent No.2 was already ordered by this Court to be withdrawn by the vendees vide order dated 14‑9‑1999. If that amount already stands withdrawn by the vendees, the amount deposited by the present petitioner as decretal amount may be withdrawn by respondent No.3. M.H./B‑1/L Revision allowed.