2013 PLP 1955 (YLR)

MUHAMMAD NOOR MESKANZAI, J.

Instant appeal is directed against the judgment and decree dated 9th December, 2006 passed by the Civil Judge, Chaman, whereby the suit filed by the appellant for possession through pre-emption was dismissed.

2. The brief facts, relevant for the disposal of instant appeal are that the appellant instituted a suit for possession through pre-emption against respondents in the Court of Civil Judge, Chaman. It was averred in the plaint that the plaintiff is owner in possession of land bearing Khewat No.110 and Khatooni No.113 situated at Mohal and Mouza Zar Karez, Tappa Killa Abdullah Tehsil Gulistan District Killa Abdullah. It was further averred that on 19th August, 2005, one Syed Siraj-ud-Din informed him that defendant No.1 has sold a portion of his property to defendants Nos.2 to

4. On coming to know about the sale transaction, the plaintiff without loss of time expressed his right of pre-emption and made Talb-e-Muwathibat in presence of one Syed Abdullah. According to plaintiff on the same day at about 5-00 p.m., he along with above referred two witnesses, went to the land in dispute and made Talb-e-Ishhad. The plaintiff claimed that he being the adjacent owner of the property as Shafi-i-Jar, has the legal right to pre-empt the property in dispute.

3. The suit was contested by the respondent/defendant No.1 by way of filing written statement whereby besides raising certain preliminary objections the claim of appellant was repudiated on merits.

4. The learned trial Court, out of the pleadings of the parties framed following issues:-- (1) Whether the suit is barred by limitation? OPD (2) Whether the suit is hit by the principle of res subjudice? OPD (3) Whether no cause of action has accrued to the plaintiff? OPD (4) Whether the plaintiff has fulfilled the requirements of pre-emption by performing of Talb-e-Muwathibat (sic) and Ishhad? OPP (5) Whether the plaintiff has got the right of pre-emption? OPP

5. Thereafter, the parties were directed to adduce evidence in support of their respective claims. The plaintiff produced two P.Ws., besides recording his own statement. Whereas, in rebuttal, the defendants did not produce any witness, however himself appeared in the witness box. The learned trial Court after hearing the parties and evaluating the evidence dismissed the suit vide judgment/decree referred to hereinabove. Learned counsel for the appellant stated that appellant has performed required talbs and has successfully established performance thereof through P.Ws. produced before the trial Court. The trial Court by misreading and non-reading of evidence illegally dismissed the suit. It was further stated that the law applicable on the subject has been misunderstood which resulted in dismissal of the suit filed by the plaintiff/appellant for unjustifiable reasons. Reliance was placed on 2004 CLC (Lahore) 610 and 2003 CLC (Lahore)

807. On the other hand, learned counsel for the respondents vehemently opposed the submissions made by the learned counsel for appellant. The learned counsel for respondents stated that perusal of statements of P.Ws. would reflect that the plaintiff/appellant has not performed the 'Talb-e-Muwathibat'. It was further contended that the plaintiff utterly failed to discharge the issues onus whereof was upon him. The learned trial Court after considering the entire material and taking into consideration all legal as well as factual aspects of the case rightly passed the judgment. The judgment impugned herein is not result of misreading and non-reading of evidence, as such, there was no option for the trial Court except to dismiss the suit.

6. We have considered the contentions put forth by the parties learned counsel and gone through the record of the case. It may be observed that in the instant case issue No.4 is crucial issue. The onus to prove the issue was on the plaintiff. The latter to prove the issue produced P.W. Abdullah, who deposed that on 19th August, 2005, he was present with plaintiff at his tube-well when Siraj-ud-Din informed the plaintiff about the sale transaction. According to the witness, the plaintiff made jumping demand, where after, they went to the disputed property where too the plaintiff besides referring to his first demand, expressed his second demand. It will not be out of place to mention here that the statement of this witness is not worth-reliance, because the witness admitted that the property in question was previously sold to Haji Abdul Ghani. The latter further sold out the property to one Abdullah. Besides, the perusal of impugned judgment reveals that the plaintiff failed to prove his claim by producing trustworthy, confidence-inspiring and tangible evidence. The learned counsel failed to pinpoint portion of the evidence, which has either been misread or misappreciated. On the contrary perusal of record reveals that there is no misreading and non-reading of evidence. The learned trial Court after taking into consideration the entire material available on record and dilating upon each and every aspect of the case passed an exhaustive judgment covering the entire controversy. Similarly, as far as issue No.5 is concerned, according to Islamic Law, the right of preemption is subject to a couple of conditions i.e. pre-sale and post-sale. The pre-sale conditions are enumerated in section 231 of the Muhammadan Law, which is reproduced hereinbelow:-- "

231. Who may claim pre-emption.

The following three classes of persons and no others are entitled to claim pre-emption, namely:-- (1) A co-sharer in the property, (Shafi-i-Sharik); (2) A participator in immunities and appendages, such as a right of way or a right to discharge water, (Shafi-i-Khalit) (3) Owners of adjoining immovable property, (Shafi-i-jar), but not their tenants, nor persons in possession of such property without any lawful title. [Baillie, 481]. A Waqif or mutwalli is not entitled to pre-empt, as the waqf property does not vest in him. The first class excludes the second, and the second excludes the third. But when there are two more pre-emptors belonging to the same class, they are entitled to equal shares of the property in respect of which the right is claimed [Baillie, 500] Exception.

The right of pre-emption on the third ground, viz, that of vicinage does not extend to estates of large magnitude, such as villages and zamindaris, but is confined to houses, gardens and small parcels of land. The right, however, may be claimed by a co-sharer. "

7. If the plaintiff does fall within the aforesaid three classes he/they is/are not competent to maintain a legal suit. Looking the case of plaintiff/appellant in this perspective, we have no doubt that the appellant/plaintiff does not fall within the category of none. Though in the plaint, the plaintiff claims to be a Shafi-i-Khalit and Shafi-i-jar but while recording his statement before the court, he mentioned the boundaries and was not found either Shafi-i-jar or Shafi-i-Khalit. So in view of the provisions of section 231 of the Muhammadan Law, he is not entitled and competent to file a suit for preemption; therefore, the post sale requisites are immaterial.

8. Besides above, we have gone through the judgments relied upon by the learned counsel for the appellant but since the facts of said cases are distinguishable, therefore, the same are not applicable in the instant case. Furthermore, in the light of judgment passed by the Apex Court, the judgment of the High Court relied upon by the learned counsel for the appellant loses its significance. Similarly, rests of the issues have rightly been resolved by the trial Court after proper appreciation of evidence.

9. To sum-up the discussion, we are confident to hold that there is no mis-reading and non-reading of evidence nor for that matter there is any mis-appreciation of facts by the trial Court, therefore, we do not see any plausible reason to interfere with a judgment which does not suffer from any illegality, irregularity or perversity. Resultantly the appeal having no merits is dismissed with no order as to costs. Decree sheet be drawn. MH/54/Q Appeal dismissed.