2013 PLP 410 (MLD)

QAISER RASHID KHAN, J.

Aggrieved of the concurrent judgments and decrees dated 6-1-2004 and 13-4-2005 passed by the learned Civil Judge-V and learned District Judge Mansehra respectively, the petitioner/plaintiff, namely, Muhammad Maroof Khan, has questioned the same through the instant revision petition.

2. Essential facts of the case are that Muhammad Maroof Khan, petitioner/plaintiff, filed a suit for declaration through exercise of right of pre-emption and possession against the respondents/defendants, namely, Siraj-ul-Arifeen etc.; in respect of the land fully described in the plaint and mutated through Mutation No.3409 attested on 9-6-1998. He claimed superior right of pre-emption as against the respondents/ defendants on the basis of contiguity, immunities and appendages to the suit land. The plaintiff averred in the plaint that the actual price of the suit land was Rs.12,000, but in order to defeat his pre-emptive right, an exaggerated and inflated amount of Rs.50,000 was mentioned in the suit mutation.

3. The respondents/defendants contested the suit and filed written statement. The divergent pleadings of the parties gave rise to the framing of twelve issues including the relief. The learned trial Judge on scanning the record and considering the arguments of the learned counsel for the parties, dismissed the suit of the plaintiff which was also maintained in appeal, vide judgments and decrees mentioned above. Still feeling aggrieved, the petitioner/plaintiff has assailed the concurrent findings of the courts below through this revision petition.

4. Learned counsel for the petitioner/plaintiff vehemently criticized the impugned findings of the learned two courts below on the ground that the same are the result of misreading and non-reading of evidence available on record. He urged that the impugned findings of both the learned courts below are based on presumptions, surmises and conjecturers and are thus liable to be set aside. The learned counsel contended that the petitioner/plaintiff had successfully proved his case on the basis of cogent and reliable evidence but both the courts below have failed to appraise the same in its true perspective. He, therefore, submitted that both the learned lower courts have incorrectly appraised the evidence brought on record which needs to be rectified by this court through the instant petition.

5. On the other hand, learned counsel for the respondents/ defendants defended the impugned judgments and decrees of the learned lower courts on almost the same grounds enumerated therein.

6. Arguments heard and record perused.

7. Perusal of the record reveals that in para-2 of the plaint, the petitioner/plaintiff claims to have got knowledge on 9-6-1998 when the mutation in question was presented before the revenue officer/Tehsildar at Mental Hospital, Dhodhial, Mansehra for attestation as he was present there being lumberdar and he made Talb-e-Muwathibat in the 'Jalsa-e-Aam' in the presence of Ismail Shah, Tehsildar. However, he did not mention the time when he performed the said Talb. Similarly, while recording his statement as P.W.7, he stated in his examination-in-chief to have made the jumping demand at 'Jalsa-e-Aam' at patwar khana, but did not make even an oblique reference to "Mental Hospital, Dhodhial", a departure from his stance taken in the plaint. Moreover, he once again failed to mention the time when he made such demand. He stated that on 9-6-1998, he in his capacity as lumberdar of the village, went to the 'Jalsa-e-Aam' at patwar khana in connection with the attestation of mutations and that he was accompanied by Sultan Khan and when the suit Mutation No.3409 was presented for attestation, he expressed his intention to pre-empt the property but nowhere mentioned the place and time. Similarly, though Sultan Khan finds no mention in the plaint, but surfaced for the first time in the examination-in-chief recorded by the petitioner. This raises serious question marks about such improved statement of the petitioner. Though the disputed mutation is dated as 9-6-1998, but in his cross-examination the petitioner admitted as correct that he started performing the functions as lumberdar after the death of his father in 1999 and that prior to the said year, he had nothing to do with the functions of lumberdar. He further admitted as correct that prior to the year 1999, his father as lumberdar used to identify the mutations and the executants on the visit of the Tehsildar. Unwittingly though, but still he spilled the beans that he was not a lumberdar at the time of attestation of mutation on 9-6-1998 as his father was serving as a lumberdar till he died in 1999. Thus the alleged purpose of visiting the patwar khana also becomes highly doubtful. P.W.6 is the statement of Muhammad Sultan Khan who in a rather indifferent manner stated in his examination-in-chief that the petitioner performed talb-e-muwathibat in his presence at the time of the attestation of the mutation. However, he neither mentioned the date nor the time nor the place where the petitioner allegedly announced his intention to pre-empt the disputed property. Similarly, during his cross-examination, to a volley of questions, he replied that he did not remember as to whether the petitioner objected to and performed Talb viz. the mutation or "Tatimma Jaat'; that he did not remember whether objection was made by the petitioner at the time of attestation of mutation or prior to that; that he did not remember whether the petitioner had signed the mutation after recording his objections or not. It goes without saying that the foundation stone of a pre-emption suit is talb-e-muwathibat and if the same is not proved by the plaintiff, then the right of pre-emption ceases to exist. Right of pre-emption being a feeble right and the requirement of law is that its existence and enforcement must be strictly observed, which I am afraid is seriously lacking in the case of the petitioner.

8. P.W.1 Syed Mubarak Shah, petition writer in his examination-in-chief produced register petition writer for the year 1998 wherein at Serial No.579, the entry in respect of notice talb-e-Ishhad on behalf of the petitioner in the name of respondent was recorded. However, in cross-examination he admitted as correct that the entry at Serial No.579 is undated. He also admitted as correct that he neither knew the sender of the notice nor any of the witnesses of the notice. P.W.2 is the statement of post master Mehboob-ur-Rehman who in his cross-examination admitted as correct that the Registry No.90 was not delivered to the respondent. He also admitted as correct that the respondent was employed at Islamabad and that in case of the absence of the addressee, by writing a note on the registry, the same is kept as 'Amanat' till its final delivery to the addressee or else it is returned to the sender. Both the A/D cards (Exh.P.W.2/2) and receipt of Registry No.90 (Exh.P.W.2/3) bear the signature of Haroon ur Rashid, brother of the respondent meaning thereby that the notice of Talb-e-Ishhad was never received by the respondent himself. P.W.4 is the statement of Atta-ur-Rehman, witness to the notice Talb-e-Ishhad who during cross-examination termed a suggestion that he did not know petition writer Mubarak Shah as incorrect (cross-examination of Mubarak Shah referred wherein he admitted as correct that he neither knew the sender of the notice nor any of the witnesses). As the petitioner failed to prove the Talb-e-Muwathibat in the first hand and Talb-e-Ishhad on the other, therefore, there is no need to discuss the other aspects of the case though the same were also attended to by both the courts below in their impugned judgments.

9. Learned counsel for the petitioner failed to point out any misreading, non-reading of evidence, jurisdictional defect or legal infirmity in the impugned judgments and decrees so as to warrant interference therein.

10. Even otherwise, the concurrent findings of the courts below cannot be set at naught by this court in exercise of its revisioinal jurisdiction under section 115, C.P.C. unless it is established through overwhelming evidence available on record that the same are fanciful, erroneous, based on misreading/non-reading of material evidence or have resulted into grave miscarriage of justice in view of the dicta handed down by the honourable apex Court in the cases reported as 2000 SCMR 346, PLD 1994 Supreme Court 291 and PLD 2002 Supreme Court 293.

11. For the foregoing reasons, the revision petition being bereft of any merit is hereby dismissed leaving the parties to bear their own costs. SAK/372/P Revision dismissed.