2009 PLP 568 (CLC)

MUHAMMAD ALAM KHAN, J.

Obaidullah Jan petitioner is aggrieved from the judgment and decree of learned Civil Judge, Tank, dated 28-3-2005 through which the pre-emption suit of the respondent was partly decreed to the extent of 20 Kanals, 2 Marlas on payment of sale consideration of Rs.36,160 against the petitioner, which was maintained by the learned Additional District Judge, Tank vide judgment and decree, dated 28-2-2007.

2. Briefly narrated, the facts of the case are that Ikramullah Khan respondent brought a pre-emption suit against Obaidullah Jan petitioner, the sale of which was incorporated in Mutation No.2175 attested on 25-1-2002 on the ground that the respondent is having a superior right of pre-emption regarding the land fully detailed in the head notes of the plaints which has been purchased by the petitioner i.e. the vendee-defendant and has incorporated an inflated amount in the suit mutation. It was asserted that the respondent-pre-emptor being co-sharer, contiguous owner and participator in appendages and immunities is entitled to the decree for pre-emption. This suit was registered as Suit No.7/1 decided on 28-3-2005 by the learned Civil Judge. The respondent had averred that he obtained the knowledge on Wednesday, the 30th day of January, 2002 at 4 p.m. through Aftab Alam and there and then he declared his intention to pre-empt the suit-land and subsequently, on 4-2-2002, issued notice Talb-e-Ishhad to the vendee-defendant.

3. The vendee-defendant-petitioner was summoned who submitted his detailed written statement in which the allegations contained in the plaint were hotly contested and the learned trial Court framed the following issues:

(1) Whether the plaintiff has got a cause of action? (2) Whether the plaintiff estopped to sue by his own conduct? (3) Whether the suit is time-barred? (4) Whether the plaintiff has a superior right of prior purchase of the land than the defendant? (5) What is the market value of the land? (6) Whether the plaintiff has performed all the Talbs as per pre-emption law? (7) Whether the plaintiff is entitled to the relief as prayed for? (8) Relief.

4. The parties produced their respective evidence as they wished to adduce and the learned trial Court, after hearing the learned counsel for the parties and perusing the data available on the record, passed a partial decree in favour of the respondent vide judgment and decree in Suit No.7/1 of 2002 decided on 28-2-2005. Being aggrieved, the petitioner filed an appeal against the said judgment which came for hearing before the learned Additional District Judge, Tank who, after hearing the learned counsel for the parties and perusing the record, dismissed the appeal of the petitioner vide judgment in R.C.A. No.69 of 2006 decided on 28-2-2007 and hence, the instant revision petition.

5. It was argued by Muhammad Yousaf Khan, learned counsel for the petitioner that the respondent had not proved the requisite demands as envisaged under section 13 of the N.-W.F.P. Pre-emption Act, 1987. It was also submitted that one of the marginal witnesses of the notice had died during the pendency of the suit. Neither permission for secondary evidence was obtained nor any person conversant with his handwriting was produced to prove the notice Talb-e-Ishhad. Reliance in this respect Was placed on the dicta handed down in the case of Akhtar Nawaz and others v. Muhammad Nazir and others 2005 YLR 77 and Javed Khan v. Ghulam Yasin 2004 CLC 1271 (Peshawar). On the strength of these rulings, it was contended that the learned two Courts below have fallen into an error by granting the decree in favour of the respondent.

6. Mr. Faridullah Khan Kundi, learned counsel for the respondent submitted that the respondent had led overwhelming evidence to prove the jumping demands the moment he came to know regarding the suit transaction. The name of the informer, date, time and place have been duly mentioned in the plaint as well as in the notice Talb-e-Ishhad. The scribing of the notice was duly proved by P.W. Saeed-ur-Rehman, Petition-Writer. Furthermore, the statement of Ikramullah respondent was recorded and he has proved the assertions contained in the plaint. Aftab Alam was produced as P.W.S. He is the informer who informed the respondent regarding the suit transaction and there and then, the respondent declared his intention to pre-empt the suit transaction. He also testified to the contents of the notice Talb-e-Ishhad Exh.P.W.3/2 and thus, it was submitted that the learned trial Court has rightly passed a decree in favour of the respondent. The learned counsel for both the parties restricted their arguments to Issue No.6 with respect to the performance of Islamic demands and no other issue was agitated.

7. I have given my anxious consideration to the facts and circumstances of the case and to the valuable arguments of learned counsel for the parties.

8. As regards notice Talb-e-Ishhad, which was duly exhibited on the record without any objection from the other side. In view of the judgment reported in the case of National Bank of Pakistan Bannu Branch v. Syed Mir 1987 CLC 1103 (Peshawar), no objection to its admissibility can be taken at this stage. The notice Talb-e-Ishhad has been duly proved by producing the scribe of the notice as well as one of the marginal witnesses who had testified to the contents of the notice and in this respect, the learned trial Court has recorded findings in favour of the respondent to which no exception can be taken. Minor discrepancies in the statements of the P.Ws. cannot be taken as a ground to non-suit the plaintiff-respondent when otherwise the case has been duly proved by producing overwhelming evidence and the statements of the witnesses have not been shattered in the cross-examination in view of the judgments handed down in the case of Abdul Qayyum through L.Rs. v. Mushke Alam and another 2001 SCMR 798 and Imtiaz Ahmad v. Haji Muhammad Ramzan and 2 others 1995 CLC 1857 (Peshawar).

9. Furthermore, the concurrent findings of facts have been recorded by the learned two Courts below which cannot be set at naught unless and until the same are proved to be perverse or erroneous in view of the dicta laid down in the case of Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmed v. Muhammad Siddique PLD 2002 SC 293.

10. The judgments and decrees of the two Courts below are based on sound reasoning, are strictly in accordance with law and the established principles of appreciation of evidence. No misreading or non-reading of evidence has been pointed out by learned counsel for the petitioner. Thus, the findings are not liable to be inferred with.

11. Resultantly, this civil revision fails which is dismissed with no order as to costs. H.B.T./32/P Revision dismissed.