2006 PLP 1737 (MLD)

MIAN SAQIB NISAR, J.

The respondent being a pre-emptor, has lost his action in the Civil Court on account of his failure to prove the Talbs; but on appeal, he succeeded and the suit has been decreed. Hence this petition.

2. The sale in question of the land measuring 45 Kanals and 17 Marlas (the suit-land), was made by Gul Mir in favour of Muhammad Ishaq Shah petitioner/defendant on 17-3-1997 and mutation No.257, dated 17-3-1997 to the above fact, was duly sanctioned. The respondent/plaintiff on 27-5-1997, brought the suit for pre-emption claiming that, he learnt about the sale on 21-3-1997 through Adam Khan at 8.00 a.m. at his "Baithak", and made Talb-e-Muwathibat; thereafter, got the notice of Talb-e-Ishhad issued on 24-3-1997 but as the land was not transferred to him, resultantly, he brought the suit.

3. The learned trial Court framed the requisite issues and found the superior right vesting in favour of the respondent/plaintiff, but non-suited him on the issue of Talbs. As mentioned earlier, this finding has been reversed by the learned Appellate Court and the suit has been decreed holding that, the respondent/plaintiff has proved the Talbs.

4. Learned counsel for the petitioner contends that, the learned Court of appeal has misread the evidence on the record particularly the statement of the respondent/plaintiff, who appeared as P.W.2 and in his cross-examination has stated that: It is thus, argued that in fact, the assertion about the making of Talabs has been concocted by the clerk and is not the true facts deposed by the respondent/plaintiff. It is also argued that, P.W.2 and P.W.3 stated that the notice was drafted by the clerk, whereas, P. W .4 has stated that, it as by the counsel; this again is a serious contradiction; above all, P.W.3 Adam Khan, who is the solitary witness about the making of Talb-e-Muwathibat, is the cousin of the respondent/plaintiff and there is no corroboration to his evidence.

5. I have heard the learned counsel for the parties and find that, the above quoted statement of the respondent/plaintiff in his cross-examination clearly shows that the plaintiff had never known about the sale on 21-3-1997, as averred in the plaint and deposed by him in his statement, rather this date and other story about the Talb-e-Muwathibat, as conceded by the respondent/plaintiff, was made by the clerk of the counsel. Even otherwise, Adam Khan is closely related to the respondent/ plaintiff, and even has not been able to show his source, as to how he learnt about the sale, what date, time and from whom. There is no independent corroboration to his statement. In the light of above, as the learned Court of appeal has misconstrued the points mentioned above, therefore, the judgment and decree is based upon misreading and non-reading of the evidence, which cannot be sustained. Resultantly, by allowing this petition the judgment and decree of the learned Appellate Court is set aside and that of the learned Trial Court is upheld. M.I./M-143/L Revision accepted.