2006 PLP 1349 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the judgments/orders dated 21-6-2003 and 24-4-2004 passed by the learned Civil Judge and the learned Additional District Judge, Hafizabad whereby suit of the petitioners for possession through pre-emption and their appeal were dismissed, respectively.

2. Succinctly, relevant facts are that the petitioners filed a suit for possession through pre-emption against the sale of suit-land in favour of the respondents effected through registered Sale-deed No.607 dated 18-11-1998, claiming their superior pre-emptive right being "Shafi Sharik", Shafi Khalit" and "Shafi Jar" quo the respondents who were pleaded to have kept the sale in graded secret. Petitioners further averred that they gained knowledge of sale in question ' on 3-3-1999 at about 12-00 noon through Muhammad Akhtar Javed in presence of Allah Ditta son of Muhammad Ameer and they instantly performed "Talb-i-Muwathibat" in the same "Majlis" and thereafter on 4-3-1999 performed "Talb-i-Ishhad" through notice remitted under registered cover acknowledgement due and then by filing the suit, fulfilled the requirement of "Talb-e-Khashumat".

3. Respondents being defendants in the suit contested the same by filing their written statement wherein they raised certain preliminary objections regarding estoppel, locus standi, improvement of suit property and maintainability of suit etc. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the suit after doing the needful, dismissed the suit of the petitioners vide his judgment and decree dated 21-6-2003.

4. Petitioners aggrieved of the decision of the trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same also failed on 24-4-2004. Petitioners, thereafter, filed instant revision petition and the respondents in response to notice by this Court, have appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioners had pleaded in their plaint that they gained knowledge of the sale on 3-3-1999 at 12-00 through Muhammad Akhtar Javed when they while sitting in the same "Majlis" expressed their intention of pre-empting the suit-land and thus, performed "Talb-i-Muwathibat", with all promptitude. The petitioners in order to prove their case, produced seven witnesses besides documentary evidence. Muhammad Ghafar (P.W.1) Postman/Record-keeper was produced to prove postal receipt Exh.P.1, showing dispatch of registered envelope but he was not the maker of the receipt an in absence of original record of the Post Office concerned, his deposition was of no help to the case of the petitioners especially when he admitted that the relevant record has been destroyed. Nazar Abbas Sargana, Advocate, P.W.2 was produced to prove notice of "Talb-i-Ishhad". According to this witness, he dictated notice of "Talb-i-Ishhad", which was signed by the petitioners and the witnesses. This witness further deposed that he got the notice dispatched through clerk.

6. The original notice of "Talb-i-Ishhad" alleged to have been served on the respondents was neither required to be produced through process of the Court nor the same was available for its confrontation to the scribe (P.W.2) or its witnesses. In absence of original notice of "Talb-i-Ishhad", the same could not be said to have been proved by producing copy thereof and that too; without seeking permission of the trial Court to lead secondary evidence.

7. P.W.3 Akhtar Javed is the informer who allegedly conveyed the information of sale to the petitioners whose statement regarding time, date and place of performance of "Talb-i-Muwathibat" by the petitioner on 3-3-1999 coincided with the depositions of P.W.4 and P.W.6 but the entire case built by the petitioners is pulled to the ground even by ignoring the material contradictions/discrepancies in the statement of P.Ws. Nos.4 and 6 already pointed out in the impugned judgments when the Jamabandi produced by the petitioner as Exh.P.7 is looked at. Exh.P.7 was undeniably issued by the Revenue Patwari on 23-2-1999 i.e. after the sale dated 18-11-1998, which was appended with the plaint. This copy of the Jamabandi was issued in the name of Allah Ditta, petitioner No.1/pre-emptor who is real paternal-uncle of the petitioners Nos.2 and 3 and the pre-emptors in the other suit and was allegedly present on 3-3-1999 at the time of performance of "Talb-i-Muwathibat". This Jamabandi was produced in both the suits, one by the petitioners and the other by Muhammad Daud and another which left no room to conclude that the petitioners were not aware of sale in question, at least on 23-2-1999 when this copy of the Revenue Record was got issued. Respondents while cross-examining, the one of the pre-emptors Sana Ullah who had appeared as P.W.7, specifically enquired about issuance of copies of the Revenue Record but he did not explain as to why the same was got issued through Allah Ditta on 23-2-1999. Similarly, it could not be denied that one Nusrat Ijaz, a co-sharer/relation of the petitioners filed a suit for permanent injunction on 4-7-1999 specifically detailing the sale-deed dated 18-11-1998 in para. No.2 of the plaint wherein the petitioners Nos.2 and 3 were arrayed as parties as defendants Nos.8 and

9. P.W.3 admitted in his cross-examination that Nusrat Ijaz who had filed the suit for permanent injunction, is his real brother which means that statement of P.W.3 regarding gaining of knowledge of sale on 3-3-1999 was. not correct. Both the documents Exh.P.7 and Exh. D. 3 proved beyond any shadow of doubt that the petitioners had gained knowledge of sale at least on 23-2-1999 but they did not perform Talb-i-Muwathibat at tnat time. rerrormance or the alleged "Talb-i-Ishhad" if calculated from the date of issuance of Exh.P.7, the same was not proved, as noted above but was also beyond the time prescribed by section 13 of the Punjab Pre-emption Act, 1913. Scan of evidence and judgments of the two Courts below revealed that lis was correctly concluded by them and the petitioner could not prove performance of "Talbs" according to Law and their pre-emptive right if any, stood extinguished by operation of law.

8. For the reasons noted above, none of the courts below committed any illegality/irregularity in absence of which no interference in revisional jurisdiction is permissible undef law and instant revision being meritless, is dismissed with no order as to costs. S.A.K./A-83/L Revision dismissed.