2016 PLP 1 (YLRN)

WAQAR AHMAD SETH, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 12.06.2008, whereby Additional District Judge-II, Manasehra dismissed the appeal of petitioner and maintained the judgment and decree of trial Court dated 19-03-2007.

2. Brief facts as per content of petition are that the petitioner filed a suit for possession through pre-emption regarding property fully described in the heading of the plaint against the respondent. The respondent appeared and contested the suit by filing written statement. The learned trial Court after recording pro and contra evidence and hearing the parties dismissed the suit on 19.03.2007. Feeling dissatisfied, the petitioner preferred appeal and learned appellate court after hearing the parties dismissed the same on 12.06.2008, hence, the instant petition.

3. Arguments heard and record perused.

4. A perusal of record would reveal that petitioner/plaintiff having superior right of pre-emption has instituted a suit for pre-emption against the respondent/ defendant. The superior rights of petitioner are apparent from Ex.PW1/1, according to which, the father of petitioner was a co-owner/co-sharer in the suit property and after his death his legacy devolved upon his legal heirs including the plaintiff through inheritance Mutation No.1096 dated 22.11.2005. Khasra Girdawari Ex.PW1/2 shows that the plaintiff is Shaffi Khalit in the suit property whereas the respondent does not figure any where and has no such qualification. The devolution of property takes place through inheritance immediately without any other intervention, thus, the decision on issue No.6 of appellate court is set-aside whereas that of trial Court, being legal is restored, while placing reliance on PLD 1990 SC 1(o).

5. The respondent has developed a story in his evidence, which is alien to the pleadings, i.e. her written statement. In the evidence of the respondent it has been alleged and contended that petitioner had the prior knowledge of the sale transaction but no such plea or defence has been taken by her while submitting the written statement. In this respect law is very much clear and relevant is Order VIII, rule 2, C.P.C. The plea not raised in the written statement could not be allowed to raise subsequently. In the case of Bashir Ahmad Khan and 3 others v. NWFP through Secretary and others reported as 1989 CLC 1671, it has been held as under:-- (a) O.VIII, R.5

Written statement

Denial of facts alleged in plaint

Mode of denial

Allegation of fact in plaint at the fist first instance requires specific denial thereof or such denial might be reflected by necessary implication or same may simply be not admitted in the written statement, in absence whereof statement of fact in plaint would be taken to have been admitted

Plaintiff alleged in plaint to be the sole proprietor or firm, a fact not specifically denied in written statement would imply its admission of fact . (b) O.VI, R.1

Pleadings

Points of law and fact to be raised in pleadings

Parties cannot be taken by surprise by taking such point of fact and law that had not been incorporated in the pleadings

Party not to be allowed to go out of its pleadings and cause prejudice to the opposite party by allowing such surprise during the proceedings .

6. Further, the Apex Court in case of Muhammad Rafiq and others v. Muhammad Ali and others reported as 2004 SCMR 704(b), held as under:

O.VIII, R.2

Plea not raised in written statement

Effect

Defendant could not be allowed to set up a plea, which had never been pleaded through written statement.

7. Hence, the evidence so recorded by respondent, in the absence of plea in written statement, has no legal value. However, if the same is evaluated the same is contradictory as well.

8. Even otherwise, the defence of the respondent is based on waiver as according to the statements of DWs on record the petitioner was in the knowledge of sale and even he was offered to purchase the property in dispute. There is nothing on record that vendor had mentioned the sale price or there was any agreement to sell before the offer. According to paragraphs 242 and 243 of Mulla s Mohammedan Law, Pakistan Edition (1983) are self explanatory. The right of pre-emption is not lost by refusal to buy before sale or even by previous notice to sale, prior to actual sale. The pre-emptor could not be deemed to have waived off his right when there was an offer in general terms by vendee or even vendor of his intention to sell property to a stranger. In the instant case neither any notice to sell is on record nor any fix amount has been given by the vendor DW-1, thus, mere oral assertion of the vendor in such behalf is not sufficient to saddle the pre-emptor with knowledge of sale transaction for which corroborative evidence is required to dislodge a claimant of his statutory right. In the case of Masood Anwar v. Karim Bakhsh reported as 2004 CLC 1692(d), held as under:

Ss.6 & 13

Pre-emption suit

Waiver

Waiver was an intentional relinquishment of a known right of positive act, conduct or omission indicating an inference of abandonment/relinquishment/acquiescence

To deprive a person of any legal right that he possessed, there must be clear and cogent evidence on the record justifying that course

Mere oral statement of a few witnesses deposing to certain circumstances from which it could be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that he had positively relinquished the enforcement of his right .

9. The plea of respondent that the petitioner convened the jirga could not be substantiated due to non-production of one Ghulam Sarwar, who conducted the jirga, in the witness box.

10. So far as performance of talbs by the petitioners is concerned, it is the presumption of the Courts below that real brother of petitioner must had informed his brother about the sale on the same date of sale i.e. 9.11.2005, whereas it is in the evidence that petitioner got the knowledge of sale on 11.11.2005 at 04.00 p.m. in Rafaqat Medical Store through informer Aurangzeb and he there and then performed talb-e-muwathibat and subsequently sent notice talb-e-ishhad by producing PW-4, booking clerk of the post office was produced as well. Ex.PW4/1 is the postal receipt. The respondent has not filed any appeal or cross-objection against the said issue, hence, the same has become final. The respondent has purchased the suit property for a sale consideration of Rs.60,00,000/- through registered sale-deed and she has also paid the requisite taxes of Government department, therefore, the sale consideration mentioned in the deed being genuine one is determined as sale consideration of the suit land.

11. The judgments and decrees drawn by both the courts below are found based on non-reading and misreading of material evidence on record and the law on the subject, hence, set aside. The suit of petitioner stands decreed on payment of Rs.6,00,

000. The petitioner is directed to deposit the remaining pre-emption amount before the trial Court within thirty days failing which his suit shall stand dismissed.

12. In view of the above, the revision petition stands allowed as prayed for. No order as to costs. ZC/508/P Revision allowed.