2007L4360 (PLP)

SH. AZMAT SAEED, J.

This Civil Revision is directed against the appellate judgment and decree dated 13-9-2006 whereby the appeal filed by the respondents against the judgment and decree dated 3-4-2006 was accepted.

2. Brief facts leading to the filing of this revision petition are that the respondents filed a suit for possession pre-empting the said dated 17-4-1998 in favour of the petitioners. The respondents are minors, who filed a suit through their fathers and natural guardians, wherein it had been contended that the fathers of the respondents received information about the sale on 22-4-1998 from Muhammad Asghar and Abdul Jabbar in whose presence Talb-i-Muwathibat was effected whereafter formal notice to Talb-i-Ishhad was issued to the petitioners on 23-4-1998. The present respondents entered appearance and contested the suit. On the divergent pleadings of the parties issues were framed and evidence led. Whereafter the trial Court dismissed the suit vide its judgment and decree dated 3-4-2006 holding that the respondents had been unable to prove Talb i-Muwathibat and Talb-i-Ishhad. Aggrieved the respondents filed an appeal, which was accepted vide the impugned appellate judgment and decree dated 13-9-2006.

3. Learned counsel for the parties have been heard and the record appended with this civil revision has also been perused.

4. It is contended by the learned counsel for the petitioners that the witnesses produced on behalf of the respondents had contradicted themselves and made inconsistent statements regarding the time of Talb-i-Muwathibat and had also failed to prove Talb-i-Ishhad as no body from the post office had been examined to prove the service of such notice.

5. Learned counsel for the respondents has controverted the contentions raised on behalf of the petitioners and stated that the judgment of the first appellate Court does not suffer from any illegality or material defect in the exercise of jurisdiction, hence, should not be interfered with in the revisional jurisdiction of this Court.

6. In pith and substance the dispute inter se the parties revolves around the fact as to whether the respondents had succeeded in proving Talb-i-Muwathibat and Talb-i-Ishhad. It was the case of the respondents that the requisite information of the sale in favour of the present petitioners was communicated to the fathers of the respondents by Muhammad Asghar and Abdul Jabbar whereupon they allegedly exercised Talb-i-Muwathibat. In support of their contentions the respondents produced P.W.1 and P.W.2 fathers of respondents and Muhammad Asghar and Abdul Jabbar as P.W.3 and P.W.4.

7. A perusal of statements of the aforesaid witnesses makes it clear and obvious that there is inconsistency. It is consistent case of P.W.2 and P.W.3 that the information qua mutation was conveyed in the evening whereupon the Talb-i-Muwathibat was alleged to have been effected. In view of the aforesaid it is stated by P.W.4 that he and P.W.3 went to the office of the Patwari at nine in the morning where they learnt about the sale whereafter they went to the house of the fathers of the respondents and informed them of the sale, thus as per his statement the information was conveyed and the Talb in question was effected in the morning rather than in the evening. There is also contradiction as to which of the P.W.3 or P.W.4 actually informed about the sale to P.W.1 and P.W.2. Three separate versions have come up on the record from the said witnesses. Similarly, there is a contradiction as to whether P.W.2 went to the office of the Patwari along with P.W.4 or joined him later. The aforesaid contradictions have been noted by the learned trial Court and in view thereof it concluded that the witnesses could not be relied upon and were disbelieved. In the consequence thereof the suit was dismissed. The appellate Court while accepting the said contradictions and inconsistencies- merely brushed aside the same on the sole ground that six years had lapsed between the event and the recording of the statements in the Court. I am afraid the contradictions in the aforesaid statements are too glaring to be ignored more particularly with reference as to whether Talb-i-Muwathiabat was exercised in the morning or evening. The aforesaid examined in the context of the other contradictions referred to the above, denudes the statements of the P.Ws. of any credibility. The learned counsel for the respondents has been unable to explain away the inconsistencies and contradictions, which are material to the facts in issue. In the circumstances, it is clear and obvious that the learned first appellate Court has erred in law by brushing aside the said inconsistencies, which are material in nature, hence the impugned appellate A judgment and decree cannot be sustained. In the circumstances, the impugned appellate judgment and decree is set aside and the judgment of the trial Court dismissing the suit of the respondent is hereby upheld. F.B./M-62/L Petition allowed.