P L D 2006 Lahore 267 (PLP)

MUHAMMAD MUZAMMAL KHAN, J.

Instant civil revision assailed the appellate judgment/decree dated 17-1-2000 passed by the learned Additional District Judge, Gujrat, whereby appeal of respondent No.1 was accepted and the suit for possession through pre-emption filed by the petitioner was dismissed, with costs.

2. Succinctly, relevant facts are that one Allah Ditta husband of respondent No.1 being owner of 34 Kanals, 4 Marlas of land gifted the same in favour of his wife (respondent No.1) through Mutation No.6325 dated 29-3-1997. Petitioner asserting himself to be a co-sharer in the Khata from where the land was alienated, filed a suit for possession through pre-emption, claiming that suit property was in fact sold for a consideration of Rs.50,000 but the same was disguised as gift in order to defeat his pre-emptive right. Petitioner further pleaded that he came to know of the sale on 7-5-1997 at 10-00 a.m. when he was sitting in his house by one Barkat Ali in presence of the named witnesses when heinstantly exclaimed his intention of pre-empting the sale as his right was superior qua respondent No.1. According to him, he performed "Talb-i-Ishhad" by sending notice on 19-5-1997 attested by two truthful witnesses and thereafter, fulfilled the requirements of "Talb-i-Khasumat" by filing the suit. In support of claim of decree for possession through pre-emption the petitoner asserted his right being "Shafi Sharik". Petitioner further averred that , respondent No.2 was nephew of respondent No.1 who purchased the property and got it transferred "Banami" in the name of his real paternal Aunt (respondent No. 1).

3. Respondents being defendants in the suit, contested the same by filing their written statement wherein besides certain preliminary objections, it was asserted that husband of respondent No.1 gifted the suit-land which was not sale subject to law of pre-emption. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the suit, on the basis of his appraisal of evidence, decree, the same vide his judgment/ decree dated 29-6-1999, fixing consideration as Rs.1,00,000 which was directed to be deposited within 15 days; failing which suit of the petitioner was to be dismissed.

4. Respondent No. 1 aggrieved of the judgment/decree dated 29-6-1999, filed an appeal before the learned Additional District Judge, where she succeeded as her appeal was accepted and the suit of the petitioner was dismissed by reversing judgment/decree of the trial Court vide appellate judgment/decree dated 17-1-2000. Petitioner thereafter, filed instant revision petition for adjudgment of the appellate judgment/decree. Respondents in response to notice by this Court appeared and were represented through their counsel.

5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Petitioner's suit was decreed by trial Court treating the gift as sale, for the sole reason that donor, the husband, was of 54 years of age whereas the donee wife (respondent No.1), was of 87 years of age but these findings were rightly reversed by' the appellate Court, being unreasonable. After scan of evidence on the file I am not ready to contribute to the view taken by the trial Court for multiple reasons. On the first hand, it is undisputed that respondent No.1 is a housewife with no source of income to purchase the suit property and that too, from her husband. Petitioner who had claimed the alienation as sale was under legal obligation to prove that it was not a gift and a matter of fact, was sale but he brought not an iota of evidence on the file to this effect. Petitioner though impleaded nephew of respondent No.1 to the suit but could not prove that he financed the transaction or that, as to why he would have purchased the suit-land "Banami" in the name of wife of the vendor, whose he was not the sole' heir. On the other hand, it is admitted between the parties that both the parties of the gift being husband and wife, had no issue. Husband was younger to his wife but was sick. He foreseeing that in case of his death, respondent No.1 will only get her "Sharai Share" and there being her no other source of income, he decided to gift his property in the name of his wife, as owner. To my mind, gift by an owner in the name of his wife, could not have been dubbed as a sale merely on the basis of difference of age of the spouses, which as a matter of fact was a genuine cause for effected the gift.

6. Petitioner though examined Allah Ditta P.W.4 and Khalas Khan Lumberdar as P.W.5 to prove that transaction reflected in the mutation was a sale but none of these witnesses deposed to have witnessed the bargain of sale and at the same time none of them informed the Revenue Officer or raised any objection at the time of sanctioning of mutation that the transaction has wrongly coloured as gift. Appellate Court, correctly remarked that P.W.5 was not an ordinary witness as he being a Lumberdar, knew procedure of sanctioning of mutations but acted with malice and dishonesty while in the witness box in order to benefit the petitioner, out of the way. P.W.5 stated that he came to know about the real nature of the transaction after 8/10 days of sanctioning of mutation but even at that time, he did not move any application/complaint before any concerned officer to the effect that mutation had wrongly been got sanctioned. Even if, it is assumed that stance of the petitioner was justified that suit-land was in fact purchased by respondent No.2 but was got transferred in the name of respondent No.1 "Bainami" even in that eventuality, the petitioner did not bring any evidence on the file to show that how the transaction was "Benami" as title/possession of the suit land remained with respondent No.1. There is no evidence on the file that in case of death of respondent No.1 she will be succeeded exclusively by respondent No.2. Prerequisites required to be proved by the person alleging "Banami" transaction as per judgment in the case of Alif Khan v. Mst. Mumtaz Begum and another 1998 SCMR 2124 were neither made out nor petitioner could prove those on the file.

7. Gift mutation was sanctioned in favour of respondent No.1 on 29-3-1997 and its knowledge by the petitioner was pleaded as on 7-5-1997. "Talb-i-Muwathibit" was to be performed instantly on gaining of knowledge of the sale but petitioner while in witness box as P.W.1 during his cross-examination admitted that he after 4/5 months from coming to know of the sale, got copies of the Revenue Record from the patwari and straight went to the lawyer for issuance of notice of "Talb-i-Ishhad", this shows ?that the petitioner after knowledge of the sale remained silent for about 4/5 months and did not perform either "Talb-i-Muwathibit" or "Talb-i-Ishhad" within the time prescribed by section 13 of the Punjab Pre-emption Act, 1991. Similarly, P.W.2 Muhammad Shafi is the informer of -the petitioner, about the sale who admitted in the cross-examination that when he came to know about the sale, the mutation had not been sanctioned. He further deposed that on the day of gaining of knowledge of sale he conveyed the information to the petitioner, the same day, as per deposition of P.W.2, the petitioner if had performed "Talb-i-Muwathibit", the same was done prior to c completion/attestation of sale if any, whereas section 13 (1) of the Punjab Pre-emption Act, 1991 made it obligatory to perform "Talb-i-Muwathibit" when the pre-emptor gained knowledge of the "Sale", in the sitting/meeting where he got such information and not earlier. Scan of evidence on the file proved that the petitioner did not perform any of the required Talbs, at relevant time and evidence produced by him was subsequently manoeuvered.

8. Original notice of "Talb-e-Ishhad" allegedly remitted to the respondents was not brought on the file and instead copies of those were produced by P.W.2 as Exh.P.1 and Exh.P.2. Though these copies did not come on the file from a proper custody, as P.W.2 was only a witness of these notices yet those were not proved in accordance with law and were not confronted to the other witness i.e. Barkat Ali, P.W.3, because respondents had denied receipt of those notices in their written statement. Law regarding proof of private documents as enunciated by Article 75 of the Qanun-e-Shahadat Order, 1984 is firmly settled by this time. Notice Exh. P.1 and Exh.P.2 could be proved by requiring the respondents to produce the original notices which were said to have been served by-them, by notice to produce documents. Had such notice been given to the respondents and on their refusal to produce those notices, petitioner was under obligation to move to the trial Court for permission to lead secondary evidence in terms of Article 76 of the Qanun-e-Shahadat, 1984, but no such exercise was undertaken. This Court had consistently held that without bringing on record the original documents and without seeking permission to lead secondary evidence, notice of "Talb-e-Ishhad" will not be assumed to have been proved. In support of this proposition, reference can be made to the judgments in the case of Mst. Ameer v. Soni 1997 MLD 236, Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292, Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409, Hayat Ullah Khan and others v. Jan Alam and others 2003 MLD 625, Ghulam Abbas v. Manzoor Ahmad and another PLD 2000 Lah. 125 and Akhtar Nawaz and others v. Muhammad Nazeer and others 2005 YLR

77. The petitioner without undertaking method of proving notice of "Talb-i-Ishhad" felt satisfied by producing photo stat copies, without confronting those to the P.Ws. 2 and

3. I have no ambiguity that petitioner miserably failed to prove performance of "Talb?i-Muwathibit" as well as "Talb-i-Ishhad", thus his right, if any, stood extinguished in terms of section 13 of the Punjab Pre-emption Act, 1991.

9. For all the reasons noted above, the first appellate Court, correctly concluded the lis and rightly dismissed the suit of the petitioner by holding that gift in favour of respondent No.1 was not sale and that petitioner failed to perform Talbs in accordance with law. Appellate Court, did not commit any illegality/irregularity and its findings being in consonance with the evidence on the file, could not be interfered in revisional jurisdiction of this Court hence, this petition being devoid of any merit is dismissed, with no order as to costs. S.A.K./I-6/L??????????????????????????????????????????????????????????????????????????????????????? Revision dismissed.