2015 PLP 441 (CLC)

MIAN FASIH-UL-MULK, J.

Land measuring 16 kanals in Khata No.13/54 to 56 situated at Moza Hisara Barani Paynan Tehsil Tangi was mutated by the vendor Mst. Nagina Begum in favour of Wali Jan and Ihsanullah, vide mutation No.1846 attested on 14-12-2006 for a sale consideration of Rs.10 Lacs, which sale was pre-empted by Amir Nawaz Khan, petitioner herein, on the ground of superior right of pre-emption by filing a suit in the Court of Civil Judge, Tangi. The suit was contested, issues were framed, evidence of the parties was recorded vide judgment/decree dated 28-4-2010 the suit was dismissed. According to the trial Court, petitioner was neither having superior right of pre-emption nor 'talbs' in the case were made in accordance with the requirements of law. Petitioner preferred an appeal before the learned Additional District Judge, Charsadda at Tangi against the impugned judgment of trial Court. The appellate Court, vide judgment/decree dated 29-11-2011 reversed the negative findings on Issue No.2 and held that petitioner was having superior right of pre-emption. The findings of trial Court that petitioner had not fulfilled the requisite talbs in accordance with law were, however, upheld and appeal of petitioner was dismissed.

3. Petitioner has now filed instant revision petition against the impugned judgments of the two Courts below and has prayed that the same be set aside and his suit be deemed as prayed for.

4. I have heard arguments of learned counsel for the parties and have also perused record of the case.

5. As per contents of the plaint, petitioner came to know about the sale in question on 26-3-2007 at Nawaz Abad Mahal Kiramat Shah in his hujra through his son Muhammad Nawaz Khan at 7 p.m in the evening and he there and then declared his intention to pre-empt the sale in presence of his son Muhammad Nawaz Khan and one Fazle Mabood son of Abdul Ghaffar. It was further averred that on 29-3-2007, he sent notices to the vendees duly signed by marginal witnesses through registered A.D covers. According to petitioner, an exaggerated amount was mentioned in the sale mutation as the sale in question was actually struck for an amount of Rs.5 lacs only. The defendant/respondents in their written statement denied the claim of petitioner and stated that the property in question is in their possession since long; that petitioner was in the knowledge of sale mutation; that petitioner did not fulfil the requirements of 'Talb-i-Muwathibat'; that the sale was not kept secret; that petitioner in his notices of 'Talb-i-Ishhad' has not mentioned the presence of alleged two witnesses at the time of making demand of pre-emption in the 'majlis' and that sale consideration as mentioned in the mutation was paid in good faith; hence the suit is liable to be dismissed.

6. A look at the statement of petitioner recorded as PW.4 would reveal that he in his examination-in-chief reiterated the contents of his plaint. In cross-examination he stated that on 26-3-2007, his son had gone to Tangi in the morning time in motorcar; that he was sitting in the veranda of his hujra along with Fazle Mabood, who is not his relative, and at evening time his son came there and informed him about the sale in question; hence he made jumping demand in their presence. He further disclosed that he applied for obtaining certified copy of mutation on 27-3-2010, which was supplied to him on the same day and that notice of 'Talb-i-Ishhad' was issued against defendants on 29-3-2010, which were posted in the local post office. He denied the suggestion that revenue documents were received by him through his son. He further disclosed that father of defendant No.2 was tenant of the vendor and that suit property was on tease with defendants before its purchase.

7. The statement of Muhammad Nawaz Khan was recorded as PW-5, who stated in his examination-in-chief that on 26-3-2007, he informed his father at out the sale in question at 7.00 p.m. with whom one Fazle Mabood was also sitting in the Hujra at Nawaz Abad. On his information, his father there and then declared his intention to exercise his right of pre-emption in his presence and Fazle Mabood whereafter on 29-3-2007 counsel of plaintiff drafted two notices at the instance of plaintiff in the names of defendants, which were signed by him as a witness. In cross-examination he stated that on the day of information he alone had come to Tangi where he knew about the sale in the local Patwar Khana; that he had never obtained copy of mutation and other revenue record from Patwar Khana rather his father had obtained its certified copy for which application was submitted by his father; that Fazle Mabood is their friend, who is serving in Umarzai School and is the resident of Utmanzai; that he directly came to his Hujra and that defendants are cultivating the suit land on lease.

8. Almost similar is the statement of Fazle Mabood (PW.6) who has stated in his examination-in-chief that on 26-3-2007, he was sitting with the plaintiff in his hujra when at about 6.45/7.00 p.m. Muhammad Nawaz came to the Hujra and informed the plaintiff about the sale in dispute; that plaintiff there and then in their presence declared his intention to exercise the right of pre-emption; that he was present at the time of drafting the notices which were issued in the name of defendants and he signed the same as a witness. In cross-examination he stated that he is not permanently residing with plaintiff and on the day of information he had gone at afternoon time to the hujra of plaintiff from Utmanzai; that he stayed/remained with plaintiff till 08/8.30 p.m; that Muhammad Nawaz Khan directly came to the Hujra where they were sitting in veranda; that after the date of information they came to the counsel on the next day and notices were issued on 29-3-2010 which was Thursday; that after spending the night in the hujra of plaintiff, they came to Ketcheri next morning for filing the suit.

9. From the above evidence, it is evident that on 26-3-2007 at 7.00 p.m. plaintiff/petitioner got knowledge of the sale in question in his hujra through his son in presence of PW Fazli Mabood. All the witnesses are unanimous on the date, time and place of making jumping demand by plaintiff. The trial Court as well as appellate Court have however taken into consideration minor discrepancies and contradictions in the statements of PWs; such as, that on what day plaintiff made `Talb-i-Muwathibat'; that according to PW Fazle Mabood, the informer came to the Hujra at 6.45/7.00 p.m.; that names of marginal witnesses were not mentioned in the notice of 'Talb-i-Ishhad'; that name of PW-6 Fazle Mabood was not mentioned anywhere in the plaint and that this PW had spent night in the hujra, which fact was not stated by plaintiff and his son that after spending night in the hujra he accompanied them to the Kachehri. The learned Courts further observed that 'Talb-i-Khusumat'was required to be fulfilled by plaintiff personally but he filed the suit through his son on 9-4-2007 whereas power of attorney was submitted on 28-5-2007.

10. Plaintiff/petitioner and his witnesses have corroborated each other on assertion that the moment plaintiff came to know of the sale, he immediately made demand in same sitting by declaring his intention to exercise right of pre-mption. Plaintiff after fulfilling requirement of immediate demand served notice of 'Talb-i-Ishhad' wherein it was specifically mentioned that he acquired knowledge of sale transaction on 26-3-2007 and in the same sitting where he got such information, he in presence of witnesses declared his intention to exercise right of pre-emption. Statement of plaintiff on oath with written notice sent to defendants within time has substantially complied with legal requirements of S.13(3) of Pre-emption Act, 1987. The learned Courts below while giving findings on issue regarding talbs have indulged in strict scrutiny of oral evidence to find faults, minor omissions and contradictions against the sound judicial principles because rules and standards for appraisal of evidence in civil cases are different from those employed in criminal cases. From the statement of PW.6 it cannot he presumed that on the day of information he spent night with the plaintiff as according to him he had spent the night of that morning in the hujra of plaintiff, when the suit was being filed. Similarly, it would make no difference in the time of information when PW.6 has stated that at about 6.45/7.00 p.m. the informer came to the Hujra. Admittedly copy of mutation was obtained by plaintiff on 27-3-2007 and suit was instituted on 9-4-2007.

11. The learned Courts below at the same time have misread and non-read evidence of plaintiff available on record. The name of Fazle-Mabood is very much given in Para-4 of the plaint and the learned appellate Court has wrongly assumed that name of Fazle-Mabood was not mentioned anywhere in the plaint. Similarly, in the notices of `Talb-i-Ishhad' it is stated that plaintiff came to know about the sale on 26-3-2007 at 07 p.m. in his hujra situated at Nawaz Abad through his son and he there and then in the same majlis declared his right of pre-emption. Majlis is an Arabic term meaning "a place of sitting", used in the context of "council", to describe various types of special gatherings among common interest groups. It also denotes a meeting or an assembly of persons, thus, majlis cannot be said to be an assembly of only one person. The learned Courts below have relied on the statement of defendant No.1 that every one in the village was aware of the sale in question. The oral evidence that every one was having knowledge of the sale would not mean that petitioner had also knowledge of the sale because knowledge of other persons cannot be presumed to be knowledge of the suitor.

13. The defendants in their written statement have stated that plaintiff had not mentioned the name of Fazle-Mabood in the notice of 'Talb-i-Ishahad', which means that they had received such notices as stated by plaintiff. Plaintiff also produced photocopy of notice in evidence along with postal receipt, hence strong presumption arises that the notice must have been received by the addressee. Plaintiff-petitioner has thus also performed 'Talb-i-Ishihad' in the manner provided by law.

14. About 'Talb-i-Khusomat' it may be mentioned that although wakalat-nama was there in the name of son of petitioner and power of attorney was subsequently executed in his favour but the apex Court in the case of Muhammad Siddique and another v. Syed Zawar Hussain Abidi and 9 others (PLD 1976 SC 572) has held that:

"The word 'sues' according to its ordinary connotation means institutes and according to rule 1, Order IV, C.P.C., a suit is instituted by the presentment of the plaint to a Court of competent jurisdiction. Therefore the suit is instituted as soon as the plaint is presented and it is accepted by the Presiding Officer any deflect notwithstanding." The above dictum was again reproduced by the august Supreme Court of Pakistan in the case of Mst. Sabiran Bi v. Ahmad Khan and another (2000 SCMR 847). Hence, the conclusion of appellate Court that the third demand was not properly fulfilled has no substance.

15. No doubt, this Court while exercising revisional jurisdiction is not required to enter upon the reappraisal of evidence, but when the learned Courts below act in disregard of law and well settled principles relating to appraisal of evidence and when element of injustice caused to the petitioner is apparent on record, then the findings recorded by the Courts below can be corrected in exercise of revisional powers under section 115, C.P.C.

16. For the aforesaid reasons, the impugned judgments of the Courts below being not based on proper appreciation of the law and facts on record are liable to be set aside except the issue of determining the correct market value of the suit property, because the market value in the case being proper and not seriously disputed is not open to any exception. The petitioner is directed to deposit the remaining amount within a period of 30 days. No order as to costs. AG/109/P Revision accepted.