2004 PLP 1003 (MLD)

This judgment shall decide Civil Revision No.259 of 1999, Civil Revision No.260 of 1999 and Civil Revision No.87 of 2000, as same common questions are involved in all the three cases.

2. These cases have a chequered history. Pleaded facts of these cases are as follows:‑‑ (i) In the mater of C.R. No. 259 of 1999 land measuring 2 Kanals 2 Marlas was sold by Muhammad Alam to the petitioners vide Mutation No. 710 attested on 27-6-1974. (ii) In the matter of C.R. No.260 of 1999, land measuring 6 Kanals 13 Marlas was sold by Muhammad Alam to the petitioners vide registered sale‑deed dated 22‑5‑1974. (iii) In the matter of C.R. No.87 of 2000 said Muhammad Alam sold land measuring 6 Kanals to Muhammad Bashir, predecessor in interest of the petitioners in. the said case vide Mutation No.703, attested on 27‑6‑1974. (iv) On 19‑5‑1975, Najeeb Ali, predecessor‑in‑interest of the respondents filed three suits for possession by pre‑emption. In all the suits he claimed right of pre‑emption on the ground that he is collateral of the vendor, co‑sharer in the Khata and also owner in the estate. The petitioners in all the three cases took, an objection that they are Mangla Dam Oustees and suits are not competent. Other allegations in the said plaints were denied. Issues were framed and evidence of the parties was recorded. Learned trial Court found the petitioners/vendees to be Mangla Dam Oustees and dismissed all the three suits vide judgments and decrees dated 14‑3‑1977. First appeals filed by the respondents were dismissed by learned District Judge, Jhelum on 19‑7‑1979. R.S.As. filed in this Court were dismissed on 13‑2‑1988. C.P.L.As. filed in the Hon'ble Supreme Court of Pakistan were disposed of on 9‑4‑1991 in the following terms: "In view of section 35 of the Punjab Pre‑emption Act, 1991, these appeals are disposed of in terms of the said section of the Act, the pre‑emptor/appellant has already sought relief from the trial Court by making an application in this behalf. Disposed of. No costs". Now the said applications under section 35 of the Punjab Pre‑emption Ordinance, 1990, had been filed by the respondents on 19‑1‑1991. These were dismissed on 14‑5‑1991. Revisions filed by the petitioners were, however, allowed by learned Additional District Judge, Jhelum, on 27‑10‑1991 who accepted the said applications and revived the suits with direction to the learned trial Court to decide the same afresh. Writ Petitions Nos.411, 412 and 555 of 1992 were filed in this Court which were decided by a common judgment dated 4‑5‑1998 of this Court and were dismissed. (v) Thereafter, the respondents led evidence of "Talb‑e‑Ishhad". The petitioners led rebuttal. Learned trial Court decreed the suits vide judgments and decrees dated 8‑3‑1999. First appeals filed by the petitioners were dismissed by learned District Judge, Jhelum by means of a common judgment on 17‑7‑1999.

3. Sh. Zameer Hussain, Advocate and Mr. Ajmal Kamal Mirza, Advocate, learned counsel for the petitioners argue that the suits could not have been revived or restored under section 36 of the said Ordinance or the Punjab Pre‑emption Act, 1991. According to them, the suits were filed under old pre‑emption law (Punjab Pre‑emption Act, 1913) and were tried under the said Act and dismissed as far back as in the year 1977. First appeals were dismissed and so was the case with the second appeals. According to the learned counsel it was represented before the Hon'ble Supreme Court of Pakistan that relief is being sought under section 36 of the said Ordinance and the C.P.L.As. were disposed of accordingly. It is further contended that the evidence on record has been misread. There is no reference at all to the rebuttal led by the petitioners denying the statement made by the sole witness for the respondents regarding making of "Talab‑i‑Ishhad".

4. Ch. Mushtaq Ahmad Khan and Mr. Abdul Karim Karala, Advocates, learned counsel for the respondents, on the other hand, vehemently contend that the matters stand finalized in the judgment passed by this Court on 4‑5‑1998 in the said writ petitions and cannot be reopened before this Court. Regarding said second contention of the learned counsel for the petitioners, it is alleged that this is concurrent finding of fact and ought not to be interfered with in the civil revisions.

5. I have examined copies of records appended with all these C.Rs with the assistance of the learned counsel for the parties. The facts stated by me above pertaining to the history of these cases are admitted. It is but a matter of record that the sales took place in the year 1974 while the suits were filed in the year 1975 i.e. before even introduction of Article 203‑D in the Constitution and of course, addition of Article 2‑A thereto and so was the position on the date these were dismissed on 4‑3‑1977 by the learned trial Court for the said reasons noted above. The judgments were affirmed in first and second appeals and to my mind also by the Hon'ble Supreme Court Pakistan inasmuch as the said judgments were not interfered with.

6. It is no body's case that the suits were dismissed for reason that "Talbs" had not been made for the simple reason that at the relevant time Punjab Pre‑emption Act, 1913 was in force and no such requirement was A there. In my humble opinion such dead and buried suits could not have been revived under provisions of the said section 35 of the said Act. I draw support for this opinion from a D.B. judgment of this Court in the case of Ahmad and others versus Muhammad Hayat and others (1995 MLD 571).

7. Learned counsel for the petitioners have attempted to argue that the said judgment of this Court in the said writ petitions being relied upon by the learned counsel for the respondents was passed under the impression that the suit was dismissed after the judgment in Said Kamal Shah's case. However, I am not inclined to make any further comments in this matter as I agree with the learned counsel, for the respondents that it is not for this Court to comment upon or to express disagreement with the said judgment of this Court while hearing these revision petitions.

8. Now coming to the said second contention of the learned counsel for the petitioners I find that there is nothing in the plaint and, of course, there was no occasion for the deceased‑plaintiff to have pleaded making of "Talb" in a suit filed in the year 1975 to pre‑empt a sale that had taken place in the year 1974. However, the fact remains that no attempt was made to amend the said pleadings. Only relevant averments are that although the defendant were called upon to admit the right and deliver possession after taking the price but they have refused a week ago. These were the usual contents of the relevant para. of the plaint in old days and it has been held by the Hon'ble Supreme Court of Pakistan in the case titled Ghulam Qadir v. Nawab Din and others (PLD 1988 SC 701) that these do not constitute pleadings pertaining to "Talbs" as understood in the Islamic Law. Now sales had taken place on 22‑5‑1974 ad 27‑6‑1974, respectively in the matter of Civil Revision No.259 of 1999 and Civil Revision No.260 of 1999 on the one hand and Civil Revision No.87 of 2000 on the other. All the three suits were filed on 19‑5‑1975. In all the plaints it has been stated that the vendees refused to transfer the land one week before. Now Sultan Muhammad son of Ghulam Hassan (P.W.6) appeared in all these three cases purporting to be a witness of "Talb‑i -Ishhad". He is the sole witness. Now in the matter of Civil Revision No.259 of 1999 and Civil Revision No.260 of 1999, he stated that one month after the attestation of mutation, Najeeb Ali came to know about the sale and he made "Talb‑i‑Muwathibat" 3/4 days thereafter, he came to the witness and they went to the house of the vendees alongwith Mehtab and all three of them told the vendees that Najeeb Ali has superior right and they should transfer the land to him on payment of the price. They replied that they would think over it and later refused. In the matter of Civil Revision No. 87 of 2000, he stated that after one month of the mutation Najeeb Ali came to know and 3/4 days thereafter he came to the witness and they went to the house of Muhammad Bashir, vendee, who was asked to return the land. He replied that they should not make this demand whereupon Najeeb Ali told him that they would file suit.

9. Now it will be seen that apart from the absence of said requisite pleadings, statement runs counter to the persistant pleas in all the three plaints that the refusal was made by the respondents a week before the institution of the suits. Now Sohbat Ali, one of the vendees in the matter of Civil‑ Revision No.259 of 1999 and Civil Revision N.260 of 1999 and Fazal Elahi, attorney of Muhammad Bashir, deceased vendee, appeared in rebuttal in these cases and denied that after the sale anyone came to them asking for the transfer of the lands.

10. Now the, learned trial Court has discussed the matter in para.7 (ii) of his judgments in all the three cases. He has referred to the statements of Sultan Muhammad (P.W.6) and has observed that the defendants have failed to shake his credibility by establishing that either he had committed major sins or he was punished previously for making false statement by any Court of law. There is not a word in any of the three judgments to the effect that the statement of the said sole witness was duly rebutted by the defendants by leading evidence in defence and denying the contents of the said statement, and going by the criteria laid down by the learned trial Court, said witnesses/defendants who appeared in rebuttal did not also suffer from any of the said disqualifications. This being so, learned trial Court by all means has failed to read evidence on record while recording its finding that "Talb‑i‑Ishhad" has been proved.

11. So far as the judgment of the learned District Judge, Jhelum is concerned, he has no: even attempted to consider the said findings of the learned trial Court or to read evidence on record in support of the same.

12. For all that has been discussed above, all the three Civil Revisions are allowed. The impugned judgments and decrees of both the learned Courts below are set aside and all the three suits filed by the respondents are dismissed leaving the parties to bear their own costs. M.H./S‑29/L Revisions allowed.