2005 PLP 3313 (YLR)

IJAZ-UL-HASSAN KHAN, J.

Muhammad Hassan, defendant purchased from one Mst. Gag Sabjai, suit-land measuring 6 Kanals, 2 Marlas situate in the area of Chak Thal, Parpur District D.I. Khan, vide Mutation No. 17634, attested on 30-12-1997 for an ostensible price of Rs.4,

000. Ghulam Akbar plaintiff, feeling aggrieved, instituted before Senior Civil Judge, D.I. Khan, a suit for possession through pre-emption on the ground of being contiguous owner therein. The plaintiff claimed to have gained knowledge of suit transaction on 18-2-1998 at 4-00 p.m, in his house through his co-villager Ghulam Haider and declared his intention to pre-empt suit sale there and then. The suit was resisted on all grounds, legal as well as factual. The parties were put to trial on as many as 14 issues. For the purpose of this revision, I am concerned with Issues Nos. 1, 5, 9, 13 and 14, which are to the effect:-- (1) Whether plaintiff has gota cause of action and locus standi? (5) Whether suit is within time? (9) Whether the Talbs have been made in accordance with law. (13) Whether plaintiff is entitled to the decree as prayed for? (14) Relief.

2. The parties produced evidence in support of their respective contentions. The learned Civil Judge, D.I. Khan, seized of the matter, taking into consideration the material on record, allowed the suit by judgment and decree dated 8-6-2000. An appeal was preferred there against on 21-6-2000, which was accepted by Additional District Judge, D.I. Khan by order dated 10-4-2002. The impugned judgment and decree of trial Court was set aside and suit was dismissed. Hence instant civil revision under section 115 of the Code of Civil Procedure.

3. Appearing on behalf of the petitioner, Mr. Abdul Sattar Shah, Advocate, vehemently contended that the judgment and decree of the learned Appellate Court is the outcome of misreading, misconstruction and non-reading of evidence on record and does not qualify the requirements of a valid judgment. The learned counsel attempted to argue that the Appellate Court failed to appreciate the evidence in its true perspective and came to an erroneous conclusion which resulted in complete failure of justice. Concluding the arguments, the learned counsel maintained that there was sufficient material on the file to prove that the petitioner gained knowledge of the suit transaction on 18-2-1998 through P.W. Ghulam Haider and instituted pre-emption suit in time, which has been ignored by the learned Appellate Court without any legal justification.

4. On the contrary, Mr. Salim Nawaz, Advocate for the respondent, controverted the arguments advanced on behalf of the petitioner and submitted that the Appellate Court has elaborately discussed every aspect of the case and dealt with the same in detail, leaving no room for further consideration. To supplement the contentions, he placed reliance on Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Rana Muhammad Tufail v. Munir Ahmad and another PLD 2001 SC 13 and Mst. Nusrat Khurshid v. Shah Jehan 2000 CLC 1853.

5. Section 13 of the N.-W.F.P. Pre-emption Act, 1987 relates to the demands of pre-emption according to Islamic law of pre-emption before institution of a suit by the prospective pre-emptor. These demands have been termed as `Talb-i-Muwthibat', Talb-i-Ishhad; and `Talb-i-Khusumat', Talb-i-Muwthibat is to be made immediately by a pre-emptor in a sitting or meeting in which he has come to know of the sale and there and then declaring his intention to exercise the right of pre-emption. In case of `Talb-i-Ishhad' the pre-emptor is required to send a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his intention to exercise the right of pre-emption soon after the `Talb-i-Muwthibat' and `Talb-i-Ishhad' the pre-emptor is required to make `Talb-i-Khusumat' by filing a suit in the Court of competent jurisdiction to enforce his right of pre-emption.

6. It's stands established from the material on record that on 12-2-1998, the petitioner moved an application before the Tehsildar, Paharpur, for obtaining copy of the suit mutation. The application was allowed and the copy was supplied on 18-12-1998. It shows that on the date of filing of application i.e. 12-2-1998, the petitioner had knowledge of the suit transaction. This fact also gains strength from the relevant portion of the cross-examination of the statement of the petitioner, which reads:-- The learned counsel for the respondent also contended with justification that statements of the petitioner's witnesses qua time of knowledge of suit transaction, run contrary to each other and case set up at the trial by the petitioner is not in harmony with the contents of plaint. Having regard to facts and circumstances of the case, I am confident that the petitioner had knowledge of the suit transaction on 12-2-1998 but failed to institute pre-emption suit in time. The appraisal of evidence undertaken by the Appellate Court was perfectly in accordance with principles settled by the superior Courts about appraisal of evidence in civil cases and the same did not suffer from any legal infirmity which could be interfered with by the High Court in exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure, 1898. Finding no substance in this civil revision, the same is hereby dismissed with no order as to costs. H.B.T./534/P Revision dismissed.