2016 PLP 1140 (CLC)

MUHAMMAD DAUD KHAN, J.

The petitioner through the instant Revision Petition challenged the legality and propriety of the judgment and decree dated 04.02.2010 of the learned Civil Judge-II, Karak and that of the Additional District Judge, Karak, dated 26.02.2011, wherein petitioner's suit for possession through exercise of right of pre-emption regarding suit property, was dismissed.

2. Facts of the case in brief are that vide mutation No.749 attested on 29.08.2006 Muhammad Razaq and others transferred an area measuring 13 marlas of land situated at Mauza Buland Kala, Tehsil and District Karak by way of gift in favour of respondent/defendant Khalid lqbal. Petitioner/plaintiff Isam Jan instituted the pre-emption suit claiming that the land had, in fact, been purchased by defendant and to defeat the rights of the prospective pre-emptor a fictitious colour of gift was given to the transaction. The plaintiff also averred in the plaint that on 04.09.2006 at about 04.30 hours he came to know about the sale of the suit property from one Sakhi Marjan, when he was sitting in his Hujra and that he immediately made Talb-i-Muwathibat in the presence of witnesses and later on sent a notice of Talb-i-Ishhad to the defendant vide registered post with acknowledgement due on 05.09.2006.

3. Respondent/defendant was summoned, who on appearance, contested the suit by filing written statement. Pleadings of the parties obliged the learned trial court to frame the following issues. ISSUES.

1. Whether the plaintiff has got cause of action?

2. Whether the suit of the plaintiff is within time?

3. Whether the plaintiff has raised required talbs in accordance with law?

4. What is the market value of the suit land?

5. Whether the plaintiff has got superior right of pre-emption against the defendant?

6. Whether the transaction in question is sale?

7. Whether the plaintiff is entitled to the decree as prayed for?

8. Relief.

4. After recording pro and contra evidence of the parties as they wished to adduce, the learned trial court came to the conclusion that the plaintiff has failed to bring cogent evidence; that the defendant had actually purchased the land and held transaction to be a gift and thus not pre-emptable. In addition to that the trial court also had taken the view that plaintiff did not prove the performance of Talbs according to law, resultantly dismissed the suit vide its judgment and decree dated 04.02.2010.

5. Aggrieved from the findings of the learned trial court, the petitioner/plaintiff preferred an appeal in the District Appellate Court, where too he failed vide its judgment and decree dated 26.02.2010. Dissatisfied from the concurrent judgments and decrees of learned both the subordinate courts, the petitioner impugned the same through this Revision Petition.

6. Mr. Abdul Jabbar Khan Khattak, the learned counsel for petitioner contended that both the learned courts below wrongly put the burden of proof on the petitioner/plaintiff rather it was on the transferee, who had to prove the transaction to be a gift and not a sale. He further contended that petitioner/plaintiff has been non-suited for minor contradictions in the evidence, with regard to the required demands of the parties which are otherwise to be condoned and ignored in accordance with the established rules laid down by the judgments of the superior courts.

7. Conversely. Mr. Muhammad Umer Khattak, the learned counsel for respondent/defendant vehemently opposed the arguments of the learned counsel for the petitioner and supported the impugned judgments and decrees of both learned courts below. The learned counsel further contended that both the subordinate courts concurrently recorded their findings on the question of facts without any defect of misreading and non-reading of evidence or that the conclusion drawn by said courts is contrary to law, hence that cannot be interfered in the revision.

8. Arguments of learned counsel for the parties heard and record perused.

9. Petitioner/plaintiff beside himself produced five witnesses. Patwari Halqa was examined as PW-1, Awal Band as PW-2, Sarwar Khan as PW-3, Sakhi Marjan as PW-4, Awaz Khan as PW-5 but no one stated that he himself saw or observed or present at the time of attestation of mutation where alleged sale consideration changed hand between the defendant and donor. Even the statement of plaintiff appeared as PW-6 nowhere stated that he himself seen the alleged bargain between the parties. His statement is also in the nature of hearsay. It is one of the essential ingredients, which need to be proved for the sale that consideration must change hands. To prove a gift to be a sale the plaintiff/pre-emptor has to satisfy the judicial conscience of the court through cogent and convincing evidence. No doubt the plaintiff has challenged the gift on the basis of circumstances, presumptive in nature, which amounts to place burden on defendant, but to prove the same, the plaintiff did not make any effort, hence mere assertion of plaintiff in the plaint could not shift the burden to the defendant. It is well settled law that gift is to be genuine, even if made to defeat the right of pre-emption, because a device to avoid pre-emption is permissible provided it is not a disguise. The Hon'ble Supreme Court of Pakistan in the case Muhammad Zaheer Ahmad v. Tariq Mehmood and another (2007 SCMR 1275) while dilating the principle of burden of proof, in case of pre-emption, to prove gift to be sale held; "It is a matter of common knowledge that in such-like suits of pre-emption against a transaction purporting to be a gift, the burden lies squarely on the pre-emptor to prove that it is a sale. The amount of consideration either paid or partly paid or promised to be paid are a few questions of fact, which require to be proved in connection with a sale. The striking of bargain and the fixation of consideration are further questions of fact that lead to be completion of a sale. Not an iota of evidence was produced by the pre-emptor to prove any of the aforesaid acts and hence there was no occasion at all for the first two Courts to hold the transaction a sale instead of gift." The statement of defendant as DW-1 is also worth mentioning. He categorically stated in examination-in-chief that suit land was gifted to him by donor but this statement was not challenged in cross-examination by the petitioner/plaintiff, rather this fact has been affirmed by putting positive suggestion, which is also fatal for the claim of plaintiff. It is well settled law that when the statement of adverse party has not been questioned in cross examination, same would deem to be correct. In brief, the gift in the instant case could not be turned down on the basis of unsatisfactory, cogent and convincing evidence produced by the petitioner/plaintiff.

10. Coming to the other issue of performance of talbs by the petitioner/plaintiff. The plaintiff averred in the plaint that he got knowledge of transaction through one Sakhi Marjan on 04.09.2006 at 04.30 PM in his Hujra situated at Bulan Kala, he there and then made Talb-i-Muwathibat. Later on sent notice Talb-i-Ishhad on 05.09.2006 but his alleged informer and marginal witness of notice Talb-i-Ishhad Sakhi Marjan (PW-4) categorically stated in examination-in-chief that he informed the petitioner/plaintiff about the said transaction on 03.09.2006 and sent a notice Talb-i-Ishhad on 04.09.2006 and date of sending notice of Talb-i-Ishhad was again repeated by mentioning the date 04.09.2006. In my view this is not a minor contradiction but it is a material contradiction which is sufficient to disentitle the pre-emptor for successful exercise of right of pre-emption.

11. When the concurrent findings by the two courts below based on facts and sound appreciation of evidence it is well settled that the scope of revisional jurisdiction is very limited in which the Court cannot set aside the concurrent findings of facts recorded by Courts of competent jurisdiction nor it can upset the same even if on appreciation of evidence a different view can be formed unless these findings are shown patently illegal, without jurisdiction or the result of bare misreading and non-reading of material evidence, based on conjectural presumptions or erroneous assumption. No such infirmity has been pointed out by learned counsel for the petitioner in the impugned judgment, which may warrant interference of this Court. Reference, in this regard can be made to case titled, "Haji Muhammad Saleem v. Khuda Bakhsh" (PLD 2003 Supreme Court 315). Attiqur Rehman and another v. Muhammad Amin (PLD 2006 SC 309) and Muhammad Idrees and others v. Muhammad Pervaiz and others (2010 SCMR 05).

7. For the reasons discussed above, the petition being merit-less is hereby dismissed, with no order as to costs. MM/160/P Petition dismissed.