2003 PLP 1756 (CLC)

Syed Zafar Ali Shah for Respondents. Date of hearing: 21st May, 2003. The brief facts out of which the present revision petition arises are that Mst. Manzoor Bibi sold land measuring 62-Kanals comprised in Khewat No.41, Khatooni No.131 to 136 situated in Chak No.107 (Southern) District Sargodha to Falak Sher and Gulsher. The petitioner being aggrieved filed a suit for possession through pre-emption before the Civil Judge, Sargodha. The contents of the plaint reveal that the petitioner/plaintiff has challenged the sale on the basis of the superior right of pre-emption. The contents of the plaint further reveal that the petitioner/plaintiff claims to be the owner in same Khewat. According to him, his land is adjacent to the land in-question and has the same source of irrigation. The contents of the plaint further reveal that the respondents purchased the land in-question secretly through a registered sale-deed dated 10-11-1992 and the petitioner/plaintiff claimed to have acquired the knowledge about the sale on 30-11-1992. According to the contents of the plaint, requirements of Talbs were duly fulfilled, and the pre-emption is necessary (Zaroorat) to avoid Zarrar. The contents of the plaint further reveal that the sale price according to him has been falsely incorporated as Rs.10,40,000 in the sale-deed. The actual price according to the petitioner/plaintiff is Rs.6,00,

000. Respondents filed written statement, controverted the allegations levelled in the plaint. Out of-the pleadings of the parties, the trial Court framed the following issues:-- (1) Whether the plaintiff has got superior right of pre-emption against defendant? OPP (2) Whether the ostensible, sale price of Rs.10,40,000 was fixed in good faith and was paid at the time of alleged sale? OPD (3) If Issue No.2 is not proved, then what was the market value of the suit property at the time of alleged sale? OP Parties. (4) Whether the plaintiff has fulfilled the requirements of Talbs as well as notice "Talb-i-Ishhad" etc.? OPP (5) Whether the plaintiff has filed this suit in view of Zaroorat or to avoid Zarrar? OPP (6) Whether the suit property has been incorrectly valued for the purposes of court-fee and jurisdiction? If so, its effect? OPD (7) Whether the plaintiff has got no cause of action? OPD (8) Relief.

2. The learned trial Court dismissed the suit vide judgment and decree dated 10-11-1994. The petitioner being aggrieved filed an appeal before the Additional District Judge, Sargodha, who dismissed the same vide impugned judgment and decree dated 25-3-1996. Hence, this revision petition.

3. The learned counsel of the petitioner submits that the concurrent findings of facts of the Courts below stand vitiated as it is a case of misreading and non-reading of evidence resulting in patently unjust decision. He further submits that the First Appellate Court decided the case against the petitioner on the statement of Arshad Ali D. W.1 who had signed the notice issued by the plaintiff to the respondents in terms of the provisions of the Pre-emption Act alongwith Ghulam Jaffar and Nasir Abbas. Arshad Ali D.W.1 was won-over by the respondents. During his statement, the petitioner had given an offer that Arshad Ali would give statement on oath that he had not signed the notice then petitioner would have withdrawn the suit. The office was not accepted by D.W.1 Arshad Ali. He further submits that Talbs were duly proved on record in accordance with the provisions of the Pre-emption Act by producing Ghulam Jaffar P. W.2 and Nasir Abbas P. W.3. He further submits that P.W.1 Amir Ali plaintiff has also corroborated the statement of Nasir Abbas and Ghulam Jaffar. He further submits that both the Courts below have decided the case against the petitioner without applying their independent mind and by ignoring statement of P.W.2 Ghulam Jaffar and P.W.3'Nasir Abbas which is not in accordance with the law laid down by the superior Courts. In- support of his contentions, he relied upon Mst. Zainab v. Majeed Ali and another 1993 SCMR 356 and Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar. 492.

4. The learned counsel of the respondents submits that the petitioner admitted in para No. 2 of the, plaint that he had come to know about the sale on 30-11-1992 whereas P. W.1 Amir Ali, P.W.2, Ghulam Jaffar and P.W.3 Nasir Abbas appeared before the trial Court on 10-11-1993 and admitted in examination-in-chief that they had come to know, about the sale 11-1/2 months prior to 16-11-1993, therefore, petitioner had the knowledge of the sale on 31-12-1992 or 1-1-1993, therefore, both the Courts below rightly non-suited the petitioner after proper appreciation of evidence. He further submits that according to the averments of the plaint, notice was dictated after perusing the 'sale-deed whereas the petitioner filed an application qua securing a certified copy of the sale -deed on 15-3-1993 as is evident from Exh.P.W.1/3 which is attached with the file at page 97, therefore, assertion of the petitioner in the plaint is not in accordance with this document. He further submits that statement of D.W.1, Arshad Ali be excluded from- consideration even then the petitioner fails to fulfil the requirement of Talbs in terms of section 13 of the Punjab Pre-emption Act. He further submits that respondents purchased the land in-question from Mst. Manzoor Begum on 10-11-1992 and subsequently, purchased two acres from Mst. Manzoor Begum on 19-11-1992 whereas the petitioner had filed suit for possession through pre-emption before the Civil Judge, Sargodha on 9-3-1993. The respondents had secured equal right qua the petitioner in view of section 20 of the Punjab Pre-emption Act. He further submits that the pre-emption suit was also filed against the respondents which was dismissed as is, evident from the decree attached by the petitioner alongwith the revision petition at page 77, which was before the trial Court in the shape of Exh.D/2. Amir Ali being aggrieved filed appeal against the aforesaid judgment and decree which was also 'dismissed during the pendency of this revision petition. Copy of the judgment is placed on the record.

5. The learned counsel of the petitioner in rebuttal submits that the petitioner filed an application to secure a certified copy of the sale-deed on 15-3-1993, therefore, the contention of the learned counsel of the respondents that petitioner had filed application after the knowledge, has no force as the petitioner submitted the application to secure a certified copy of the sale-deed for the purpose to tender the same in evidence before the trial Court. He further submits that the judgments of both the Courts below are not in accordance with law. He further submits that section 20 of the Punjab Pre-emption Act is not attracted in the present case as the right has accrued to the petitioner first and subsequently, respondents purchased the land, therefore, respondents are not entitled to get benefit of section 20 of the Punjab Pre-emption Act.

6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

7. The contention of the learned counsel of the petitioner has a force that the First Appellate Court has decided the case without proper appreciation of evidence merely relying upon the statement of Arshad Ali, D.W.1, which is not in accordance with the principle laid down by the superior Courts. In the civil matters, the rule of preponderance prevails as per law laid down by the Karachi High Court in Muhammad Luqman's case PLD 1994 Karachi

492. The aforesaid proposition of law is also supported by the judgment of the Honourable Supreme Court in Mst. Zainab Bibi's case 1993 SCMR

356. Even otherwise, it is the duty and obligation of the First Appellate Court to decide the controversy between the parties after applying its judicial mind as per principle laid down by the Honourable Supreme Court in Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC

173. It is also settled principle of law that the respondents are well within their right to support the judgment of the First Appellate Court without filing the cross-objection. It is also admitted fact that the petitioner had filed suit on 8-3-1993 and the suit of the petitioner was dismissed by the trial Court vide judgment and decree dated 10-11-1994. Keeping in view this fact, instead of remanding the case to the First Appellate Court, I intend to decide the revision petition myself after perusing the record to avoid inconvenience to the parties. Keeping in view the principle of preponderance and by excluding the statement of Arshad Ali; D.W.1, as stated by the learned counsel of the respondents, the question arises whether the petitioner has proved the Talbs in accordance with the provisions of the Pre-emption Act or not. It is better and appropriate to reproduce the material contents of the plaint, written statement and portions of the evidence on record:-- In case the aforesaid facts are put in juxta position then it is crystal clear that the petitioner/plaintiff fails to prove the contents of para 2 of the plaint, meaning thereby the statement of the aforesaid witnesses were recorded on 16-11-1993. The date of knowledge according to their statements is 11-1/2 months prior to this date which clearly establishes that the petitioner/plaintiff acquired the knowledge of the sale in January, 1993 or on the 31st day of December, 1992 which is as mentioned above is not in accordance with the contents of the plaint. In fact it is in clear contradiction to the averments of the plaint wherein the date of knowledge specifically mentioned in para 2 as 30th October, 1992 therefore, the petitioner/plaintiff fails to prove the Talbs in terms of the mandatory provisions of the Punjab Pre-emption Act, 1991. It is also admitted fact that the respondents purchased the land in-question through registered sale-deed. It is settled principle of law that registered sale-deed is notice qua this transaction to the whole of the world, of course, same is rebuttable but rebuttal must be based on strong evidence. It is also admitted fact that the petitioner/plaintiff has taken a stand that he sent a written notice to the respondents/defendants through registered post on 2-12-1992. The petitioner has not brought on record the original copy of the notice, photocopy was placed on record which is not permissible in evidence. It is also admitted fact that petitioner did not file any application to prove the Talb-e-Ishhad through secondary evidence. No doubt in case the sale transaction was kept in dark then suit is competent before the civil Court from the date of knowledge. In the present case, the petitioner/plaintiff fails to prove on record that he had made Talbs within the prescribed period from the date of knowledge in terms of section 13 of the Punjab Pre-emption Act.

8. In view of what has been discussed above, it is crystal clear that the petitioner fails to prove Talb-e-Mawathibat which is condition precedent to file a suit for pre-emption by virtue of section 13(3) of the Punjab Pre-emption Act, 1991. Furthermore it cannot be denied that the factum of making Talb-e-Mawathibat is primarily a question of fact and in this regard the concurrent findings arrived at by both the Courts below against the petitioner/plaintiff specially the trial Court has given findings of fact against the petitioner/plaintiff after proper appreciation of evidence on record. It is settled proposition of law that when both the Courts below have given finding of fact after proper appreciation of evidence on record then this Court has no jurisdiction to interfere unless and until the same is result of misreading or non-reading of the record. Learned counsel of the petitioner failed to point out any portion of evidence which was misread by both the Courts below. Petitioner failed to prove Talb-e-Mawathebat on the basis of the evidence on record which is condition precedent to file pre-emption suit. As mentioned above, in the present case, petitioner failed to prove on record that he fulfilled the requirements of Talb-e-Mawathebat in accordance with section 13(3) or the Punjab Pre-emption Act. It is settled principle of law that findings recorded by the Court of competent jurisdiction cannot be interfered with by the High Court, in exercise of its revisional jurisdiction, under section 115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material irregularity as the principle laid down by the Privy Council in N. S. Venkatagiri Ayyangar and another v. The Hindu Religions Endowments Board, Madras PLD 1949 PC

26. Relevant observation is as follows:-- "This section empowers the High Court to satisfy itself upon three matters; (i) That the order of the subordinate Court is within the jurisdiction. (ii) That the case is one in which the Court ought to exercise jurisdiction. (iii) That in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have effected the ultimate decision. If the High Court is satisfied upon these matters, it has no power to interfere because it differs, however, profoundly, from the conclusion of the subordinate Court upon questions of fact or law." It is pertinent to mention here that petitioner/plaintiff failed to prove Talbs in terms of the Pre-emption Act, therefore, there is no need to render decision qua interpretation of section 20 of the Punjab Pre emption Act, 1991. No jurisdiction defect has of course, been pointed out in this case. Similarly no legal infirmity in the impugned judgments have been alleged. In view of the aforesaid discussion, there is no merits in this revision petition and the same is dismissed with no order as to costs. S.A.K./A-809/L Petition dismissed.