2011 PLP 1189 (YLR)

CH. MUHAMMAD TARIQ, J.

This civil revision has been directed against the judgment and decree dated 4-5-2005 passed by learned Addl. District Judge, Mandi Bahauddin, who accepted the appeal and set aside the judgment and decree of the learned trial court.

2. Brief facts of the case as narrated in the civil revision are that on 19-4-1999, petitioner tiled a suit for possession through pre-emption with regard to the suit-land fully described in plaint on the ground that the petitioner/plaintiff has got a superior right of pre-emption against the vendee/ defendant. The petitioner/plaintiff performed "Talbs" as required under the law. Therefore, the suit of the petitioner/ plaintiff be decreed with costs.

3. The suit was resisted by respondents who tiled written statement and raised a number of preliminary objections on the point of law as well as facts.

4. That out of divergent pleadings of the parties, following issues were condensed:-- ISSUES (1) Whether the suit is based on contradictory pleas thus is not maintainable? OPD (2) Whether the plaintiff is estopped by his words and conduct to tile the suit'? OPD (3) Whether the defendant is entitled to recover incidental charges with sale amount if the suit is decreed and to what extent'? OPD (4) Whether a sum of Rs.16,000 was fixed in good faith and was actually paid as sale price of the suit-land? OPD (5) If issue No.4 is not proved then what was the market value of the suit-land at the time of sale'? OPPs (6) Whether the plaintiff has a superior right of pre-emption qua the defendants? OPP (7) Whether the plaintiff has fulfilled the requirements of talbs under the law? OPP (8) Relief.

5. That after perusal of pleadings and evidence of the parties, learned trial court vide judgment and decree dated 21-10-2004 dismissed the suit. The petitioner/plaintiff filed an appeal which was accepted on 4-5-2005, hence this civil revision.

6. Learned counsel for the petitioner inter alia contends that the impugned judgment and decree is result of misreading and non-reading of evidence. The petitioner/plaintiff has fulfilled all the three 'Talbs' as provided under the law. The witnesses remained constant despite lengthy cross-examination, but this fact was not taken into consideration by the learned first appellate court while passing the impugned judgment and decree. Learned counsel has further contended that notice 'Talb-e-Ishhad' was duly served upon Mst. Khalida Parveen, respondent No. 2, which is Exh.P6, but the learned first appellate court ignored this aspect which is a nullity in the eyes of law. Therefore, civil revision be allowed, impugned judgment and decree be set aside and the judgment and decree passed by learned trial court be restored.

7. Conversely, learned counsel for the respondents/defendants has vehemently opposed this civil revision and has prayed that it be dismissed.

8. Arguments heard. Record perused.

9. According to the plaint, the suit-land was sold vide Mutation No.832 dated 1-2-1999 for a consideration price of Rs.80,000, but to defeat the superior right of pre-emption of plaintiff, a fake price of Rs.1,60,000 was shown on the face of mutation. 01 121-3-1999, at 8-00 p.m. when the petitioner/plaintiff was sitting in the house of Nadir Khan, he came to know about the sale of suit-land where he announced that the petitioner/plaintiff has a superior right of pre-emption against the respondents, therefore, he will exercise his superior right of pre-emption and this way he performed 'Talb-e-Muwathibat and further the petitioner got prepared through Advocate notice 'Talb-e-Ishhad' which were sent to respondents.

10. According to the contents of plaint, petitioner/plaintiff came to knowledge about the sale of suit-land on 21-3-1999 at 8-00 p.m. while he was sitting in the house of Nadir Khan P.W.3. Perusal of record reveals that during cross-examination P.W. Qadar Dad has admitted that he came to know about the sale of suit property on the day when it was sold and on the same day/night the defendants had raised construction over the suit property. The performance of 'Talb-e-Muwathibat' is further contradicted by P. W.2 Muhammad Hussain who in his examination-in-chief has deposed that petitioner/plaintiff performed 'Talb-e-Muwathibat' on the evening of 24-3-1999. Further during the arguments learned counsel for the petitioner has frankly admitted that notice of 'Talb-e-Ishhad' was not formally exhibited during evidence. The arguments of learned counsel for the petitioner that Exh.P6 which is copy of acknowledgement duly proves that respondent No.2 Mst. Khalida Parveen received the notice 'Talb-e-Ishhad' is not sustainable in the eyes of law because it could not be imagined that the register post envelop sent to Mst. Khalida Parveen respondent No.2 was containing notice 'Talb-e-Ishhad'. Particularly .when the respondents/defendants had refused the performance of 'Talb-e-Ishhad' in the pleadings, there is no cavil that in the interest of justice, a document which is not duly exhibited but placed oil file could be looked into as argued by the learned counsel for the petitioner, but a non-exhibited document could not be used against the valuable rights of the parties. Although, alleged notice 'Talb-e-Ishhad' reduced in the name of respondent No.2 is annexed with the file but no inference could be derived against the respondents/defendants as it was not duly exhibited and remained in the custody of petitioner/ plaintiff.

11. The result of above discussion is that petitioner/plaintiff failed to perform 'Talb-e-Muwathibat' as well as 'Talb-e-Ishhad'. The first appellate court has rightly accepted the appeal and has set aside the judgment and decree passed by learned trial court. This civil revision is without any substance which is accordingly dismissed. No order as to cost. M.U.Y./Q-15/L Revision dismissed.