2005 PLP 803 (CLC)

I intend to dispose of the following revision petitions by one consolidated judgment having similar facts and circumstances:-- (1) C.R. No.2089 of 2004, (2) C.R. No.2090 of 2004, (3) C.R. No.2091 of 2004, (4) C.R. No.2092 of 2004, (5) C.R. No.2093 of 2004, (6) C.R. No.2630 of 2004, (7) C.R. No.2631 of 2004, (8) C.R. No.2632 of 2004, (9) C.R. No.2633 of 2004 and (10) C.R. No.2634 of 2004.

2. The brief facts out of which the aforesaid revision petitions arise are that original owners sold the land in question to the respondent in revision petitions mentioned at S.Nos.1 to 5 above. There were five sales which are detailed as under:-- (i) Subject-matter of Revision Petition at S.No.1 is sale of land measuring 13 Marlas vide Mutation No.3529, dated 18-11-1997 for a consideration of Rs.7,000 but in order to prevent the suit for pre-emption sale price was mentioned as Rs.20,000. (ii) Subject-matter of Revision Petition No. at S.No.2 is sale of land measuring 4 Kanals, 13 Marlas vide Mutation No.3530, dated 18-11-1997 for a consideration of Rs.50,000 but in order to prevent the suit for pre-emption sale price was mentioned as Rs.1,45,000. (iii) Subject-matter of Revision Petition at S.No.3 is sale of land measuring 4 Kanals, 16 Marlas vide Mutation No.3534, dated 18-11-1997 for a consideration of Rs.52,000 but in order to prevent the suit for pre-emption sale price was mentioned as Rs.1,50,000. (iv) Subject-matter of Revision Petition at S.No.4 is sale of land measuring 4 Kanals, 16 Marlas vide Mutation No.3532, dated 18-11-1997 for a consideration of Rs.52,000 but in order to prevent the suit for pre-emption sale price was mentioned as Rs.1,50,000. (v) Subject-matter of Revision Petition at S.No.5 is sale of land measuring 4 Kanals, 13 Marlas vide Mutation No.3531, dated 18-11-1997 for a consideration of Rs.50,000 but in order to prevent the suit for pre-emption sale price was mentioned as Rs.1,45,

000. The petitioner in Revision Petitions at S.Nos.1 to 5 filed suit for pre-emption against the respondent in all the aforesaid revision petitions in the Court of Civil Judge 1st Class, Mandi Bahauddin. The contents of the plaints reveal that no notice of sale was affixed in terms of section 31 of the Punjab Pre-emption Act. The petitioner/plaintiff claimed to have superior right of pre-emption on the ground that he was co-sharer in Khata and co-sharer in watercourse and passage. The contents of the plaint further reveal that petitioner acquired knowledge of aforesaid sales on 27-11-1997 through Sher Muhammad son of Ghulam Qadir in presence of Haji Sultan Ahmad at 10 a.m. who immediately expressed his intention to pre-empt the sales. Thereafter he secured copy of Jamabandi from Revenue Patwari and he fell ill. He could not issue notice of Talb-i-Ishhad immediately. On 2-12-1997 along with two truthful witnesses he issued notice of Talb-e-Ishhad to the respondent/ defendant who received but failed to reply.

3. The respondent filed written statement and controverted the allegations levelled in the plaint. Out of the pleadings of the parties following issues were framed:-- (1) Whether the plaintiff has superior right of pre-emption qua the defendant? OPP (2) Whether the suit-land was sold for Rs.7,000? OPP (3) Whether the ostensible sale price of Rs.20,000 was fixed in good faith or actually paid? OPD (4) If Issues Nos.2 and 3 are not proved, what was the market value of the suit-land at the time of sale? OPD (5) Whether the plaintiff validly performed the requisite Talbs in exercise of his superior right of pre-emption? OPD (6) Whether the plaintiff has waived his right of pre-emption? OPD (7) Whether defendant is entitled to receive incidental charges of impugned sale, if so, how much? OPD (8) Relief. All the issues are exactly similar in all the cases except Issues Nos.2 and 3 in which sale consideration is mentioned as in each case according to the averments of the parties in the suit. The learned trial Court decreed the suits vide judgment and decree, dated 25-3-2004. Issues Nos.1 to 6 were decided in favour of the petitioner/plaintiff and Issue No.7 in favour of respondent/defendant vide judgments and decrees dated 25-3-2004. The respondent/defendant being aggrieved filed five appeals in the Court of Additional District Judge who partly accepted the appeals vide impugned judgments and decrees dated 22-7-2004 wherein First Appellate Court maintained the finding of the trial Court on Issues Nos.5 and 6 and reversed the finding of the trial Court on Issues Nos.2 to

4. The petitioner/plaintiff filed revision petitions mentioned at S.Nos.1 to 5 in para. 1 of this judgment with regard to reversing the findings of the First Appellate Court on Issues Nos.2 to 4 whereas the respondent/ defendant filed revision petitions at S.No.6 to 10 in para.1 against the judgments of both the Courts below on Issues Nos.5 and 6.

4. Learned counsel of the petitioner/plaintiff in revision petitions at S.Nos.1 to 5 submits that First Appellate Court has reversed the finding of the trial Court without adverting to the reasoning of the trial Court. He further urges that First Appellate Court reversed the finding without reappraisal of evidence on record and, therefore, the same is decided by the First Appellate Court without judicial application of mind. He further submits that revision petitions mentioned at S.Nos.6 to 10 filed by the respondent/defendant are liable to be dismissed as both the Courts below have given concurrent finding of fact against the respondent/defendant after proper appreciation of evidence. This Court has very limited jurisdiction to interfere in concurrent finding of the Courts below while exercising power under section 115, C.P.C.

5. Learned counsel of the petitioner in revision petitions mentioned at S.No.6 to 10 and respondent in revisions petitions mentioned at S.No.1 to 5 submits that both the Courts below have decided the case against the respondent/defendant on Issues Nos.5 and 6 by misreading and non-reading of evidence on record. He heavily relied upon following portion from cross-examination of Nadir Ali P.W.1, Shera P.W.2, Sultan Ahmad P.W.3 and Bashir Ahmad D.W.2:-- Urdu 807 He further urges that First Appellate Court reversed the finding of the trial Court on Issues Nos.2, 3 and 4 with cogent reasons after reappraisal of the evidence which is the prerogative of the First Appellate Court while deciding the appeal under section 96, C.P.C. which is also in consonance with the mandatory provisions of sections 27 and 28 of Punjab Pre-emption Act, 1991. He further submits that Talbs are not proved by the respondent/plaintiff in accordance with law. The witnesses of the respondent/plaintiff are at variance in their statements on all material points qua Talbs, therefore, judgments of both the Courts below while rendering findings on Issues Nos.5 and 6 are not sustainable in the eyes of law.

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

7. It is better and appropriate to reproduce the operative part of the judgment of the First Appellate Court to resolve the controversy between the parties:-- (9) As regards superior right of the respondent it is an admitted fact that he is a co-sharer in the Khewat of suit-land. Secondly the respondent in the plaint specifically named the informer of sale, date, time and place of making Talbs and execution of notice of Talb-e-Ishhad. The appellant did not specifically deny non-receipt of notice of Talb-e-Ishhad which was sent to him through registered post. Post receipt has been produced as Exh.P.2. though the acknowledgment due has not been exhibited in evidence but is available on record and bears the signatures of appellant which are identical to his signatures on the written statement. The witnesses of Talb-e-Muwathibat and Talb-e-Ishhad have proved that Talbs were validly made, their statements do not suffer from any material discrepancy, therefore, I find that issue of Talbs was rightly decided by the learned trial Court in favour of the respondent. (10) The learned counsel for the appellant has vehemently challenged the findings of learned trial Court on issues regarding sale price and market value of the suit-land. The sale mutation carries sale consideration of Rs.20,000 while the respondent claimed that it was purchased for Rs.7,000 which was its market value. The respondent as D.W.1 and his witness D.W.2 had supported the sale price as incorporated in the disputed mutation. D.W.2 has deposed that he is witness of the mutation of disputed sale which fact is proved from copy of mutation Exh.P.3. The learned trial Court relying upon certain mutations for the determination of market value of the suit-land but their mutations do not fulfil the requirement of section 28 of Punjab pre-emption Act, 1991. These mutations do not show that they relate to contiguous land of the suit-land or of the same kind. Therefore, I find that the learned trial Court illegally worked out the market value of the suit-land, therefore, its findings on Issues Nos.2, 3 and 4 are reversed and it is held that the suit-land was in fact sold for Rs.20,000 which sum was actually paid to the vendor. Mere reading of the aforesaid paragraphs clearly reveals that the First Appellate Court has reversed the finding of the trial Court on Issues Nos.2 to 4 without adverting to the reasoning of the trial Court which is condition precedent as the law laid down by the Honourable Supreme Court in Madan Gopal s case PLD 1969 SC

617. The relevant observation is as follows:-- The learned Appellate Court, however, accepted these receipts without adverting to the very cogent reasoning given by the trial Judge for their rejection. The High Court was, therefore, right in its view that a finding reached by the First Appellate Court which totally ignored the reasons given by the trial Judge for a contrary findings, could not be upheld in second appeal. It is settled principle of law that it is the duty and obligation of the Presiding Officer to decide the controversy between the parties after application of mind but the First Appellate Court has decided the case without judicial application of mind which is not in consonance with the law laid down by the Honourable Supreme Court in Mollah Ejahar Ali s case PLD 1970 SC

173. The relevant observation is as follows:-- "To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying `there is considerable in the substance in the petition which is accepted', should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance." The aforesaid view was also taken by the Honourable Supreme Court in Gouranga Mohan Sikdar v. Controller of Import and Expert PLD 1970 SC

158. It is settled principle of law that judgment of the Honourable Supreme Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of the Constitution. It is also settled principle of law that in case the First Appellate Court has decided the case in violation of the parameters prescribed by the Honourable Supreme Court then it is as material irregularity and this Court has ample jurisdiction to interfere while exercising power under section 115, C.P.C. as the law laid down by the Honourable Supreme Court in the following judgments:-- Kanwal Nain s case PLD 1983 SC 53 and Shaukat Nawaz s case 1998 SCMR 851.

8. As regards the findings of the First Appellate Court on Issues Nos.5 and 6 are concerned those are without reappraisal of the evidence on record specially the portions of evidence pointed out by the learned counsel of the petitioner in revision petitions mentioned at S.Nos.6 to 10 in para.1 above. In fact the First Appellate Court has countersigned the finding of trial Court which is not sustainable in the eyes of law as per law laid down by the Honourable Supreme Court in Ghulam Mohy-ud-Din s case PLD 1964 SC 829.

9. In view of what has been discussed above, the judgment of the First Appellate Court is not in accordance with the law laid down by the superior Courts. Therefore, the same is not sustainable. I do not decide the revision petitions myself after reappraisal of evidence as by doing so one of the parties will lose right of revision before this Court as well as this Court will not be benefited by the finding of the First Appellate Court. In this view of the matter, all the revision petitions are accepted and impugned judgments of the First Appellate Court are set aside. Meaning thereby the appeals filed by the respondent/defendant shall be deemed to be pending adjudication before the First Appellate Court. The parties are directed to appear before the First Appellate Court on 10-3-2005 who is directed to decide the appeals afresh without being influenced by the observations of this Court after reappraisal of evidence on record after application of mind within six months after receiving the order of this Court. The parties are directed to cooperate with the First Appellate Court so that the appeals may be decided within the prescribed period. In case any of the party/its counsel fails to cooperate with the First Appellate Court then the First Appellate Court shall invoke the penal provisions against said party. M.B.A./N-18/L Order accordingly.