2007 PLP 484 (MLD)

MIAN SAQIB NISAR, J.

The noted C.R. No. 1411 of 2006 as also C.R. No.1412 of 2006 and C.R No.1413 of 2006 are being decided together, as these involve the common questions of law and facts.

2. In all these cases, the pre-emption suit relates to the sale of a shop. It is the case of the petitioner that he has a shop adjacent to the suit shop and had learnt about the sale on 6-8-1996 through Ch. Riaz Ahmad at his "Shop" (in the plaint in C.R. No.1413 of 2006 it is stated to be "Daira") at 7-00 p.m. and thereafter got issued the notice of Talb-e-Ishhad on 18-8-1996. The respondents denied the making of Talabs by the petitioner and also his superior right of pre-emption. Issues Nos. 1 and 2 in this behalf have been framed and both the Courts below while returning the findings on these issues against the petitioner have dismissed the suits.

3. Learned counsel for the petitioner contends that the findings of the Courts below are based upon misreading and non-reading of the evidence because the respondents/vendees have admitted in their own statements that the shop in question is adjacent to the shop of the petitioner and, therefore, he being the "Shafi-e-Jar" had the superior right of pre-emption, but the Courts below have ignored this vital aspect.--

4. I have heard the learned counsel for the parties. Undoubtedly, the two Courts below have not taken into account the above vital statement and I believe that the findings of the Courts below are not in accordance with law, therefore, the suit of the petitioner could not have been dismissed for the reason that he has failed to prove that his shop is not adjacent and that in this behalf, no documentary evidence has been given. It is settled law that the facts admitted by the adversary party need not to be proved and this principle is squarely applicable to the case in hand.

5. However, as regards the Talabs are concerned, in C.R. No.1413 of 2006, it is stated in the plaint that the petitioner had got the knowledge of the sale at his "Daira", but in the evidence he stated it to be at his "Shop". This is very material contradiction and no one, under the law, could be allowed to travel beyond the scope of his pleadings. Besides, in the other two connected cases, which are pertaining to the portions of the same shop, the petitioner stated that he learnt about the, sale at his "Shop". Obviously, the same sale by the same person informed through the same informer and at the same time cannot be learnt at two places i.e. one at the "Daira" and the other at the "Shop". Moreover, the petitioner's witness Riaz Ahmad, who is the informer and the so-called independent witness in this case has stated that he had met the petitioner and his son about 2 to 4 days after the disclosure of the sale, whereas when Tariq (son of the petitioner) appeared as a witness he stated that after 6-8-1996, Riaz has never met him till the date of the notice, dated 18-8-1996; while the petitioner-plaintiff in his statement deposed that he had informed his on Riaz when he came from his in-law's house after about 8 to 10 days, which means that it must be on 16-8-1996. All these statements, by putting together, suffer from the serious contradiction as highlighted above and I am convinced that the petitioner is not speaking the truth; thus, Talb-e-Muwathibat, in the facts and circumstances, does not stand proved. Resultantly, these petitions have no merits and are hereby dismissed. F.B./M-709/L Petitions dismissed.