2009 PLP 880 (CLC)

MUHAMMAD ALAM KHAN, J.

Muhammad Afzal has brought the instant civil revision against Allah Bakhsh and others through which he has challenged the concurrent findings recorded by the trial Court and duly maintained by the appellate Court.

2. Necessary facts of the case are that Muhammad Afzal plaintiff-petitioner filed a suit for possession through pre-emption of land measuring 5 Kanals, 10 Marlas equivalent to 110/136 shares out of 6 Kanals, 16 Marlas situated in village Kurrar, Tehsil and District D.I. Khan as per Jamabandi for the years, 1989-90 and the sale was termed to be effected through oral sale.

3. The defendants-respondents were summoned who submitted their detailed written statements in which the allegations contained in the plaint were hotly contested. It was asserted that they have purchased the suit-land on sale consideration of Rs.10,000 per Kanal and the total sale consideration comes to Rs.55,

000. It was further averred that the sale has in fact taken place in 1993 regarding which mutation was duly entered but subsequently the vendor got hostile resulting in cancellation of the mutation. It was also averred that the defendants-respondents remained in continuous possession since 1993. Out of divergent pleadings of the parties, the learned trial Court framed as many as ten issues including the relief.

4. The parties produced their respective evidence as they wished to adduce and the learned trial Court, after scanning the evidence and taking into consideration the data available on the record, vide Suit No.181/1 decided on 25-2-2003, dismissed the same.

5. The plaintiff-petitioner then filed an appeal which came for hearing before Muhammad Riaz Khattak, Additional District Judge-III, D.I. Khan and the learned appellate Court, after perusing the record, dismissed the appeal vide judgment, dated 22-7-2004. Hence, the instant revision petition.

6. Mr. Nasrullah Khan, learned counsel appearing on behalf of the plaintiff-petitioner submitted that the petitioner had duly proved the factum of performance of Islamic demands as envisaged under the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987 and thus, the learned trial Court, without just and reasonable cause, has misread the evidence in its true perspective. It was also argued that the limitation will not run in this case from the date of possession but the same will start from the date of attestation of mutation and the suit having been filed within the stipulated period of limitation, was well within time. Reliance in this respect was placed on the cases of Kala Khan v. Ayub Khan 1992 MLD 536, Taj Malook. v. Mst. Zaitoon and others PLD 1994 SC 356 and Amir Jan v. Ghulam Muhammad PLD 1997 SC 883.

7. On the other hand, Mr. Khuda Bakhsh Khan Baloch, learned counsel appearing on behalf of the respondents submitted that the learned two Courts below have recorded concurrent findings of facts which cannot be set at naught by this Court on its revisional jurisdiction. It was also submitted that pursuant to the sale in dispute, the vendee-defendant had taken possession of the suit-land prior to the attestation of the mutation and to this effect, an entry was incorporated in Khasra Girdawri, thus, the starting point will be from the date of taking over of possession of the suit property and not of the attestation of the mutation. Reliance in this respect was placed on the case of Din Muhammad v. Subedar M. Zaman 2001 SCMR 1952.

8. I have given my anxious consideration to the facts of the case and have minutely scanned the available evidence.

9. Perusal of the record reveals that the suit transaction was incorporated in Mutation No.1004 and the possession was handed over to the vendee-defendant Noel after the suit-land was duly measured and the possession delivered to the vendee. It is important that all the witnesses including the vendor. D. W.1 Allah Bakhsh stated that he sold the suit-land to defendant-respondent No.1 on sale consideration of Rs.3,763 and the possession was duly delivered to the vendee. This mutation was subsequently dismissed by the Revenue Authorities due to the connivance of defendant No.3 with the plaintiff. This fact was categorically admitted by P.W.2 Bashir Ahmad Patwari Halqa that possession was transferred to the vendee-defendant-respondent No.1 prior to the entry of the said mutation. The plaintiff-petitioner in the plaint, the opening sentence, admitted that sale has taken place and possession has been delivered to respondent No.1. It is on the record that P.W.5. Ghulam Hussain also admitted this fact that the moment the possession was delivered to the vendee, he informed the plaintiff regarding the impugned sale and the factum of possession is duly entered in Khasra Girdawri Exh.P.W. 2/2 in the capacity of vendee/purchase. Thus, the petitioner was in the know of the transaction as admitted by all the P.Ws. Thus, the Islamic demands were not performed in time and right of the petitioner stood extinguished under section 13 of the N.-W.F.P. Per-emption Act, 1987.

10. Perusal of the record reveals that the plaintiff, while filing the suit on 9-1-1994, has not mentioned the date, time, place ,name of the informer in the plaint nor the same was proved in evidence. By now it is a settled principle of lam enunciated by the apex Court that the date, time, place and name of the informer must be mentioned in the plaint specifically and should also be proved during evidence. Having not done so in the instant cases, the Islamic demands as envisaged under section 13 of the N.-W.F.P. Pre-emption Act, 1987 have not been complied with in view of the dictum handed down in the case of Muhammad Iqbal, v. Ali Sher 2008 SCMR 1682.

11. The learned two Courts below have recorded concurrent findings of facts. No misreading and non-reading has been pointed out by learned counsel for the petitioner so as to warrant interference by this Court in its revisional jurisdiction in view of the dicta handed down in the cases of Abdur Rahim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Haji Muhammad Din, v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed Ahmad v. Muhammad Siddique PLD 2002 SC 293.

12. In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed. H.B.T./92/P Petition dismissed.