2013 PLP 2521 (YLR)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 11-2-2013 passed by the learned ADJ, Pakpattan Sharif, whereby an appeal filed by him against the judgment and decree dated 3-2-2013 of the learned Civil Judge, Pakpattan Sharif dismissing his suit for possession through pre-emption, was dismissed.

2. The facts in brief as emerge on perusal of the record are that the petitioner filed a suit for possession of land measuring 0-marla 08-Sarsai fully described in Para No.1 of the plaint. It was contended that the disputed land was owned by one Syed Mahmood Ali Shah, who alienated it in favour of the predecessor of the respondents for a sum of Rs.90,000 but a fictitious sale price of Rs.1,40,000 was entered in the sale deed. According to him, his plot and the disputed plot are situated in the same Khata and are also adjacent to each other; that both the plots have common passage and as such he has superior right of pre-emption qua the predecessor of the respondents and the respondents, who do not possess any such qualification; that he attained knowledge about the sale at about 12-00/1-00 p.m on 20-9-2002 at Pakpattan Sharif and immediately made pronouncement then and there that he would file the suit for possession through pre-emption and thereafter, along with Haji Muhammad Amin and Muhammad Hanif approached the predecessor of the respondents with the request to transfer the plot to him but he refused so he sent a notice containing Talb-e-Ishhad through registered post AD.

3. The defendants / respondents contested the suit. After framing the issues and recording the evidence, the learned trial Court dismissed the suit. The appeal filed by the petitioner met the same fate.

4. The learned counsel for the petitioner has contended that the evidence on record clearly proves making of Talb-e-Muwathibat and Talb-e-Ishhad and as such the learned trial Court and the learned ADJ both erred due to misreading and non-reading of the evidence.

5. According to the plaintiff/ petitioner, he attained the knowledge about the sale on 20-9-2002 at about 12-00/1-00 p.m. at Pakpattan Sharif. In the plaint, he has neither disclosed the source from whom this knowledge was attained or the place where, he learnt about the sale and made Talb-e-Muwathibat although subsequently he tried to make out the case that he attained the knowledge in the mosque but it is an established law that the facts not specifically pleaded in the pleadings cannot be proved subsequently. The acknowledgment-due receipt has not been produced. It is not contended that it was not received back. In these circumstances, the requirement of sub section 3 of section 13 of the Pre-emption Act, 1991 is not fulfilled. Above all, the disputed land measuring 8-sarsai is a shop situated in Pakpattan Sharif City as per copy of Register of Rights Exh.P5 and copy of sale-deed Exh.P6, which is an urban area so it does not fall within the definition of immovable property as given under section 2(a) of the Punjab Pre-emption Act, 1991 so no right of pre-emption under section 2(c) of the Act ibid was available in this regard. The concurrent findings recorded by both the courts of competent jurisdiction are based on proper appraisal of the evidence available on the record and do not call for any interference in exercise of the revisional jurisdiction. The civil revision is without merits and the same is hereby dismissed in limine. JJK/M-148/L Revision dismissed.