2003 PLP 838 (CLC)

(3) Whether all the legal requisites were performed by the plaintiff before filing the suit? OPP (4) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD (5) Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD (6) Whether the plaintiff has waived his right of pre-emption? OPP ' (7) Whether the defendant is entitled to Rs.2,00,000 in case decree is passed for improvement of the land? OPD (8) Whether the suit is false and frivolous, if so, then whether the defendant is entitled to recover special costs from the plaintiff under section 35-A of C.P.C.? If so, what extent? OPD (9) Relief. The learned Civil Judge recorded a finding on Issue No.1 regarding superior right of pre-emption qua the defendant over the land in dispute, in favour of the petitioner. However, on issue No.3 it was observed that Talbs as required under the law have not been fulfilled by the plaintiff petitioner before filing the suit, therefore, finding on Issue No.3 was recorded against the petitioner. Finding on issue No.2 was also recorded against the petitioner and the learned Civil Judge observed that transaction is an exchange and not a sale. He dismissed the suit vide judgment and decree, dated 31-7-1997, The appeal filed there against the petitioner was also dismissed by the learned Additional District Judge on 3-5-2000.

6. The learned counsel for the petitioner has argued that the learned Civil Judge and the learned Additional District Judge despite giving a finding on Issue No. 1 in favour of the petitioner-plaintiff that he, enjoys the superior right qua the defendant over the suit-land has non-suited the petitioner on the following grounds:-- (a) That the transaction in question is an exchange; (b) that the petitioner has failed to perform Talbs in accordance with law; (c) Talb-e-Ishhad has not been made in accordance with law as the P.Ws. have admitted that respondent lived in Chak No.569/GB, Tehsil Jaranwala, but the notice of Talb-e- Ishhad was addressed at the address of Chak No.587/GB, Jaranwala. The learned counsel contends that all the above stated findings of the learned Civil Judge as well as of the learned Additional District Judge are the result of complete misreading of evidence. Reliance has also been placed on the case reported as:-- Muhammad Ajaib and another v. Muhammad Afzal and 2 others 1998 SCMR 2396.

7. On the other hand, the learned counsel for the respondent has argued that the petitioner has failed to prove Issue No.2 by cogent evidence and, therefore, both the Courts below have correctly held that the transaction In dispute is not a sale but in fact an exchange which was not pre-emptive. Further contends that the petitioner was not able to prove Talb-e-Muathibat and also Talb-e-Ishhad, therefore, the learned Civil Judge as well as the learned Additional District Judge has recorded a finding on fact on Issue No.3 against the petitioner by well-reasoned judgment which cannot be interfered with by this Court. Reliance has been placed on the case reported as Pir Walayat Shah v. Muhammad Shafi and another 1968 SCMR 1304.

8. There is no dispute about the fact that the petitioner has a superior right of pre-emption qua the defendant-respondent over the land in dispute and Issue No.1 has been decided in favour of the petitioner. The crucial point for determination in this case is whether the petitioner plaintiff Umar Khan was able to prove that transaction in dispute is not an exchange but a sale for consideration of Rs.3,42,

000. The evidence on the record is Mutation No.1347, Mutation No.35 and Mutation No.36, Exh.P.1 to Exh.P.3 produced by the petitioner-plaintiff, which clearly show that the land in dispute measuring 100 Kanals, 12 Marlas was actually sold by Faizullah to Abdul Ghaffar Khan and the mutation was attested on 20-5-1993. This land was, in fact, acquired by Faizullah Khan from Abdul Ghaffar Khan through Mutation No.35 and in exchange Faizullah Khan transferred to Abdul Waheed Khan son of Muhammad Yaqoob, Faizullah Khan transferred 100 Kanals, 12 Marlas of land in favour of Abdul Ghaffar Khan vide Mutation No. 1347 whereas Abdul Ghaffar transferred 111 Kanals and 12 Marlas 11 Kanals more than the actual land was transferred by Abdul Ghaffar. In this view of the matter, the device of exchange has apparently been introduced to defeat the superior right of pre-emption of the petitioner. The learned Civil Judge as well as the learned Additional District Judge has recorded a finding by misreading the evidence Exh.P.1 to Exh.P.9 on the record. Irresistible conclusion can be drawn that the transaction was in fact a sale and not an exchange. Both the learned Courts below were of the view that only the difference of market value between the suit-land and also the land transferred by defendant in exchange thereof cannot be made basis to arrive at the conclusion that the transfer in question was not an exchange. Similarly, no weight was given by the two Courts below to the fact that the land was transferred by the defendant to his real nephew Abdul Waheed. It is surprising that the land measuring 111 Kanals, which was exchanged through Mutations Nos.35 and 36, was valued at Rs.6 lacs, whereas the land in dispute, which has been pre-empted, has been shown for Rs.3,42,

000. Further if the land was exchanged by Faizullah and Abdul Ghaffar through Mutations Nos.35 and 36 and the same land was not to be retained, why this land, was transferred in favour of the defendant-respondent. From all the above circumstances, it cannot be concluded the transfer through the impugned Mutation No. 1347 dated 27-5-1993 was not an exchange but a sale. Therefore, the finding on Issue No.2, recorded by both the Courts below 'is the result of misreading of evidence, which is not sustainable and I reverse the same. The transaction in question took place on 27-5-1993, whereas Umar Khan petitioner has stated that he came to know about the same on 5-6-1993 through one Muhammad Zaman Khan, and also alleged that persons, namely, Ameer Muhammad Khan and Muhammad Aslam Khan were also present at that time. P.Ws.2, 3 and 4 are consistent in their statements, but the learned Civil Judge has misread the evidence and observed that the P.Ws. are not truthful witnesses. There is no dispute of the fact that notice was addressed by plaintiff-petitioner Umar Khan on the address which was given on the mutation. The address of the respondent-vendee on the envelop is not disputed. Notice Exh.P.W.2/1 is on the record. The learned Civil Judge has influenced himself by the date which has been given by the scribe on the notice Exh.P.W.2/1 dated 16-5-1993. This was a clerical mistake because on 16-5-1993 Mutation Nio.1347 was not even attested. The learned Civil Judge has observed that if the plaintiff had gained the knowledge about the transfer in question on 5-6-1993 then how could he get the notice Exh. P. W.2/1 written on 16-5-1993. The above observation of the learned Civil Judge as well as of the learned Additional District Judge is because of wrong date mentioned in the notice Exh.P.W.2/1. It is well- settled law that the registered post is presumed to have been received by A the defendant if the address on the envelop is correct. Suffice to say that the defendant-respondent has not denied his address on which the notice was sent by the petitioner to establish the Talb-e-Ishhad. In this view of the matter, the learned Civil Judge as well as the learned Additional District Judge has misread the documentary as well as oral evidence produced by the petitioner to establish Talb-e-Muwathibat and Talb-e- Ishhad. Since the concurrent findings of fact are the result of complete misreading of evidence, therefore, the same are set aside and the revision petition is accepted. The judgment and decree dated 3-52000 of the learned Additional District Judge and dated 31-7-1997 of the learned Civil Judge are set aside. Suit for possession through pre-emption filed by the petitioner-plaintiff Umar Khan is decreed with costs. Umar Khan is directed to deposit the remaining sale price, after deducting the amount already paid, within one month after the receipt of this order, failing which his suit shall stand dismissed. H.B.T./U-47/L Petition accepted.