2014 PLP 318 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Brief facts germane for the disposal of revision petition are that the petitioner filed suit for possession through pre-emption which was dismissed by the learned trial Court vide judgment and decree dated 12-9-2012. The petitioner filed an appeal before the learned appellate court which was also dismissed vide judgment and decree dated 15-8-2013. Feeling aggrieved, the respondents have assailed the said findings through this revision petition.

2. The learned counsel for the petitioner contends that the learned courts below have acted in exercise of jurisdiction illegally and caused material irregularity. Further contends that both the judgments under question are illegal, without jurisdiction and against the law and facts of the case. Also contends that both the learned courts below proceeded on wrong assumption as to the material facts on the controversy between the parties.

3. Arguments heard. Record perused.

4. The pivotal issue which was decided by both the learned courts below against the petitioner is issue No.2, which is as under:

`Whether the plaintiff has fulfilled all requisite Talbs of pre-emption according to provisions of law? OPP

5. The petitioner/plaintiff alleged in the paragraph No.3 of the plaint, which reads as under

6. To prove the said issue No.2 and the assertion narrated supra, the petitioner/plaintiff appeared himself as P.W.1 and asserted that the sale was disclosed to him by Muhammad Tufail, the other P.W. at 2/2-30 in the Noon on 23-12-2005 and then he made his jumping demand while performing Talb-e-Muwathibat in presence of Allah Ditta and Wali Muhammad. The plaintiff/petitioner as P.W.1 has not stated any word regarding the delivery of notice of Talb-e-Ishhad to the defendants.

7. Keeping in mind the statement of the plaintiff, when this court scanned the statement of P.W.2 Muhammad Tufail, the informer, he states in the cross-examination which reads as under:

The said witness also did not disclose anything regarding the delivery of the notice of Talb-e-Ishhad to the respondents/defendants.

8. The other witness, Wali Muhammad, P.W.3 has frankly stated in the examination-in-chief that no notice was read over to him. The said portion of his testimony is reproduced hereunder:

He further stated during his cross examination as under:

9. According to the version of the plaintiff and his statement, the alleged disputed sale came into the knowledge of the plaintiff in the end of month of December, 2005, i.e. on 23-12-2005, whereas, while scanning the evidence available on the record, the portion of statement of P.Ws.2 and 3, which is referred above, it has come to the light that plaintiff was informed about the disputed sale in the season of summer. Such contradiction in the statements of plaintiff and P.W.2 and P.W.3 cannot be considered to be minor or clerical. Such contradiction speaks the volume that the plaintiff managed a concocted story regarding the performance of Talb-e-Muwathibat. The learned courts below rightly observed that plaintiff/petitioner failed to perform Talb-e-Muwathibat.

10. Now coming to the performance of Talb-e-Ishhad, it is well settled law now that not only the plaintiff is required to prove the sending of the notice of Talb-e-Ishhad to the defendant, but it is a so obligatory upon the plaintiff to prove the delivery of the notice to the defendant. This fact is also not proved on the file through the evidence of the plaintiff. In this regard reliance can be placed on "2011 SCMR 762", "2007 SCMR 1105" and "2013 SCMR 721".

11. Further the defendant/respondent through their written statement and while appearing as D.W.1 categorically denied the receipt of notice of Talb-e-Ishhad. The said portion of examination-in-chief of D.W.1 was not put to cross-examination by the petitioner. It is a settled principle of law that if a portion of statement in-chief is not cross-examined, then such portion deemed to be admitted by the other side. In this regard reliance can be placed on dictum laid down by apex Court is on "PLD 2011 Supreme Court 296".

12. The impugned judgments and decrees are not reflective of any misreading and non-reading of evidence, rather those are free from taint of mis and non-reading of evidence. The learned trial Courts below eminently passed the impugned judgments reasonably and proceeded with the cogent reasons.

13. Furthermore, the concurrent findings recorded by the learned courts below are not open to any exceptions. Safe reliance can be placed on "2007 SCMR 236" and "2011 SCMR 762".

14. Since concurrent findings of fact on face of record are neither arbitrary nor fanciful. The scope of revisional jurisdiction of this Court is restricted and narrower which is only meant for correcting errors of law committed by subordinate Courts, as there appears nothing wrong and both the learned courts below have passed the impugned judgments according to the material available on record. There is no merit in this civil revision which is hereby dismissed in limine. SAK/M-281/L Revision dismissed.