1991 PLP 676 (MLD)

(d) Punjab Pre-emption Act (I of 1913)

S.15

Civil Procedure Code (V of 1908), O.III, Rr. 1, 2 & S.115

Revisional jurisdiction, exercise of

Concurrent finding of fact by Courts below that special attorney was authorised to file suit for pre-emption on behalf of pre-emptor-- Finding of Courts below did not suffer from misreading/non-reading of evidence

No illegality, material irregularity or jurisdictional defect in judgments and decrees of Courts below was found

No justification to interfere therewith, in revisional jurisdiction. Kh. Habib Ullah for Petitioners. Ch. M. Abdullah Bajwa for Respondent. Date of hearing: 1st October, 1990. On 24-6-1972, Muhammad Sharif respondent filed a suit for possession by pre-emption against Mst. Zohra Begum and Mst. Aysha Bibi petitioners on the basis of being collateral and owner in the estate, in the Court of Senior Civil Judge Sialkot. The suit was resisted. Ten issues were framed and the parties led their evidence. Respondent/plaintiff appeared as P.W.

2. He produced Ghulam Nabi P.W. 1, Syed Ghulam Hussain P.W.3, Zaheer Ahmed, his Special Attorney, as P.W.4. He tendered in evidence copy of mutation Ex. Pl, copy of Jamabandi Ex.P2, copy of Naqsha field Book Ex.P3 and the notice served by him to the defendant Ex.P4, copy of Jamabandi Ex.P5. "To rebut this evidence, the defendants/petitioners produced Muhammad Arshad Advocate/Notary Public, as D.W.1, Mr. Fayyaz Mukhtar, Advocate/Local Commissioner, D.W. 2, Naqsha Nawees namely Sh. Fazal-ur-Rehman D.W.3, Muhammad Sharif D.W. 4, Muhammad Shafi D.W.5, Allah Rakha D.W.6 and Muhammad Siddiq D.W.7, Muhammad Sharif, Special Attorney of Mst. Zohra Begum, defendant, appeared as D.W.

8. He tendered in evidence documents Exs. D1, D2, D2/1 and D3/

3. The trial Court vide judgment dated 16-9-1976 decreed the suit. The appeal filed by the petitioners/defendants against this judgment and decree was dismissed by the learned Additional District Judge, Sialkot on 12-10-1982, hence this revision.

2. Before me, the learned counsel for the petitioners has challenged the findings of the Courts below on issues Nos. 1, 2 and 9-A, which are as under:-- "(1) "Whether the plaint is liable to be rejected in pursuance of preliminary objection No.1 in the written statement? (2) Whether the suit has been properly instituted? If not, to what effect? (9-A) Whether the suit land was urban immovable property before its sale? Preliminary objection No.1 was as follows:

3. Learned counsel for the petitioners argued that the findings of the Courts below on issue No.9-A suffer from misreading/non-reading and misinterpretation of the documentary evidence on record; that the inspection by the Local Commissioner has totally been ignored; that it is fully established on record that matalled roads, buildings, shops, factories, schools, Banks, Markets and Bazars are situated around the disputed plot and it is situated on the outskirts of Sialkot City. So the property being urban immovable property, the suit could not have been decreed on the superior right of pre-emption stated in section 15 of the Punjab Pre-emption Act, 1913. Reliance is placed on PLD 1961 Lah. 47, PLD 1975 Lah.

359. Learned counsel further argued that Special Power of Attorney Ex. D1 executed by the plaintiff in favour of Zaheer Ahmad does not authorize the latter to file suit for pre-emption in respect of the disputed plot. Learned counsel further argued that the power of attorney Ex.D1 has neither been strictly perused nor has properly been considered in accordance with the rules of construction of power of attorney laid down in AIR (39) 1952 Punjab 99; AIR (37) 1950 Bombay 130 and AIR 1952 Madras

561. He argued that when strictly perused, it becomes clear that Ex. Dl simply confers powers with regard to the management of other land of respondent/plaintiff; that special power of attorney Ex.D1 does not give any power to the attorney to file bond as personal security. The trial Court had directed the plaintiff to furnish personal security, so no one else including his special attorney could furnish the bond; that at the time of the attestation of Ex. Dl, no note authorising the institution of pre-emption suit was there and it was subsequently added with a different pen and ink; that the trial Court had allowed the respondent/plaintiff to furnish security instead of depositing Zar-e-Panjam. However, the security has not been furnished by the respondent/plaintiff, instead special attorney put in security in violation of the provisions of section 22 of the Pre-emption Act, and as such, the plaint should have been rejected on this ground. Conversely, the learned counsel for the respondent has supported the impugned judgments and decrees.

4. I have carefully considered the arguments addressed by the learned counsel for the parties. I do not feel persuaded to agree with the learned counsel for the petitioners. I find that the suit land was sold on 26-4-1972. The statements of the witnesses produced by the petitioners/defendants with regard to the status/nature of the property were recorded in the year 1976. The witnesses have deposed about the status and nature of the suit land as it was at the time of their evidence and not as it was in the year 1972. No serious attempt was made to prove the status of the suit property at the time of sale. This being the position, no exception can be taken to the findings arrived at by the Courts below on issue No. 9-A. The learned trial Court was quite competent to direct the respondent/plaintiff to give security instead of depositing 1/5th of the probable value of the land. The trial Court had required the respondent/plaintiff to give security to the satisfaction of the Court. There was no legal bar for special attorney to give security under section 22 of the Punjab Pre-emption Act, 1913. The word "sukhsi zamanat" does not mean security by the plaintiff himself. It includes security by a person other than the plaintiff. So the plaint could not have C been rejected on special attorney's furnishing security under section 22 of the Punjab Pre-emption Act. The Courts below have concurrently found the note given in power of attorney Ex.D1 authorising Zaheer Ahmad to file the instant suit for pre-emption as genuine. The findings of the Courts below in this respect do not suffer from misreading/non-reading of evidence. If the note given in the special power of attorney Ex. D1 is believed to be genuine then there remains no doubt that Zaheer Ahmad was fully authorised to file suit and the present suit has properly been instituted. I do not see any illegality, material irregularity or jurisdictional defect in the judgments and decrees of the Courts below. The submissions made by the learned counsel for the petitioners before this Court are devoid of force and substance. Pursuant to the above discussion, the revision application fails and is accordingly dismissed. The parties shall bear their own costs. A.A./Z-187/L Revision dismissed.