2008 PLP 81 (MLD)

MIAN HAMID FAROOQ, J.

This single judgment shall decide the present revision petition (C.R. No. 2048 of 2003) and the connected petition (C.R. No.2049 of 2003), as common questions of law and facts are involved in both the petitions and' they have arisen out of identical judgments:

2. Ghulam Nabi alias Ghulam Muhammad, son of Suba, was owner of land measuring 27-Kanals, 2-Marlas (elaborately mentioned in the plaint) and he, out of the said total holding, sold 13-kanals, 11-Marlas, to the respondents in the present petition, and 13 Kanals, 11 Marlas to the respondents in the connected petition, for consideration of Rs.1,95,000 each, vide separate registered sale-deeds both, dated 20-2-1998. The petitioner, claiming his superior right to pre-empt the sale being co-sharers, filed two suits for possession through pre-emption, against the respondents, inter alia, pleading that the questioned land was sold secretly; actual value of the land is Rs.1,25,000, however, ostensible price of Rs.1,95,000 was got entered in the sale-deeds in order to defeat right of pre-emption; he came to know about the sale on 21-2-1998 through Muhammad Siddique at 7-00 p.m. at his "Bathak" and the pronounced "Talb-i-Muwatbat"; the petitioner went to the respondents along with witnesses, namely Muhammad Sadique, Muhammad Salah and Muhammad Khan, and fulfilled "Tatb-i-Ishhad" on 26-8-1998, but the respondents refused to return the disputed land and the petitioner, on 27-8-1998, sent notices in writing through registered cover, attested by the witnesses but the respondents refused to surrender the land to the petitioner, which necessitated the suits. The respondents contested the suits through separate written statement, thereby raising preliminary objections and controverting contents of the plaints and asserting that the petitioner did not fulfil requirement of "Talbs". The learned trial Court framed as many as seven identical issues in both the cases, recorded oral as well as documentary evidence of the parties and ultimately dismissed both the suits, vide separate judgments and decrees, dated 10-5-1999. The petitioner filed two appeals, against the said decrees, but those were dismissed by the learned Additional District Judge, vide separate impugned judgments and decrees both, dated 26-11-2002, hence the present revision petitions.

3. Learned counsel for the petitioner states that the learned trial Court rendered its findings only on issues Nos. 1 to 3, while no findings were given on the rest of 'the issue. He further submits that the learned trial Court recorded evidence in one case and same was copied by the Reader in the other suit, which course of action vitiates the impugned judgments. He adds that there is no discrepancy in petitioner's witnesses and his suits deserve to be decreed. He has relied upon the judgment reported as Haji Feroze Khan and another v. Amir Hussain through L.Rs. and others (2004 SCMR 1719). Learned counsel for the respondents contends that in view of the statement of P.W.2, the petitioner did not make "Talb-i-Muwatibat" as soon as he came to know about the sale of the land:

4. I have heard the learned counsel and examined the available record. First contention of the learned counsel for the petitioner, on the face of it, does not deserve any consideration. The crucial issues are issues Nos. 1 to 3, upon which both the Courts in view of the evidence on record rendered their findings. The learned trial Court while deciding issue No.6 has held that in view of findings on issue No.1, this issue is also disposed of, however, issues Nos. 4 and 5, onus of which was on the respondents, were not pressed, thus, decided accordingly. In view whereof, it cannot be urged that the learned trial Court did not give its findings on all the issue.

5. Now coming to the next contention: The learned counsel for the petitioner, when asked as to whether the petitioner raised the said plea, now agitated before the revisional Court, has frankly conceded that no,, such plea was urged before the first appellate Court. I have also examined the memorandum of appeal filed before the lower appellate Court and 'find that the petitioner did not plead the said ground in the memorandum of appeal. Admittedly, the petitioner did not take the plea, now agitated before this Court, for the first time, before the first appellate Court. Additionally, the learned counsel for the petitioner has not been able to demonstrate as to how the petitioner was prejudiced from the said act of the Court. It is settled law that a litigant cannot be allowed to raise altogether a new and different plea before the appellate/revisional Court, which has not been raised before the lower forums. Reference can be made to Anwar Ali and others v. Manzoor Hussain and another (1996 SCMR 1770) and Amir Shah v. Ziarat Gul (1998 SCMR 593).

6. As regards other contention of the learned counsel for the petitioner, suffice it to say that the petitioner was non-suited not only on account of discrepancies in the statements of his witnesses but also on the basis of statement of P.W.2, who categorically stated that the petitioner pronounced his intent to pre-empt the suit-land prior to hearing him and that the petitioner did not fulfil "Talb-i-Muwatabat" in accordance with law. I have also examined statement of P.W.2 and find that in his cross-examination, he has deposed as under:-- It flows from the above that P.W.2 unambiguously, clearly and loudly stated that the petitioner showed his intention to pre-empt the land before he could hear from him about the sale. It shows that the petitioner had already knowledge about the sale, which was undertaken through registered sale-deeds, which is presumed to be notice .to the public. Although the learned counsel for the petitioner has tried to justify said portion of the statement of P.W.2, yet he has not been able to get out from the vigor of the statement, which is categorical and specific in nature. Even otherwise, the statement of P.W.2 if read together is wavering and untrustworthy inasmuch as he also stated that he could not tell as to when the sale was made. Both the Courts did not commit any illegality while raising adverse inferences from the statement of P.W.2. Both the Courts have rightly held that the petitioner has not been able to prove "Talb-i-Muwatabat", therefore, performance of "Talb-i-Ishhad loses its sanctity.

7. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

8. The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

9. It is settled law that concurrent findings of facts, based on', evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and others (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

10. Upshot of the above discussion is that both revision petitions are devoid of merits, thus, the same stand dismissed with no order as to costs. S.A.K./K-46/L Revision dismissed.