2012 PLP 50 (YLR)

SYED SAJJAD HASSAN SHAH, J.

Through the instant revision petition, Alif Khan petitioner-defendant has called in question the judgment and decree dated 31-1-2006 passed by learned Additional District Judge-II, D.I.Khan whereby the appeal filed by the respondent-plaintiff was accepted, the impugned judgment and decree dated 2-2-2005 of learned Civil Judge-II, D.I.Khan was set aside and suit of the respondent-plaintiff was decreed.

2. The facts, in brief, are that the respondent-plaintiff filed a suit for possession through pre-emption in respect of land measuring 2-3/4 marla purchased by the petitioner-defendant vide registered Sale-deed No.1248 dated 24-6-1998 for sale consideration of Rs.5,000 but to defeat the pre-emption right of the respondent-plaintiff, an inflated amount of Rs.3,50,000 was entered in the registered sale-deed. It is averred in the plaint that respondent-plaintiff is co-sharer, contiguous owner, participator in immunities and appendages, therefore, has got superior right of pre-emption. The respondent-plaintiff got knowledge of the sale transaction on 19-10-1998 at 5 p.m. in his own shop situated in Shore Kot through one Badshah Khan and there and then, he declared his intention to pre-empt the suit-land.

3. The petitioner-defendant contested the suit by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments, the learned trial Court dismissed the suit of respondent-plaintiff vide judgment and decree dated 2-2-2005.

4. Dissatisfied with the judgment and decree dated 2-2-2005, the respondent-plaintiff filed appeal. The appeal was accepted by the learned appellate Court vide judgment dated 31-1-2006 and while setting aside the judgment and decree of the learned trial Court, decreed the suit of the respondent-plaintiff. Hence, the instant revision petition by the petitioner-defendant.

5. The learned counsel for the petitioner-defendant contended that the respondent-plaintiff miserably failed to prove the performance of Talb-e-Muwathibat as well as Talb-e-Ishhad. While elaborating his arguments, the learned counsel pointed out contradictions in the statements of the witnesses produced by the respondent-plaintiff, as they were not consistent on the question of performance of Talbs. He further argued that the informer Badshah Khan (P.W.5) has not supported the case of the respondent-plaintiff who has been declared as hostile, which fact weakened the case of respondent-plaintiff. He argued that the respondent-plaintiff failed to prove the delivery of notice of Talb-e-Ishhad to the petitioner-defendant and that his pleading is also not in consonance with the evidence which he produced. His last leg of arguments was that the learned appellate Court has erred in decreeing the suit of the respondent-plaintiff.

6. As against that, the learned counsel for the respondent-plaintiff contended that the respondent-plaintiff proved his case beyond any shadow of doubt. The contradictions relied upon by the petitioner-defendant are not of much significance, as those are minor in nature, hence, would not affect the case of the respondent-plaintiff, however, such minor contradictions have always been ignored while deciding the pre-emption cases. He further contended that the statement of hostile witness Badshah Khan lends support to the case of the respondent-plaintiff, as it is stated by him that Talb-e-Muwathibat was performed on 19-10-1998. According to learned counsel, this aspect of the case neither affects the stance of the respondent-plaintiff nor can lend any support to the case of the petitioner-defendant which is to be ignored. Even otherwise, hostile witness has not been considered as of any avail to both the parties. He supported the judgment and decree of the learned appellate Court.

7. I have considered the above submissions of learned counsel for the parties and carefully perused the record.

8. A perusal of the record reveals that the respondent-plaintiff averred in his plaint that he was informed about the sale transaction on 19-10-1998 at 5 p.m. at his shop situated in Shore Kot in presence of Allah Nawaz and in the same sitting and at same time declared his intention to pre-empt the suit-land. He was examined as P.W.4. In addition to the assertions made in the plaint, the respondent-plaintiff stated that Badshah Khan came to his shop and said that the land measuring 2-3/4 marla adjacent to the land of respondent-plaintiff has been purchased by Alif Khan, on which the respondent-plaintiff declared his intention as having superior right of pre-emption regarding the suit property. He further stated that on 14th October, 1998 he procured the copy of registered deed and on 21-10-1998 notice was scribed at District Courts D.I.Khan in presence of witnesses namely Allah Nawaz and Ghulam Fareed. Badshah Khan informer was examined as P.W.5. He negated the story of Talb-e-Muwathibat put forth by the respondent-plaintiff in his plaint as well as in his Court statement. He stated that:-- The witness was declared as hostile and was cross-examined on behalf of the respondent-plaintiff. The witness remained strict to his examination-in-chief. Nothing favourable to the respondent-plaintiff has been brought in his cross-examination. Rather, he once again reiterated the same facts, which were earlier deposed in his examination-in-chief. A portion of statement of this witness believed by the learned appellate Court and considered to have corroborated the plea of the respondent-plaintiff in the sense that the witness in his examination-in-chief deposed about the performance of Talb-e-Muwathibat i.e. on 19-10-1998, however, the learned appellate Court did not believe his rest of the statement. But, the reasoning given thereto is not supported by law. It is by now well-settled principle of law that such witness would not be necessarily the hostile witness, for the reason that he is unfavourable to the party calling him, as such, he is not desirous of telling the truth. In order to ascertain as to whether a witness is desirous or not of telling the truth, the Court may allow the prayer for cross-examination to the party who has called him as witness. The necessary corollary would be that there can be no reason why a witness should be declared hostile simply because a portion of his statement goes against the party who calls him. If at all, a portion of his statement is not in consonance with the deposition made by other witnesses, such witness would not be unnecessarily treated as hostile and permitted to be cross-examined.

9. There is another aspect of the case that a witness is declared hostile when he resiles from material parts of his earlier statement. It is not safe to rely upon the testimony of such witness. In this case, the witness has not been examined on any previous occasion, however, it is the case of the respondent-plaintiff pleaded in his plaint and in the Court statement that he was informed about the sale transaction by the said witness on which the respondent-plaintiff declared his intention to pre-empt the suit-land. In such eventuality, the witness cannot be declared as hostile simply for the reason that he has not supported the version of the respondent-plaintiff. More so, as stated earlier, the learned appellate Court on the one hand relied upon a part of the statement of this witness to the effect that he has said that on 19-10-1998 he met the respondent-plaintiff and on the other hand, the witness was dubbed as hostile. Obviously, the Court found certain facts disclosed by this witness and used his deposition in support of the story as set up by the respondent-plaintiff. Reliance placed on PLD 1982 Lahore

154. In such circumstances, Badshah Khan (P.W.5) in unequivocal words spoken the truth which has been wrongly and illegally considered by the learned appellate Court as he was hostile witness and declared that part of his statement is not believable. The statement of P.W.5 is trustworthy and in no way, he can be declared as hostile.

10. The other material aspect of the case is that the so-called witness of Talb-e-Muwathibat namely Allah Nawaz (P.W.6) has also not corroborated the statement of the respondent-plaintiff for the reasons that he has not testified about the year when the informer broken the news of sale transaction in his presence and the respondent-plaintiff declared his intention to pre-empt the suit-land. He has further stated in his examination-in-chief that on having gained the knowledge of sale through Badshah Khan, the respondent-plaintiff stated that:-- The above statement of P.W.6 denotes that the respondent-plaintiff has not declared his intention as pleaded in the plaint and deposed in his statement.

11. The above resume of facts clearly specifies that the respondent-plaintiff has not succeeded to prove the performance of Talb-e-Muwathibat as required under the law. He has also not fulfilled the requirements of Talb-e-Ishhad, as the above cited witness clearly stated that on 23rd, notice Talb-e-Ishhad was scribed. The respondent-plaintiff stated that on 21-10-1998 notice Talb-e-Ishhad was mailed through registered cover to the petitioner-defendant. In this way, this is also a glaring contradiction regarding the scribing of notice and its sending onward to the petitioner-defendant.

12. The learned counsel for the petitioner-defendant also pointed out that the respondent-plaintiff has failed to prove the receipt of notice by the petitioner-defendant, because the postman who had delivered the notice to the petitioner-defendant was not examined. For want of such material evidence, the learned appellate Court, while passing the decree in favour of the respondent-plaintiff, has grossly erred and acted in contravention of the mandatory provision of law which error materially affected the ultimate decision of the case. The learned appellate Court also committed misreading and non-reading of evidence, therefore, the impugned judgment of the learned appellate Court is not sustainable in the eyes of law.

13. For the reasons mentioned above, this revision petition is accepted, the impugned judgment and decree of the learned appellate Court is set aside and that of the learned trial Court, dismissing the suit of the respondent-plaintiff, is maintained. Parties are left to bear their own costs. S.A.K./263/P Revision accepted.