2013 PLP 2674 (YLR)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioners-defendants have impugned the judgment and decree dated 6-6-2005 passed by learned Addl. District Judge, Bhakkar, whereby the appeal filed by them was dismissed, and the judgment and decree dated 23-7-2004 passed by learned Civil Judge, Mankera District Bhakkar, whereby the suit for preemption filed by the respondent-plaintiff was decreed.

2. Briefly, the facts as leading to this civil revision are that on 10-2-2001 the respondent-plaintiff filed a suit to pre-empt the sale of land measuring 100-kanals, 12-marlas through Mutation No.1134 attested on 20-10-2000. The written statement was filed and suit was contested. Learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their versions. After the closing of trial, vide judgment and decree dated 23-7-2004 suit was decreed by learned trial Court. An appeal was preferred before the learned first appellate court, which was dismissed vide judgment and decree dated 6-6-2005. Hence, this civil revision by the petitioners-defendants.

3. Learned counsel for the petitioners-defendants argues that the plaintiff-respondent has not performed and proved Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law; that the notice was given by the counsel and not by the plaintiff; that the plaintiff was bound by the statement made by his witness; that the oral sale was completed in July, 2000 and mutation was subsequently attested, therefore suit was time barred. Further states that the receipts issued by the Post-Office and original envelopes for sending the notices of Talb-e-Ishhad produced in the court are inadmissible; that without getting the Patwari (P.W.2) declared hostile, his statement is binding upon the plaintiff; that the land more than 100-kanals is not pre-emptable, as Shafee-Jar is with regard to the house only. Learned counsel for the petitioners minutely argued every entry of revenue record produced in the court with regard to Jamabandi, mutation and Khasra-Girdawari to challenge the same and argued for interpretation of these documents in accordance with his contentions. Lastly argues that the concurrent findings can be set aside by this Court if the same are recorded against the principles of law and result of misreading or non-reading of evidence. Prays for acceptance of this civil revision and setting aside the impugned judgments and decrees passed by both the courts below. Learned counsel has relied upon "2005 SCMR 1228 (Abdul Hakeem v. Mst. Jannat Bibi), 2007 SCMR 1105 (Muhammad Bashir and others v. Abbas Ali Shah), PLD 2011 Supreme Court 151 (Muhammad Tariq and others v. Mst. Shamsa Tanveer and others) and PLD 2007 Supreme Court 433 (Haji Abdul Ghafoor Khan through Legal Heirs v. Ghulam Sadiq through Legal Heirs)".

4. On the other hand, learned counsel for the respondent-plaintiff argues that there are concurrent findings of facts with regard to performance of Talb-e-Muwathibat, Talb-e-Ishhad and superior right of pre-emption in favour of plaintiff; that learned trial Court has recorded the findings on the basis of evidence available on the file by discussing each and every bit of evidence, oral as well as documentary, and came to the conclusion that the plaintiff has pleaded and proved Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law; that it was also concluded by learned trial Court that the plaintiff was having superior right of pre-emption, therefore suit was decreed and the learned first appellate court agreeing with the findings of trial Court dismissed the appeal. While relying upon the judgments "1996 SCMR 813 (Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi-ud-Din), 2000 SCMR 314 (Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another)., PLD 2002 SC 293 (Muhammad Rashid Ahmed v. Muhammad Siddique), and AIR 1949 PC 26 (N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras)" learned counsel argues that the revision petition is not maintainable. Further states that the High Court cannot reappraise the evidence already interpreted by two courts below. In this context, relies upon "PLD 1983 SC 53 (Kanwal Nain and three others v. Fateh Khan and others) and PLD 1970 SC 288 (Umar Dad Khan and another v. Tila Muhammad Khan and 14 others)". Learned counsel for the respondent-plaintiff further argues that the date, time and place have been pleaded and proved for gaining the knowledge of sale, whereas the minor discrepancies are ignorable; that both the courts below have accepted the evidence led by the plaintiff; that when the notices sent through registered post were not received by the vendees-defendants, the same were returned to the sender and original envelopes were produced in the court in the statement of P.W.1, Postal Clerk; that the statement of P.W.2, Patwari Halqa has rightly been interpreted by both the courts below and High Court is not required to reinterpret his statement; that when the vendees have alleged that plaintiff was in the knowledge of sale from the date of alleged oral sale or attestation of mutation, it was their duty to prove that plaintiff was in the knowledge of sale. Relies upon "1979 SCMR 214 (Muhammad Sadiq v. Muhammad Sarwar and 2 others)". Prays for dismissal of instant civil revision.

5. I have heard the learned counsel for the parties at full length and also gone through the record as well as the findings recorded by two courts below as well as case law referred to by them with their able assistance.

6. With regard to the discrepancies in the statements of witnesses of Talb-e-Muwathibat and Talb-e-Ishhad the case of petitioners-defendants is that though the specific date, time and place have been pleaded and deposed by the witnesses in their examination-in-chief but in the cross-examination they could not tell the exact period of Talb-e-Muwathibat from the day when their statements were being recorded in the court, therefore the plaintiff failed to prove Talb-e-Muwathibat. I am afraid that when the specific date of Talb-e-Muwathibat has been pleaded in the plaint as 11-12-2000 and stated the same in the examination-in-chief by the witnesses recorded in June, 2002, therefore stating that the witnesses should have deposed the exact period of making Talb-e-Muwathibat from the date of recording their statements, I believe it is not a defect, neither it was the requirement of law to reply that the witness should mathematically calculate the period i.e. making of Talb-e-Muwathibat from the date of attestation of mutation and the period between making the Talb and date of recording the statement in the Court. The witness is not presumed to reply the exact period of Talb-e-Muwathibat from the date of recording his statement in the court. I believe that when learned trial Court after scrutiny of evidence came to the conclusion that the plaintiff has pleaded and proved Talb-e-Muwathibat in accordance with law and issue has been decided in favour of plaintiff and same has been confirmed by the first appellate court, therefore I am not supposed to reconsider the findings and reinterpret the evidence of parties. I am conscious of the fact that this Court can scrutinize the evidence of parties in its revisional jurisdiction and also scrutinize the concurrent findings of fact recorded by two courts below only if learned counsel for the petitioners is able to show any misreading or non-reading of evidence on the part of courts below.

7. So far as Talb-e-Muwathibat is concerned, same has been pleaded and proved in accordance with law. Therefore, the findings recorded by both the courts below are not revisable by this Court when the same are recorded on the basis of confidence inspiring evidence available on the file. Furthermore, P.W.2 was produced for proving a document on the basis of record which was in his possession, as he was Patwari Halqa. When he has made an exceptional statement in favour of defendants by stating that after one and half week of attestation of mutation plaintiff came to him to know about the mutation, it is not fatal for the plaintiff because it has been proved on the file that there was a dispute between the brother of plaintiff, who is also Patwari, and P.W.2 with regard to posting in specific Mouza. Both the courts below have accepted this position. In this view of the matter, I am also of the view that when official witness was produced to make statement on the basis of record, his exceptional statement in favour of defendants-vendees which was not relevant with regard to the examination-in-chief, is not fatal for the plaintiff.

8. So far as the question of Talb-e-Ishhad is concerned, in Para 3 of the plaint it is pleaded that the notices of Talb-e-Ishhad attested by the witnesses were sent through registered post and it has also been mentioned that the receipts of sending notices as well as original envelopes with acknowledgement due have been attached with the plaint. In the written statement in reply to Para 3 of the plaint it is stated that the story with regard to sending notices is baseless. No notices have been delivered to the defendants. It has been further stated that the alleged receipts and registered envelopes have been prepared fictitiously on the basis of fake story.

9. The registered postal receipts and original envelopes which were received back to the sender of registered envelopes, were annexed with the plaint and pleading by the petitioners-defendants that same are forged and fictitious. While the Postal Clerk (P.W.1) got exhibited the receipts of sending notices through registered post A.D. and also produced four original envelopes in his statement that the same were received back unserved, therefore delivered to the sender. There is a report of Postman with the noting that he visited for delivery of notices from 15-12-2000 and kept the same with him till 23-12-2000 in 'Madd-e-Amanat' and on 23-12-2000 he reported that the addressees could not meet him despite various attempts and members of their families have refused to receive the notices, therefore be returned. It is not the case of petitioners-defendants that the address on envelopes of notices of Talb-e-Ishhad was wrongly mentioned. When the same were filed with the plaint and in written statement the stance of defendants-petitioners that same have been prepared fictitiously on the basis of fake story, therefore it was the responsibility of defendants to prove the case pleaded by them with regard to non-issuance of notice of Talb-e-Ishhad or forgery with regard to the original receipts of envelopes as well as original envelopes. In this view of the matter, when these documents were part of plaint, pleading by the petitioners-defendants that receipts of sending notice and original envelopes of notices of Talb-e-Ishhad are fictitious, whereas P.W.1 got exhibited in his statement the receipts of sending notices and original envelopes which were returned to the sender, and both the courts below have accepted the fact that plaintiff has proved Talb-e-Ishhad in accordance with law. I have noticed that the notices of Talb-e-Ishhad are Exh.P-14 to Exh.P-17, though signed by the counsel but also thumb marked/signed by the plaintiff and his witnesses. On the backside of envelopes as well as A.D. mentioning of address of learned counsel for return of same in case of non-delivery is not a defect. Therefore, I humbly see that "2005 SCMR 1228" is not applicable to the facts of this case and petitioners cannot take any benefit from the above cited judgment. In this way plaintiff has substantially complied with Section 13 of the Punjab Pre-emption Act, 1991. When the original envelopes of registered A.D of notice of Talb-e-Ishhad received back unserved were appended with the plaint and also mentioned in the pleadings in Para 3 of the plaint, same being part of pleadings, defendants-petitioners were bound to specifically reply Para 3 of the plaint and rebut the same. The reply to the issuance of notice mentioned in the written statement is as follows:-- When the receipts Exh.P-1 to Exh.P-4 are proved in the statement of P.W.1, which prove the sending of registered letters Exh.P-5 to Exh.P-8 and acknowledgement due Exh.P-9 to Exh.P-12, as I have noted supra that the original notices sent through registered post A.D were received back by the sender before filing of the suit and were attached with the plaint, therefore these were part of the plaint and stand taken by the defendants that receipts and envelopes and A.D, Exh.P-1 to Exh.P-4 are forged and fictitious one, in this eventuality it was the responsibility of petitioners-defendants to prove the case pleaded by them but they miserably failed to do so. There are concurrent findings of fact recorded by two courts below against the vendees-defendants, in these circumstances, I also agree with the findings recorded by both the courts below that the plaintiff has proved Talb-e-Ishhad in accordance with law. In this way, the plaintiff-respondent has substantially complied with the provisions of section 13 of the Punjab Pre-emption Act, 1991 with regard to sending the notice of Talb-e-Ishhad, therefore the petitioners cannot take the benefit of the case-law cited as "2007 SCMR 1105", as the facts of this case are distinguished as noted above.

10. So far as the arguments of learned counsel for the petitioners with regard to the entries of Revenue Record i.e. entry of mutation and attestation of mutation are concerned, to argue that sale was complete before the attestation of mutation, therefore suit is time-barred. I am afraid that the scrutiny of same is not permissible under the law at this stage when there are concurrent findings of facts recorded by two courts below against the petitioners-vendees. Further that the case of learned counsel for the petitioners that the sale was completed in July, 2000 is also against the pleadings of petitioners-defendants, therefore the argument that suit was time-barred is repelled. The case-law cited by learned counsel for the petitioners as "PLD 2011 Supreme Court 151 and PLD 2007 Supreme Court 433" are not helpful for the petitioners.

11. The contention of learned counsel for the petitioners at this stage that land more than 100-kanals is not pre-emptable which relates to section 32 of the Punjab Pre-emption Act, 1991, is without any lawful justification. This point was never pleaded nor argued before the courts below, first time it cannot be allowed at this stage and even I am afraid that this argument is not having any weight against the codified law of pre-emption. Further when there is codified law in the field wherein no such embargo is available in the statute, therefore this argument of learned counsel has no substance.

12. The case-law referred to by learned counsel for the respondent-plaintiff is fully applicable to the facts of this case. Whereas the case-law "PLD 2008 Supreme Court 155 (Asmatullah v. Amanat Ullah through Legal Representatives) and 2012 SCMR 1373 (Noor Muhammad and others v. Mst. Azmat-e-Bibi)" relied by learned counsel for the petitioners-defendants with the contention that concurrent findings can be interfered with, are concerned, I am conscious of the fact that the concurrent findings can be interfered with when the petitioners succeeded to show some misapplication of law or misreading or non reading of evidence on the part of two courts below but no such flaw or misapplication of law has been highlighted. In this view of the matter, learned counsel for the petitioners-defendants has not been able to point out any material irregularity or infirmity in the impugned judgments and decrees passed by two courts below, therefore no case for interference by this Court while exercising jurisdiction under section 115 of thee C.P.C. has been made out.

13. In the light of what has been discussed above, I see no force in this civil revision. The same is hereby dismissed with no order as to costs. SAK/K-24/L Revision dismissed.