2015 PLP 134 (CLC)

MUHAMMAD DAUD KHAN, J.

Through this revision petition, the petitioners challenged the judgment and decree of learned Additional District Judge/Izafi Zilla Qazi, Matta dated 29-11-2011, vide which the appeal preferred by petitioners against the judgment and decree of Civil Judge/Illaqa Qazi, Matta dated 31-5-2011, was dismissed and maintained the decree of learned trial Court whereby suit of respondent/plaintiff for possession through pre-emption was decreed.

2. Brief facts of the case giving rise to instant revision are that transaction of an area measuring 1 Kanal, 41/2 Marla, effected through mutation No.696 dated 28-5-2010 in favour of petitioners-defendants in village Gorra, Tehsil Matta, District Swat, was made the subject of pre-emption through instant suit filed by the respondents/plaintiff.

3. The suit was instituted on 24-9-2010, on the basis of superior right of pre-emption after compliance of 'Talb-e-Muwathibat' on getting the knowledge of transaction by plaintiff/respondent on 20-9-2010 (Monday) at 6:00 p.m. in the `Baithak' of Said Akbar situated in village Gorra in presence of persons sitting there and 'Talb-e-Ishah'd' on 23-9-2010. The petitioners/defendants controverted the claim of respondent/plaintiff by all corner of the plaint but main defence taken by the petitioners/defendant was that the transaction being exchange in consideration of Mutation No.695 attested on same date in same area, does not come within the purview of definition of sale as given in section 2(d) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, hence not pre-emptible. Out of divergent pleadings of the parties, following issues were framed by learned trial Court:

After recording pro and contra evidence and hearing learned counsel for the parties, the learned trial Court passed a decree in favour of respondent/plaintiff vide judgment dated 31-5-2011. The appeal preferred by the present petitioners also met the same fate when learned Additional District Judge/Izafi Zilla Qazi, Matta dismissed the same vide judgment and decree dated 29-11-2011.

4. Arguments of learned counsel for parties heard and record minutely perused.

5. Out of above mentioned, the Issues Nos.1, 6 and 8 are important to resolve the controversy in lis. However, the trial Court while framing the substantial issue in the case i.e. Issue No.6 to the effect:

placed the burden of proof on the shoulder of plaintiff/pre-emptor which was required to be placed on the shoulder of defendants.

6. Later on, the trial Court acknowledged the mistake in its judgment wherein it was clarified that the burden of proof was on the defendant/purchaser, but this mistake was realized at a time when the parties had already produced their respective evidence. Had the mistake was realized before recording of evidence, the defendant/petitioners would have led some evidence with regard to exchange of property for better management.

7. No doubt, if the parties produce their respective evidence in support thereof, then framing or non-framing of issues would lose significance. But in the instant case the learned trial Court wrongly placed the burden of proof, specifically on the shoulder of plaintiff/pre-emptor to prove exchange of land for better management. In my opinion, the framing of issue and shifting burden of proof on the party, not legally bound to prove it, is legally incorrect. As the exchange of agricultural lands for better management does not fall within ambit of sale and not pre-emptible if defendant/petitioner took the shelter of exchange of agricultural lands for better management to ward off right of pre-emption of pre-emptor, it was bounden duty of defendant to have proved exchange of agricultural lands for better management by way of cogent and convincing evidence. Certainly, the burden will on the shoulder of defendant. Reliance can be placed on 2004 CLC 359 [Peshawar] `Fazal Rehman v. Khursheed Ali and others', 2010 CLC 1474 [Peshawar] Amir Nawaz Khan and 2 others v. Rahmatullah Khan' and 2012 MLD 1426 [Peshawar] `Muhammad Ashraf v. Haji Muhammad Yar and 3 others'.

8. The Patwari Halq recorded its statement twice as PW-1 and PW-6 and cross-examined by the petitioners/defendants, but he neither produced the 'Fard' of ownership of plaintiff, nor said any word regarding the right of parties; even the impugned mutation has not been brought on the record.

9. After the leading judgment of apex Court in Said Kamal Shah's case PLD 1986 Supreme Court 360, the pre-emption right is no more piratical right, but it is a substantive right provided and recognized by Islamic Law and same should not be defeated by technicalities by act of Court or non-providing the sufficient evidence by revenue official or carelessness of counsel of the parties. Evidence recorded by both the parties to resolve the controversy between the parties is deficient to reach on the just conclusion. The question what were preferential rights of the parties regarding the pre-emption right, whether the transaction was exchange for better management and if it is sale; what would be its market value.

10. It is necessary for just decision of the case to call 'Patwari Halq' as Court witness to submit relevant mutations, relevant 'Fard Jamabandi' of ownership of both the parties and price of land adjacent to the suit land sold out in near past and decide in the light of above observation.

11. Accordingly, this revision is allowed to the extent that the impugned judgments and decrees of both the Courts below are set aside and the case is remanded back to the trial Court with the direction to examine 'Patwari Halqa' as Court witness as observed above and after hearing both the parties, decide the case afresh in accordance with law, but not later than three months after receipt of case filed. AG/635/P Order accordingly.