2012 PLP 242 (MLD)

ABDUL WAHEED KHAN, J.

Against the sale of land pertaining to khewat No.205, khatooni No.263, Khasra No.801, measuring 53 Kanals and 8 Marlas, situated at Chani Noor Muhammad, Tehsil Pindi Bhattian, District Hafizabad for consideration of Rs.1,50,000 through Mutation No.176 dated 15-11-1999, the present petitioner/plaintiff filed a suit for possession through pre-emption that he had superior right of pre-emption qua vendee/respondent in his capacity as co-sharer on the basis of contiguity and common water channels. The defendant, in his written statement denied superior right of pre-emption and so also fulfilment of talbs and prayed for dismissal of the suit. As many as 4 issues were framed.

2. After settlement of the issues, both the parties produced their evidence. The petitioner/plaintiff produced P.W.1 to P.W.6 as his oral evidence and also tendered in evidence documents Exh.P-1 to P-9. On the other hand, the defendant No.1/respondent got his statement recorded as DW-1 and also tendered in evidence documents Exh.D1 to Exh.D8.

3. The suit was dismissed mainly for the reason that plaintiff did not appear before the trial Court as his own witness, he failed to fulfil the requirement of Talb-e-Muwathibat and Talb-e-Ishhad, the respondent/defendant was not alien to the suit property, he is also owner in possession of the same village area out of the same khewat and that they are joint khatadar of the suit land and thus the contention of the petitioner/plaintiff that he had got superior right qua the vendee/defendant appeared to be unjustified, therefore, it cannot be assumed that the respondent/plaintiff has got superior right of pre-emption against the defendant. The suit was dismissed vide judgment and decree dated 10-7-2006 and an appeal filed against the same was dismissed by Additional District Judge, Pindi Bhattian vide judgment dated 19-5-2010. Feeling aggrieved of the same, the petitioner has come before this Court through the instant revision petition.

4. The contentions of the counsel for the petitioner are that the findings and observations of both the courts below are merely based on presumptions and that P.W.1 namely Khawar Abbas stated in examination in chief that the plaintiff came to know about the sale transaction on 27-2-2000, but it was merely a slip of tongue. It was submitted that there were minor insignificant discrepancies between the statement of P.Ws. inter se, which should have been ignored in the interest of justice.

5. Preliminary arguments of the counsel for the petitioner/plaintiff have been heard.

6. In a suit for possession through pre-emption, the petitioner alleged that he came to know about the sale transaction on 28-2-2000, while he was present at his Dera, in the presence of Muhammad Sharif but he failed to appear before the Court to substantiate the contents of the plaint. It was for the plaintiff to enter the witness box and to prove that he came to know about the sale transaction on a particular date, time and place and that he made an immediate demand i.e. talb-e-muwathibat. His non-appearance before the court to prove all these facts was fatal to a suit for possession through pre-emption. Reference may be made to Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235). It was also a suit for possession through pre-emption wherein although the plaintiff himself appeared before the Court as his own witness but he could not produce the other two persons mentioned in the plaint in whose presence, he allegedly made talb-e-Muwathibat. The view taken by the Hon'ble Supreme Court of Pakistan was as under:-- "Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him." It was also held in Muhammad Hafeez v. Muhammad Hanif Khan and another (1991 MLD 1576) as under:-- "It is a settled principle of law that party personally knowing circumstances of the case is duty bound to appear as its own witness and submit to cross-examination failing which truth of that party may be discredited". The ratio of both these aforementioned judgments is that when there are certain facts and circumstances in the knowledge of a party, an adverse inference could be drawn from its non-appearance. Article 129-G of Qanun-e-Shahadat Ordinance reads as follows:-- "The evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it". In a similar case where the pre-emptor did not enter the witness box and only the attorney made statement on his behalf, the august Supreme Court of Pakistan, in case Abdul Qayum v. Muhammad Sadiq, (2007 SCMR 957) held that:-- "The right of pre-emption is a piratical right and pre-emptor must prove essential conditions for exercise of such right in accordance with provision of section 13 of Punjab Pre-emption Act, 1991 and without proving Talb-e-Muwathibat, which is foundation for exercise of right of pre-emption, the pre-emptor cannot maintain the suit. There is no cavil to the proposition of law that pre-emptor without proving the performance of Talb-e-Muwathibat and Talb-i-Ishand strictly in accordance with provision of section 13 of Punjab Pre-emption Act, 1991, cannot succeed. In the present case pre-emptor claimed to have made Talb-e-Muwathibat on 6-8-1995 on the information conveyed to him by the witness but he did not appear in the witness-box to make a statement in affirmative of his claim regarding receipt of information and performance of Talb-e-Muwathibat immediately on receipt of information in presence of the witnesses. This is an admitted fact that attorney of the pre-emptor was not present in the meeting in which he claimed to have performed Talb-e-Muwathibat and had no personal knowledge about the date of sale and making of performance of Talbs by the pre-emptor rather his statement was based on the knowledge of the pre-emptor who despite being available, did not appear in the witness-box. The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-e-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13(bid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-e-Muwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-e-Muwathibat himself and appear in Court in person. In the case in hand, it is an admitted fact that the pre-emptor himself made Talb-e-Muwathibat and was also available both at his ordinary place of residence and business and was not suffering from any disability to appear before the Court. It is also a fact that the attorney of pre-emptor had no direct knowledge of the performance of Talb-e-Muwathibat by the pre-emptor, therefore his statement regarding performance of Talb-e-Ishhad was based on hearsay knowledge." It could not be clarified or explained on behalf of the petitioner/plaintiff as to why he did not appear before the court as his own witness to prove the contents of the plaint especially the requirements of Talb-e-Muwathibat, Talb-e-Ishhad and the superior right of pre-emption.

7. It is also to be noted that Khawar Abbas, who is stated to be special attorney of the plaintiff while appearing as P.W.1 did not state that he was present with the plaintiff when one Muhammad Sharif came there and told him about the sale transaction and that the plaintiff allegedly made a Talb-e-Muwathibat. His entire examination-in-chief is based on hearsay and thus has no evidentiary value. The said P.W. is not resident of the village or nor he has any holding in the estate. The relevant portions from his examination-in-chief are as follows:--

8. In the absence of the appearance of the plaintiff as his own witness, statement of the remaining P.Ws. has no significance. As stated above, the petitioner/plaintiff did not enter the witness box, therefore, neither he could prove that he made any Talb-e-Muwathibat nor he had any superior right qua the suit land. For the above reasons, this petition has no merits and the same is hereby dismissed in limine. H.B.T./S-143/L Petition dismissed.