2007 PLP 527 (MLD)

JAWWAD S. KHAWAJA, J.

The petitioners-defendants impugn the concurrent decrees of the learned trial Court, dated 27-11-2001 and of the learned appellate Court, dated 21-1-2002, whereby a suit filed by the respondents-plaintiffs seeking possession of the suit property through pre-emption has been decreed. Both Courts below have inter alia, held that the respondents-plaintiffs had proved performance of the Talabs required under section 13 of the Punjab Pre emption Act.

2. Learned counsel for the petitioners-defendants has argued that the learned Courts below have proceeded against the record. He, firstly, argued that in the entire plaint there is no mention of any notice of Talb-e-Ishhad. I have gone through the plaint, with the assistance of both learned counsel, and find the submission of learned counsel for the petitioners to be correct. It was, therefore, argued that a material fact, necessary for the success of the suit but not pleaded in the plaint, cannot be proved through evidence. This contention is well-founded. It, therefore, follows that Talb-e-Ishhad cannot be said to have been proved by the respondents-plaintiffs.

3. Learned counsel for the petitioners next took me through the evidence of Khurshid Ahmad (P.W.7/A), who allegedly informed the respondents-plaintiffs of the sale. It is important to note that neither in the pleadings nor in the examination-in-chief of the respondent Riasat Ali (P.W.9) or the examination-in-chief of said Khurshid Ahmad (P.W.7/A) has it been stated that the two are full brothers. It was, however, elicited through the cross-examination of the respondent Riasat Ali and the witness Khurshid Ahmad that not only were they full brothers, but Khurshid Ahmad also admitted that they were residing in the same house. Bearing this in mind, the testimony of the two cannot be given any credence. It may be added that these two brothers deposed that the suit property was surrounded on all sides by property owned by them. Furthermore it has been testified by P.W.7, namely, Muhammad Ali that the petitioners-defendants had taken possession of the suit property on the date of the registered sale-deed, dated 5-4-1995 in their favour. In these circumstances, the story, set up by the respondents that on 17-4-1995 during the course of a casual conversation Khurshid Ahmad (P.W.7/A) had mentioned the sale to his brother Riasat Ali (respondent-plaintiff), cannot be given any credence.

4. In addition to the above, Khurshid Ahmad deposed that he was informed of the sale by some person who he could not name. This statement also shows Khurshid Ahmad to be lacking probity because of the circumstances, noted above, which were sufficient to show that both Khurshid Ahmad and his brother Riasat Ali became aware of the sale when the petitioners took possession of the suit property at the time of execution of the sale-deed on 5-4-1995.

5. Unfortunately both Courts below have totally overlooked the above material circumstances of the case. The impugned decrees, therefore, are a result of material irregularity in the exercise of jurisdiction by the learned Courts below. The same are, therefore, not legally sustainable and are, therefore, set aside. As a consequence, the suit filed by the respondents-plaintiffs is dismissed with costs throughout. F.B./S-1/L Petition allowed.