2009 PLP 1311 (CLC)

MUHAMMAD ALAM KHAN, J.

Petitioner Aurangzeb has called in question the judgment and decree of the learned Additional District Judge-VI, D.I. Khan vide Civil Appeal No.14 of 2006, filed by the petitioner, which was dismissed on 13-12-2007 and the judgment and decree dismissing the suit of petitioner vide Civil Suit No.640/1 of 1995 decided on 29-6-2006, was maintained.

2. Briefly narrated the facts of the case are that Aurangzeb petitioner filed a suit against Ghulam Rasool and others, seeking declaration to the effect that land measuring 125 Kanals, 14 Marlas, fully detailed in the heading of the plaint and situated in the revenue estate of Rakh Shah Kot; Tehsil and District D.I. Khan has been sold on the total sale consideration of Rs.1,50,000 and consequently, the portion of land transferred vide registered Deed No.591 dated 26-4-1995 with respect to 75 Kanals, 1 Marla on sale consideration of Rs.1,50,000 is illegal, against law and facts and has fictitiously been registered in order to ward off the pre-emptive rights of the plaintiff-petitioner. In the alternative, land measuring 125 Kanals, 14 Marlas was made the subject-matter of pre-emption.

3. It was alleged in the plaint that in fact land measuring 125 Kanals, 14 Marlas has been sold, possession whereof has been acquired on the spot but an ostensible transfer has been made through the impugned registered deed in order to defeat the superior right of pre-emption. The plaintiff claimed to be co-sharer, contiguous owner and participator in appendages and immunities.

4. Defendant was summoned who appeared and hotly contested the allegations contained in the plaint. Out of the divergent pleadings of the parties, the learned trial Court framed as many as twelve issues including the relief. The parties produced their respective evidence as they wished to produce and the learned trial Court after scanning the evidence and hearing the learned counsel for the parties and taking into consideration the data available on the record, vide Suit No.640/1 of 1995 decided on 29-6-2006, dismissed the snit of the petitioner/plaintiff.

5. Being aggrieved, the petitioner filed an appeal which came for -hearing before Additional District Judge-VI, D.I. Khan and the learned appellate Court after hearing the learned counsel for the parties, scanning the evidence vide judgment and decree in Appeal No.14 of 2006, dismissed the appeal. Hence, the instant revision petition.

6. Learned counsel for the petitioner submitted that the two Courts below have fallen into an error by not considering the facts that the requirement of Islamic demands under section 13 of the N.-W.F.P. Pre-emption Act, 1987 had been duly complied with. The sale was in fact for 125 Kanals, but a meagre area had been mentioned in the registered deed in order to make themselves co-sharers. It was also submitted that evidence in this respect was not scanned in its correct perspective.

7. On the other hand, learned counsel for the respondent submitted that, firstly, the registered deed subject-matter of pre-emption depict the true area and the petitioner had not fulfilled the requirement of Islamic demands and thus was rightly non-suited by the learned two Courts below.

8. I have heard the learned' counsel for the parties and perused the record.

9. Perusal of the record reveals that the petitioner has issued two notices Talb-e-Ishhad, one on 22-7-1995 and the other, on 30-7-1995. It means that prior to the issuance of second notice, he was in the know of the alleged registered deed dated 26-5-1995 and the Islamic demand of Talb-e-Muathibat which is a jumping demand, was not made immediately and on the spot.

10. Furthermore, perusal of the plaint would reveal that no date, month or even the year of knowledge has been alleged in the plaint so much so that even the name of the informer has not been mentioned. These ingredients has to be mentioned in order to prove the date of knowledge of performance of Talb-e-Muathibat. Furthermore, the notices of Talb-e-Ishhad issued twice, have not been proved. Thus, in view of the judgment handed down in the cases of Mst. Sahib Jamala v. Fazal Subhan and others PLD 2005 SC 377, Abdul Aziz v. Malik Aman 2007 SCMR 1295 and in the case of Nawab Din v. Faqir Sain 2007 SCMR

401. The plaintiff/petitioner had neither mentioned the ingredients of date, time and the name of informer in the plaint or in the alleged notice of Talb-e-Ishand and thus was rightly -non-suited by the learned two Courts below.

11. The learned two Courts below have recorded concurrent findings of facts against the petitioners which are not open to interference by this Court until and unless grave injustice or material illegality is proved on the record which are missing in this case, in view of the dicta handed down in the cases of Abdur Rehim and another v. Mst. Jantay Bibi and others 2000 SCMR 346, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rasheed v. Muhammad Siddique PLD 2002 SC 293, no interference can be made in the concurrent findings of facts recorded by the two Courts below.

12. In view of the facts and circumstances of the case narrated above, there is no force in the instant revision petition which is dismissed in limine.

13. Above are the reasons of my short of the even date. H.B.T./163/P Petition dismissed.