1998 PLP 50 (MLD)

S. 6

Right of pre-emption

Defendant claiming to be contiguous owner-- When Patwari's statement was being recorded wherein he had stated that plaintiff was co-sharer and that defendant did not possess tiny of such qualifications defendant did not cross-examine him on that score nor did he make any suggestion to him that he was contiguous owner of property in question

Nothing on record, thus, was available to indicate that defendant was contiguous owner with property in question. Muhammad Latif for Petitioner. Ashraf Khan Gadoon for Respondent. Dates of hearing: 4th, 10th and 14th March, 1996. This petition under section 115, C.P.C. has been filed for revision of the judgment and decree dated 11-11-1991 passed by learned District Judge, Swabi whereby he confirmed the judgment and decree dated 20-5-1991 passed by learned Civil Judge Lahore District Swabi who had decreed the suit of the plaintiffs-respondents. The petitioner has prayed this Court for setting aside both the judgment and to dismiss the suit of the plaintiffs-respondents with costs.

2. Relevant facts, giving rise to the litigation in hand, are that Islam Gul plaintiff-respondent brought a suit for possession by exercising right of pre -emption over the suit land which was sold through Mutation No.9986, attested on 11-1-1990. The total land is measuring about 24 Kanals, 13 Marlas situate in revenue estate Tordhor Tehsil Lahore District Swabi. The sale transaction was effected in lieu of sale consideration amounting to Rs.1,00,000 (one hundred thousand). The suit was contested by the defendant-petitioner and the averments of the parties were reduced into as many as seven issues. Evidence was recorded, parties were heard and the trial concluded in decreeing the suit of the plaintiff-respondent through judgment dated 20-5-1991 passed by Civil Judge, Lahore. Not content therewith, the petitioner preferred appeal in the Court of District Judge, Swabi but met with no better success, and his appeal was dismissed on 11-11-1991. Hence the present petition.

3. Learned counsel for the petitioner mainly assailed the judgments of the learned two Courts below on the ground that the plaintiff-respondent has not proved 'Talab-i-Muwathibat' and therefore, 'Talb-i-Ishhad' is of no avail to him as 'Talb-i-Ishhad' is the confirmation of 'Talb-i-Muwathibat'. He also relied on 1991 SCMR 2001 and also on 1992 SCMR 1700. It was next contended by him that the learned Trial Court has erred in law by allowing amendment in the plaint whereby Khasra No. 1802 was substituted by Khasra No. 1803. It was also stated that the learned Trial Court has granted decree on the basis of participation in immunities which means that the learned Trial Court had not accepted the plea of the plaintiff-respondent that he was a co-sharer. These arguments were repelled by the learned counsel for the respondents who argued that the plaintiff-respondent has proved the 'Talabs' in accordance with law and that the allowing of amendment in the plaint is well within the jurisdiction and legal powers of the Trial Court and the exercise of discretion thus cannot be termed as unlawful. It was further argued that the Revenue Record as well as statement of the Patwari is neatly clear to declare the plaintiff-respondent as co-owner in the suit property and that learned two Courts below have given concurrent findings of facts and controversy pertaining to the factual position cannot be raised in revision petition under section 115, C.P.C. After hearing the learned counsel for rival parties, record was thoroughly scrutinized in all its minute detail.

4. A perusal of the plaint together with the statement of Islam Gul plaintiff-respondent, recorded at the trial, indicates that one day when he was coming from his school known as 'Jamia Islamia Qadria Mudarrisul Islam' he met Safdar Ali and Haji Gul Mast Khan on his way from his school to his home. He was informed by Safdar Ali that his uncle had sold the suit property in favour of defendant-petitioner. According to his statement, he immediately announced in the presence of Safdar Ali and Haji Gul Mast that he would pre- empt the transaction. He further narrates in his statement that on the third day following the day aforementioned, he obtained the copy of the mutation and on the following day he obtained the extracts of Jamabandi. He further states that after obtaining the extracts of Jamabandi he immediately went to the office of his counsel and the notice of 'Talb-i-Ishhad' was transmitted to the defendant-petitioner the same day. The aforesaid narrative would indicate that the petitioner has very clearly indicated as to how and when he made the requisite 'Talabs'. The notice of 'Talb-i-Ishhad', as per record, was signed and sent on 22-2- 1990. If the time is computed in this perspective then the date of 'Talb-i-Muwathibat' comes to 19-2-1990 and it has been so calculated by the learned Appellate Court. Learned counsel for the petitioner could not lay hand on any misreading or non-reading by the learned two Courts below in this behalf. It is pertinent to point out that the notice of 'Talb-i-Ishhad' dated 22-2-1990 has been properly proved in accordance with law by the plaintiff respondent at the trial although the receipt of the notice has been acknowledged by Atiqur Rehman defendant in his statement at the trial recorded on 12-5-1991 as D.W.1. In this view of the matter, I find that the learned two Courts below have arrived at correct conclusion that the plaintiff-respondent has proved the notice of 'Talb-i-Ishhad' by adducing evidence and also in view of the admission by the defendant and that Talb-i-Muwathibat' has also been proved through the aforesaid notice as well as statement of Safdar Ali (P. W.3) and his own statement.

5. It was vehemently argued by the learned counsel for the petitioner that the learned Trial Court has prejudiced the defendant-petitioner by allowing amendment in the plaint whereby Khasra Number under pre-emption was allowed to be substituted because the plaintiff had exercised right of pre-emption over a wrong Khasra Number which is Khasra No. 1802. The plaint was perused in this behalf and it was found that about thirteen Khasra Numbers are included in the present suit and out of those one Khasra Number is 1802. It was found out later on that Khasra No. 1802 was inadvertently written in place of 1803 and a request for amendment was made which was allowed. The foregoing narration would indicate that it was an amendment for removing a clerical error and the said amendment did not change the complexion of the plaint nor the nature of the claim of the plaintiff-respondent. Therefore, the learned Trial Court was well within the four corners of law in exercise of discretion in this behalf.

6. The learned Trial Court had granted the decree on the basis of participation in immunities and the learned counsel for the petitioner attempted to derive the maximum premium out of these findings of the learned Trial Court. He attempted to push across the point that the learned Trial Judge has rejected the claim of the plaintiff for being co-sharer in the property and, therefore, he is on equal footing with the defendant-petitioner' who are also contiguous owners. But, this argument does not hold water in view of the evidence recorded at the trial. First of all, it is better to make resort to the statement of Patwari who has categorically stated that plaintiff Islam Gul is co-sharer in the suit land while defendant-petitioner is not seized of any such right, but, astonishingly, defendant-petitioner has not cross-examined him on this score nor he has made any suggestion to him that he was a contiguous owner with the suit property. Therefore, I hold that there is nothing on record to indicate that the petitioner is contiguous owner with the suit property. True that the learned Trial Court has granted the decree on the basis of immunities and not on the basis of co-sharership but the evidence in this behalf is very much clear and a scrutiny of record would clearly show that the plaintiff-respondent is co-sharer in the suit property as per Revenue Record and the rebutted statement of Patwari Halqa Therefore, the findings of the learned Trial Court on this score are the result of non-reading of evidence and are liable to correction. However, this Court is not required to correct the findings because the same has already been corrected by the learned Appellate Court by holding in its judgment dated 11-11-1991 that "It seems that Islam Gul the plaintiff-respondent is a co-sharer up to 42 shares from 2 shares of the total shares, therefore, it appears that he is a co-sharer and according to Exh.P.W. 1/4 he is also participater in the immunities and appendages." Such being the factual and legal position, I reject this plea of the petitioner.

7. As a sequel to the aforesaid narrative, I do not find any merit in this revision petition and, therefore, dismiss the same with costs. A.A./2202/P Revision dismissed.