P L D 2012 Peshawar 147 (PLP)

SYED SAJJAD HASSAN SHAH, J.

By this single judgment, I propose to dispose of the instant C.R. No.335 of 2006 and the connected C.R. No.352 of 2006 as both the petitions are the outcome of one and the same judgment and decree dated 29-11-2006 passed by learned Additional District Judge-I, D.I. Khan.

2. Briefly stated the facts of the case are that Sheikh Abdul Jabbar petitioner-plaintiff filed a suit for possession through pre-emption in respect of the property detailed in the heading of the plaint. He averred in his plaint that Abdul Wadood Khan was the owner of suit property who sold the same in favour of Ghayasuddin respondent-defendant vide registered deed No.1893 attested on 12-8-2002 on payment of Rs.1,00,000 but in order to defeat the pre-emption right of the petitioner-plaintiff, a sum of Rs.4,00,000 was entered in the registered deed. He further averred that on acquiring the knowledge of the sale through one Muhammad Amin on 30-8-2002 at 5 O'clock at the Chowk of Muhammad Shafi, he there and then, in the presence of informer, declared his intention to pre-empt the suit land. Thereafter, he sent the notice to the respondent-defendant attested by Muhammad Amin and Salahuddin through registered cover A/D which was received by him. He further averred that being co-sharer, contiguous owner and participator in immunities and appendages, he has got superior right of pre-emption.

3. The respondent-defendant contested the suit by filing his written statement on variety of grounds. He averred that a sum of Rs.4,00,000 was paid by him to the vendor through cheque No.PB 2611291 dated 10-8-2002. He also averred that the petitioner-plaintiff has not performed the Talbs in accordance with law, thus, he has waived his right of pre-emption. The learned trial Court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-VI, D.I.Khan vide judgment dated 27-10-2005, decreed the suit of petitioner-plaintiff for a sale consideration of Rs.1,33,560.

4. Feeling aggrieved from the judgment and decree of the learned trial Court, the respondent-plaintiff filed appeal. The learned Additional District Judge-I, D.I.Khan vide judgment dated 29-11-2006, partially accepted the appeal and enhanced the sale consideration up to Rs.4,00,000 as mentioned in the registered deed. Both the parties are aggrieved from the judgment and decree of the learned appellate Court and have filed the instant revision petitions.

5. The learned counsel for the petitioner-plaintiff confined his arguments to the findings of the learned appellate Court to the extent of market value of the suit property. In support of his arguments, he relied upon Mutation No.1930 attested on 12-10-2002 wherein Rs.1,00,000 was fixed as market value of the property by the Court while deciding the pre-emption Suit No.596/1 on 1-7-2002 in respect of some adjacent property. He also relied upon Mutation No.1788 dated 23-12-2001 whereby the land measuring 110 kanal 05 marla was purchased by the respondent-defendant for a sale consideration of Rs.99,

225. He pointed out that the learned trial Court has relied upon five years average and fixed a sum of Rs.1,33,

560. He further contended that the respondent-defendant has shown an inflated amount of Rs.4,00,000 in the registered deed. He argued that the amount mentioned in Cheque No.PB 2611291 dated 10-8-2002 was drawn by the vendor, however the excess amount of Rs.3,00,000 was returned back to the respondent-defendant after its drawl from the Bank.

6. As against that, the learned counsel for the respondent-defendant supported the judgment of the learned appellate Court to the extent of market value, however, he has challenged the findings of the Courts below in respect of Talbs. He contended that the sale consideration was paid through Cheque No.PB 2611291 dated 10-8-2002 on the day of attestation of registered deed which was encashed by the vendor and the same amount has been mentioned in the registered deed. No ostensible amount has been shown or recorded in the registered sale-deed. He further contended that the petitioner-plaintiff failed to perform the requisite Talbs in accordance with law, because the number of notice issued by the post office is not tallying with the postal receipt produced on record. He further argued that the petitioner-plaintiff has failed to prove the receipt of notice by the respondent defendant, as such, has failed to perform Talb-e-Ishhad in accordance with law.

7. I have considered the arguments of learned counsel for the parties and carefully perused the record.

8. As far as the objection of learned counsel for the respondent-defendant regarding performance of Talb-e-Ishhad is concerned, suffice it to say that during cross examination, the respondent-defendant categorically admitted that he received the notice of Talb-e-Ishhad in the following words:-- The above admission of the respondent-defendant enjoys the blessing of Article 113 read with Articles 30 and 31 of Qanun-e-Shahadat Order that once a fact is admitted, it needs not to be proved. After such admission, the petitioner-plaintiff is absolved of the burden of proof and the findings rendered by the learned Courts below are in accordance with law, hence, cannot be interfered with by this Court in exercise of revisional jurisdiction.

9. It is mentioned in the registered deed that payment of sale consideration was made through Cheque No. PB 2611291 dated 10-8-2002 valuing Rs.4,00,

000. The cheque valuing Rs.4,00,000 is available on record as Exh.D.W.1/1 which was encashed by Abdul Wadood vendor. The entry of cheque is also available in the statement of accounts Exh.D.W.1/1 maintained by Ghayasuddin respondent-defendant. To this effect an entry has also been made in Exh.D.W.1/2 showing encashment of the said cheque. The documents were produced in the statement of Juma Khan OG-III, UBL, Circular Road Branch, Head Office, D.I.Khan. None of the documents have been objected by the petitioner-plaintiff. The documentary evidence as adduced by the respondent-defendant has not been rebutted by the petitioner-plaintiff by means of any valid documentary evidence. The learned counsel for the petitioner-plaintiff tried to persuade the Court that after receiving the amount of Rs.4,00,000 from the Bank, the vendor had returned a sum of Rs.3,00,000 the balance amount, to the respondent-defendant out of the Bank. When asked that any evidence has been brought on record to substantiate the plea of the petitioner-plaintiff, the learned counsel for the petitioner-plaintiff was unable to answer the query of the court. In view of the above material, the respondent-defendant succeeded to prove the payment of Rs.4,00,000 as the sale consideration of the suit property which was duly paid by him to the vendor. The findings of the learned appellate court to the extent of market value are based on proper appraisal of evidence on record and the judgment needs no interference.

10. For the reasons mentioned above, there is no force in the instant revision petitions which are hereby dismissed with no order as to costs. As per judgment of the learned appellate court, the petitioner-plaintiff has already deposited a sum of Rs.1,33,

786. He is directed to deposit the remaining amount within a period of thirty days, failing which, his suit shall stand dismissed. H.B.T./53/P Petition dismissed.