2008 PLP 1 (CLC)

MIAN HAMID FAROOQ, J.

One Rana Nehmat Ali son of Chajoo exchanged land measuring 20 Kanals, 12 Marlas (described in the plaint) with the respondent of his land measuring 4 Kanals through exchange deed registered on 20-8-1996. The petitioner, on 7-12-1996, filed the suit for possession through pre-emption in respect of the suit-land, against the respondent, inter alia, pleading that, in fact, the respondent purchased the suit-land for a total consideration of Rs.75,000 but with a view to defeat petitioner's superior right of pre-emption, the transaction was given colour of exchange; the petitioner came to know about the said transaction on 26-11-1996 through one Talib Hussain Shah and he in the same Majlis pronounced "Talb-e-Muathibat" in presence of the witnesses; notice under registered cover attested by the witnesses was also sent to the respondent, which was not replied by him and he claimed his superior right of pre-emption being co-sharer in the same Khata and property of the petitioner is contiguous with the suit-land. The respondent resisted the suit through written statement, raising preliminary objections, including the one that the transaction was an exchange and not a sale, controverting the contents of the plaint and asserting that the petitioner did not make the requisite Talbs as required under the law. The learned trial Court framed as many as 12 issues, recorded the evidence of the parties and in the ultimate analysis concluded that the petitioner has failed to prove mandatory Talbs, transaction was exchange instead of sale and thus proceeded to dismiss the suit with compensatory costs of Rs.10,000 vide judgment and decree dated 30-7-2004. The petitioner though challenged the said decree in the appeal but the learned Additional District Judge maintained the findings of the learned trial Court and dismissed the appeal, vide impugned judgment and decree dated 7-3-2005, hence the present revision petition.

2. Learned counsel states that both the judgments are not sustainable in law. He, when confronted with the latest law on the subject laid down by the Honourable Supreme Court of Pakistan in the case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.R.s. and others PLD 2007 SC 302 in juxta position with para.4 of the plaint, has stated that although the petitioner has not pleaded in the plaint, the time and place of performance of Talb-e-Muwathibat, yet, he has so deposed in his statement, when he appeared as P.W.1.

3. I have heard the learned counsel and perused the available record. The petitioner in para.4 of the plaint, has simply stated that he came to know about the sale qua the suit-land on 26-11-1996 through Talib Hussain Shah and in the same Majlis, he announced to exercise his right of pre-emption. A portion para.4 of the plaint is reproduced below : - It is evident from the said reproduction of portion of para.4 of the plaint that the petitioner has narrated the date of performance of "Talb-e-Muwathibat", but he did not mention the place and time of performance of "Talb-e-Muwathibat" inasmuch as he did not state as to how the-plaintiff came to know about the sale. It is now settled law that it would be mandatory for a plaintiff to mention in the plaint the date, place and time of performance of "Talb-e-Muwathibat". The Honourable Supreme Court of Pakistan in a case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 has held that to give full effect to the provisions of section 13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of "Talb-e-Muwathibat". Here it appears appropriate to reproduce a portion of para.4 of the judgment, which really clinches the matter and reads as follows: . "It is observed that great emphasis and importance is to be given to this word in making of "Talb-e-Muwathibat" and it is necessary as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing "Talb-e-Muwathibat", in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of "Talb-e-Ishhad" as soon as possible after making "Talb-e-Muwathibat" but not later than two weeks from the date of knowledge of performing "Talb-e-Muwathibat" therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of "Talb-e-Muwathibat" because from such date, the time provided by the statute, i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of "Talb-e-Muwathibat" then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of "Talb-e-Muwathibat" in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of "Talb-e-Ishhad". It is now a well-settled law - that performance of both these Talbs successfully in sine qua non for getting a decree in a pre-emption suit..." As the petitioner, admittedly, did not mention time and place of performance of "Talb-e-Muwathibat" in the plaint, therefore, in view of the latest law on the subject, as noted above, petitioner's suit deserves to be dismissed on this short ground.

4. As regards the solitary contention raised by the learned counsel for the petitioner, the same is devoid of any force. As noted above, the petitioner did not state the time and place of performance of "Talb-e-Muwathibat" in the plaint, thus the petitioner could not subsequently improve his case in evidence. It is settled law that a litigant has to first plead facts and pleas in the pleadings and then to prove those facts/pleas through evidence. A party is not allowed under the law to improve his case from what was originally set up in the pleadings. The principle of secundum allegata et probata on all fours is applicable to the facts of the case, which means that a fact has to be alleged by a party before it is allowed to be proved. Order VI rule 2 and Order VIII rule 2, C.P.C. enunciates the said principle. It is settled laws that a party is not allowed to lead evidence in respect of a plea which was not taken in the pleadings and even if the evidence was led, the same could not be considered as evidence in the case. If any cases are need judgments reported as Pakistan v. Abdul Ghani PLD 1964 SC 68, Messrs Choudhary Brothers Ltd. Sialkot v. The Jaranwala Central Cooperative Bank Ltd. Jaranwala and others 1968 SCMR 804, Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad PLD 1976 SC 469, Qabil Shah and others v. Shaday PLD 1992 Pesh. 144, Muslim Commercial Bank Limited v. Syed Ahmad Saeed Kirmani 1991 CLC 140, Mst. Manzoor Mai v. Abdul Aziz. 1992 CLC 235 and Karim Bakhsh v. Gul Rehman 1990 CLC 1200. In view whereof, if the petitioner has stated the time and place of performance of "Talb-e-Muwathibat" in his statement that could not in any way advance his case and he cannot succeed on this ground.

5. I have examined both the judgments and find that both the courts, after adverting to the evidence on record, both oral as well as documentary, rightly came to the conclusion that the petitioner is not entitled for any relief. Although this Court, in exercise of its revisional jurisdiction, when the findings of facts are concurrent, is not required to re-appraise the evidence on record, yet in the interest of justice, I have examined the evidence on record and find that the findings rendered and conclusions arrived at by both the courts are not only in accordance with the record of the case but also inconsonance with the law on the subject. No misreading or non-reading has either been urged or pointed out by the learned counsel. I feel that both the Courts while deciding the matter did not commit any illegality or material irregularity, therefore, there is no justification to interfere in the impugned judgments in exercise of the revisional jurisdiction of this Court.

6. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

7. The concurrent findings of facts were recorded by both the courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

8. It is settled law that concurrent findings of facts, based on evidence, are not liable to be interfered in the exercise at jurisdiction under section 115, C.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346, Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431, Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647, Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314, Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329, Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293.

9. In view of the above, the present revision petition is devoid of merits, hence stands dismissed. M.H/A-220/L Revision dismisse