2015 PLP 324 (MLD)

WAQAR AHMAD SETH, J.

This judgment shall also dispose of the connected Civil Revision Petition No.318-A of 2012, as Mst. Kulsoom Begum after remand of case by this Court applied for transfer of main suit from the trial court to any other court of competent jurisdiction, which was declined.

2. Mst. Kalsoom Begum plaintiff instituted a suit for possession through pre-emption regarding the property fully described in the heading of the plaint against Rizwan Shah and others defendants. The defendants appeared and contested the suit by filing written statement. Learned trial Court after recording pro and contra evidence and hearing the parties decreed the suit of respondent vide judgment and decree dated 30-11-2006. Feeling aggrieved, the petitioner preferred appeal and learned appellate Court after hearing the parties dismissed the same vide judgment and decree dated 16-10-2008. Rizwan Shah and others feeling dissatisfied filed Civil Revision No.225 of 2008, which came up for hearing on 2-4-2012 and the then honourable Judge of this Court on acceptance of the same, set aside the judgments and decrees of the courts below and remanded the case back to the trial court for re-decision after hearing the learned counsel for the parties on merits. Hence, these civil revision petitions. Feeling dissatisfied Mst. Kulsoom Begum plaintiff filed Civil Appeal No. 1124 of 2012 and the apex Court after hearing the parties set aside the judgment and decree of this court dated 2-4-2012 and remanded the case for decision on merits in accordance with order dated 6-8-2009. It would be appropriate to reproduce below the order of the apex Court dated 6-8-2009 passed in CP No.93/2009:-- "After arguing the matter at some length, the learned ASC on behalf of petitioners does not want to press this petition. However, the learned High Court is directed that the matter be decided in accordance with law and on merits after affording proper opportunity of hearing to all concerned. The petition is accordingly disposed of in above terms".

3. Arguments heard and record perused.

4. At the very outset the learned counsel for respondent raised a preliminary objection with regard to the maintainability of the revision petition for not impleading petitioners Nos.2 and 3 through their next friend, as were before the trial Court. In this respect learned counsel for the petitioner referred to ground "A" of the revision petition wherein it is provided that at the time of filing of civil revision they had become major. The preliminary objection is not sustained.

5. On merits of the case the record reveals that the names of witnesses of notice Talb-e-Ishhad are missing in the plaint. In the plaint in para-2 respondent/plaintiff has clearly mentioned that she got the information of sale dated 27-1-2003 at 01.0 p.m. at her residence when she returned from Hajj from her brother and in the same 'majlis' made the Talb-e-Muwathibat (no other member of majlis was named). In para-3 of the plaint no names of witnesses of notice talb-e-ishhad are mentioned.

6. Although respondent/plaintiff has mentioned in para 4(i) of the plaint that she is khata shareek owner but record reveals that the day talb dated 24-2-2003 (Muwathibat) and 27-2-2003 (Ishhad) were made she was not owner/co-owner or adjacent owner. Statement of P.W.2 Patwari Halqa is relevant, who produced the Aks Shajra Kishtwar Exh.P.W.2/2 and admitted that respondent/plaintiff is not co-owner, which negates the claim of respondent/plaintiff.

7. P.W.4 is the statement of respondent/plaintiff, which contradicts the story mentioned in the plaint and notice Talb-e-Ishhad. She for the first time introduced Mushtaq Khan along with his brother Changez Khan, who were present in her house, when she reached. In the presence of both named persons she made the Talb-e-Muwathibat. Mushtaq is new character on spot.

8. The addition of becoming angry and feeling shocked of the information of sale and purchase by petitioner/defendant, the story is alien to the plaint and notice Talb-e-Ishhad. Moreover, the jumping demand, which is in a spur of moment is missing. She stated in her statement that her peon made the registry of notice but said peon was not produced in the witness box as petitioner/defendant in his written statement stated that he has not received the notice Talb-e-Ishhad. The cross-examination of P.W.4 is more contradictory one. Initially she admits that statement of Sharin Afzal was recorded on mutation on 9-1-2003 then she resiles. She said that she signed the plaint then said she did not. On return from Hajj she remained in Karachi for 3/2 days with no proof of coming back to Mansehra on 24th, which stance seems doubtful. She further improved her statement by introducing her servant, clerk and his father in her home. She admits that she talked to her brother for 2 hours and then took food, hence, time of Talb-e-Muwathibat is doubtful. The presence of servant, clerk and his father is admitted but none of them has been produced in the witness box nor mentioned in notice talb-e-ishhad including Mushtaq Khan.

9. P.W.5 is the statement of Mushtaq Ahmed, who is neither named in the plaint nor in the notice Talb-e-Ishhad, stated that he along with brother of respondent/plaintiff reached the home simultaneously whereas P.W.4/plaintiff said that both were present in the house when she came. P.W.5 introduced one Chowkidar in the home also and contradicts P.W.5 on arrival at home, taking food and talk time.

10. P.W.6 is the brother/informer of P.W.4/plaintiff and contradicted P.W.4 to the extent of sending her to Hajj from Mansehra and not from Airport, as alleged by P.W.4. This witness does not know the time of information given to respondent/plaintiff and he introduced yet another person present at that time namely Sarfraz.

11. P.W.7 is Sarfraz, who is not named in the statements of P.Ws.4 and 5 but for the first time in the statement of P.W.6 only has stated that upon information by Changez Khan respondent/plaintiff became angry and then making us including Mushtaq Khan made the Talb-e-Muwathibat. He says that he see off the plaintiff for Hajj from Islamabad Airport and denied the presence of Changzeb Khan brother of plaintiff, totally contradicting the story put forward by P.Ws. 4 and 5 and even P.W.6. He further stated in cross-examination that he went to receive back plaintiff from Hajj to Peshawar Airport on 20-2-2003 and then came back to Mansehra. This witness is ignorant regarding the correctness or otherwise of notice Talb-e-Ishhad.

12. In addition to the above contradictions, plaintiff claimed co-ownership in the suit property on the basis of Mutation No.55132 dated 15-1-2004, which was attested on the basis of consent decree passed in 1976, meaning thereby that all the talbs were made prior to mutation of co-ownership. Moreover, the consent decree is not on record nor produced, hence, the provisions of Order XIII, Rules 1 and 2, C.P.C. have been violated.

13. Both the courts below have admitted contradictions regarding making of Talb-e-Muwathibat, without discussing the evidence and pin pointing the contradictions, but declared the same as minors.

14. Different P.Ws. introduced different versions regarding the time of Talb-e-Muwathibat but none of them were either named in the plaint and notice Talb-e-Ishhad or cited in the witness box, which is fatal to the right of pre-emption. In this respect reliance is placed on the case of Muhammad Mal Khan v. Allah Yar Khan reported as 2002 SCMR 235(c) wherein it has been held as under:-- "S.13

Qanun-e-Shahadat (10 of 1984), Art. 129(g)

Pre-emption suit

Talb-i-muwathibat

Proof of

Solitary statement of pre-emptor

Failure to produce witness in whose presence Talb-i-Muwathibat was made

Effect

Pre-emptor though had named a person in whose presence Talb-i-Muwathibat was made but that person was not produced as witness before the trial Court

Trial Court decreed the suit on the solitary statement of the pre-emptor regarding making of Talb-i-Muwathibat

Appellate Court having found Talb-i-Muwathibat as not proved dismissed the suit and such finding of appellate court was affirmed by High Court in exercise of revisional jurisdiction

Validity

Legal presumption in the absence of any explanation by pre-emptor as to why the witness was withheld from examining as his witness would be that in case the witness had been produced, his deposition must have been against the pre-emptor

Supreme Court declined to interfere with concurrent conclusion reached by the appellate court and High Court".

15. In the case of Munawar Hussain and others v. Afaq Ahmed reported as 2013 SCMR 721(a), it was held:-- "

13. Suit for pre-emption

Talb-e-muwathibat

Failure to mention particulars of performance of Talb-e-Muwathibat

Effect

Plaintiff failed to mention names of persons in whose presence Talb-e-Muwathibat was made

Plaintiff (pre-emptor) while appearing as witness did not mention the date, time and year of performance of Talb-e-Muwathibat

Another witness who appeared on behalf of pre-emptor failed to mention date, time and place of performance of Talb-e-Muwathibat

Omission to mention such particulars was fatal for the suit for pr-emption ".

16. In the case of Samandar Khan v. Khan Hakim reported as 2011 CLC 899 (a) it has been held:-- "S.13

Pre-emption suit against several sale mutations

Talb-e-Muwathibat, performance of

Proof

Date, time and place of performance of such talb mentioned in plaint, but failure of pre-emptor and his witness to point out during evidence place where such talb was made

Pre-emptor's admission during cross-examination that he did not remember that how many times he made such talb

Effect

Mentioning of date, time and place of performance of such talb in plaint and evidence was necessary, if anyone of them was missing, then such talb would be incomplete

Plaintiff was required to make such talb in respect of each sale mutation

Nothing on file and in pre-emptor's evidence was available to show that as to how many times such talb was made by him

Plaintiff had failed to prove performance of such talb in accordance with law

Suit was dismissed in circumstances".

17. The apex Court in the case of Amir Muhammad v. Muhammad Ashraf reported as 2001 MLD 1716(b) held:-- "S.13

Pre-emption suit

Talb-i-Ishhad, notice of

Copy of such notice available on record

Defendant's denial to have received such notice

Plaintiff's plea that he did not receive AD card of such notice

Non-examination of postman by plaintiff in proof of service of such notice upon defendant

Validity

When AD card was not available or produced, then examination of postman as witness in support of service of such notice would become necessary

In case of failure to produce and examine postman, presumption would be that such notice was not received by defendant

Talb-i-Muwathibat had become defective on account of non-production of AD card and non-examination of postman

Plaintiff had become disentitled to pre-empt suit land

Suit was dismissed in circumstances".

18. The petitioner has denied the receipt of notice Talb-e-Ishhad but respondent/plaintiff failed to prove its service and also failed to produce postman in the witness box. The apex Court in the case of Amir Muhammad v. Muhammad Ashraf reported as 2001 MLD 1716(b) held:-- "S. 13

Pre-emption suit

Talb-I-ishhad, notice of

Copy of such notice available on record

Defendant's denial to have received such notice

Plaintiff's plea that he did not receive AD card of such notice

Non-examination of postman by plaintiff in proof of service of such notice upon defendant

Validity

When AD card was not available or produced, then examination of postman as witness in support of service of such notice would become necessary

In case of failure to produce and examine postman, presumption would be that such notice was not received by defendant

Talb-i-Muwathibat had become defective on account of non-production of AD card and non-examination of postman

Plaintiff had become disentitled to pre-empt suit land

Suit was dismissed in circumstances".

19. Apart from the above, reliance is placed on 2013 YLR 2566(a), 2007 SCMR 1105(b), 2009 MLD 549, 2013 YLR 947(a), 2013 YLR 2530 and PLD Peshawar 116(b)(sic).

20. As pointed out there are a number of material discrepancies in the statements of witnesses which could not be termed as 'minor' for the purpose of right of pre-emption. Reliance in this respect is placed on the case of Allah Ditta v. Muhammad Anar reported as 2013 SCMR 866(a), wherein it has been held as under:-- "S.13-Suit for pre-emption

Talb-i-Muwathibat, witnesses of

"material discrepancy" in statements of witnesses regarding place where pre-emptor got knowledge of sale of suit land

Effect

Witnesses appearing on behalf of pre-emptor stated that disclosure of sale of suit land was made when pre-emptor was sitting inside a shop and the informer (son of pre-emptor) stated in his evidence that they were sitting outside the shop

Such discrepancy was a 'material discrepancy'

Appeal was allowed and suit for pre-emption stood dismissed in circumstances".

21. In the case of Said ul Haq v. Janas Khan reported as 2013 MLD 350(a) it was held:-- "S.13

Pre-emption suit

Talb-i-Muwathibat and Talb-i-Ishhad, performance of

Discrepancies/contradictions in statements of plaintiff's witnesses regarding performance of Talb-i-Muwathibat and signing of notice of Talb-e-Ishhad

Effect

Such discrepancies in proceedings of pre-emption, which by its nature was practical, would be significant and could not be ignored and overlooked so conveniently

Suit was dismissed in circumstances".

22. In view of the above, the major contradictions and legal requirements besides misreading and non-reading of evidence on record, the impugned judgments and decrees of lower courts are liable to be set-aside and suit of plaintiff/respondent is also liable to be dismissed.

23. Consequently, Civil Revision Petition No.225 of 2008 is allowed, impugned judgments and decrees of the courts below are set aside and suit of plaintiff Mst. Kulsoom Begum stands dismissed whereas, in view of the above, C.R. No.318-A of 2012 having become infructuous stands dismissed. No order as to costs. AG/469/P Revision allowed.