2013 PLP 2555 (YLR)

CH. MUHAMMAD YOUNIS, J.

Briefly stated the facts relevant for the disposal of the instant Civil Revision are that Mst. Parveen Bibi and Mst. Sakina Begum widows of Mehmood Khan made a gift of land measuring 40 Kanals and 02-Marlas bearing Khasra No.82, Khatooni No.415 situated in village Katarian Tehsil Hassan Abdal District Attock valuing Rs.60,000 vide Mutation No. 88 dated 30-8-1995 in favour of the respondent. The petitioner filed a suit for possession through pre-emption against the respondent contending therein that actually the transaction was a sale against a consideration of Rs.60,000 but in order to deter the petitioner from exercising his right of pre-emption the said sale was shown to be a gift. The petitioner came to know of the sale through P.W. Khanzada on 3-9-1995 at 4-00 p.m. in presence of P.W. Muhammad Ashraf so he immediately made Talb-e-Muwathibat in presence of both the above mentioned witnesses and thereafter, Talb-e-Ishhad was also made on 14-9-1995 by sending a notice attested by two witnesses through registered A.D. The petitioner claimed his right of pre-emption on the basis of contiguity and being a co-sharer.

2. The respondent vehemently resisted the suit and averred in the written statement that the transaction in dispute was in fact a gift and not a sale so the suit was liable to be dismissed as the transaction of gift was not pre-emptible. The respondent also controverted the contention of the petitioner regarding fulfilment of Talbs.

3. Out of the divergent pleadings of the parties the learned trial Court framed the following issues:-- ISSUES. (1) Whether the impugned transaction is that of sale and the same has been given the colour of gift transaction just to defeat the pre-emption? OPP (2) If issue No.1 is proved, whether the plaintiff has got superior right of pre-emption? OPP (3) Whether the plaintiff made 'Talbs' in accordance with Islamic Law of Pre-emption? OPP (4) If issue No.1 is proved, what was the actual amount paid or fixed in good faith as sale price of suit property? OPP (5) If issue No.4 is not proved, then what was the fair market value of the suit property at the time of impugned sale? OPs (6) Whether the suit is vexatious one and defendant is entitled to special costs, if so, to what extent? OPD (7) Relief:

4. After recording the evidence of both the parties and hearing the arguments the suit of the petitioner was dismissed by the learned Civil Judge Attock vide impugned judgment and decree dated 12-12-2000. The petitioner filed an appeal but it also met with the same fate and was dismissed by the learned Addl: District Judge Attock vide impugned judgment and decree dated 9-6-2011.

5. Feeling aggrieved of the impugned judgments and decrees passed by both the courts below this revision petition has been filed on the grounds that the same are against law and facts; that the findings on issue No.1 suffer from patent illegalities being in utter disregard of the provisions of Article 71 of Qanun-e-Shahadat Order, 1984; that the testimony of P.W.1 Barkat Ali and P.W.3 Khanzada was discarded illegally considering it to be hearsay; that the evidence of P.W.1 Barkat Ali could not be disbelieved as he happened to be the real brother of Mst. Parveen Bibi and had earlier struck a bargain in respect of the suit land with the petitioner on behalf of his sister and had received earnest money but after transfer of the disputed land in favour of the respondent he had to return the same; that the gift was not proved; that the admission of the respondent (Exh.P7) in a previous proceeding was not given any weight and by doing so both the courts below have committed material irregularity.

6. The learned counsel for the petitioner argued that from evidence on the record the transaction in dispute was proved to be a sale and not a gift. The onus was on the respondent/beneficiary to prove the gift in his favour but he failed to do so. The earlier statement of the respondent was confronted to him in cross-examination but both the courts below did not take the same into consideration and illegally held that the admission in some other proceedings could not be used in the instant case. The statement of P.W.1 Barkat Ali brother of the vendor Mst. Parveen Bibi could not be brushed aside. The learned counsel further maintained that statements of P.W.1 and P.W.3 read with the admission of the respondent fully proved the contention of the petitioner and the said evidence could not be ignored. The learned counsel has referred to the provisions of Article 71 of Qanun-e-Shahadat, 1984 and maintained that statement of P.W.1 Barkat Ali and P.W.3 Khanzada could not be said to be hearsay in the light of the said provision of law.

7. On the other hand, the learned counsel for the respondent vehemently opposed the petition and argued that the transaction was not a sale. It was a gift and mentioning of value of land in the mutation does not mean that it was sold for consideration because the same is mentioned for the purposes of collection of tax etc. He argued that transaction in dispute being gift was not pre-emptible. The onus to prove the transaction to be a sale was on the petitioner who failed to discharge the same. The previous statement of the respondent in some other proceedings could not be used as admission. Even otherwise the respondent clarified that he had not previously stated that he had purchased the land rather he stated it to have got as gift. The learned counsel maintained that the best evidence of the Patwari and Molidad who had allegedly informed the P.Ws. about the sale was withheld by the petitioner so the inference is to be drawn against him. He further maintained that the scope of the revision is very limited and the concurrent findings of both the courts below are normally not to be interfered by this court. He referred to 2004 CLC 1884 (Muhammad Anwar v. Muhammad Rafiq), PLD 1989 SC 749 (Barkhurdar v. Muhammad Razzaq) and 2003 YLR 1496 [Lahore] (Muhammad Aslam and another v. Mst. Sardaran Bibi) in support of his arguments.

8. I have considered the arguments advanced from both the sides.

9. The onus of issue No. 1 which was of pivotal importance was on the petitioner who claimed the transaction to be sale. Both the courts below held that the petitioner failed to produce any independent and direct evidence to discharge the onus of this issue. The emphasis of the learned counsel for the petitioner was that the evidence of P.W.1 and P.W.3 could not be discarded or disbelieved and could not be said to be hearsay. There is no cavil to the proposition that oral evidence must be direct to prove some fact. The question arises as to how the petitioner came to know of the sale. He claims that P.W.3 Khanzada told him about the sale. He can be a witness of Talb-e-Muwathibat but it is subject to proof of transaction to be a sale. The said P.W. Khanzada stated that he was told by the Patwari about it. The courts below rightly held that the said Patwari could be the best witness to state that the transaction was a sale. The Patwari was withheld and the inference would be drawn against the petitioner under Article 129(g) of Qanun-e-Shahadat, 1984, which is reproduced as under:-- The Court may presume: "that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it"

10. On this point reliance is placed on 2003 YLR 1496 Lahore (Muhammad Aslam and another v. Mst. Sardaran Bibi) wherein it was held by this court that with holding of or non-production of witness from whom the pre-emptor came to know of the sale gave rise to an adverse inference against the pre-emptor in the light of the provisions of Art. 129(g) of Qanun-e-Shahadat, 1984. Even if it may not be strictly considered to be hearsay, it is of no evidential value being not the direct evidence of sale. As regards the evidence of P.W.1 Barkat Ali he admitted that he was not present at the time of the mutation or transaction and came to know of it 5/6 days after the mutation from one Molidad but the said person was also never produced so he could not say with certainty that it was a sale. As regards some previous bargain it has no relevancy in the case and the said witness may have grudge against his sister for not having honoured his commitment with the petitioner. As regards the admission of the respondent in some other proceedings it cannot be used as admission as the said statement has to be considered with reference to the context of the earlier litigation and only one sentence in cross-examination cannot be read in isolation. The petitioner had to stand on his own legs and had himself to prove the transaction to be a sale and that sale consideration was paid for it by the respondent. It is not the case where beneficiary was to prove the gift and on this point reliance is placed on 2004 CLC 1884 (Muhammad Anwar v. Muhammad Rafiq), wherein it was held that "the principle that beneficiary of gift has to prove it cannot be applied to a case when existence or validity of gift is challenged by the third person." As regards the admission of respondent (Exh.P7) I would rely on PLD 1989 SC 749 (Barkhurdar v. Muhammad Razzaq) wherein it was held that admission which was wrong on a point of fact or is made in ignorance of legal right has no binding effect on the person making it. On the point of admission of fact reliance is also placed on 2001 YLR 1103 Lahore (Muqarrab Hussain through Legal Heirs and another v. Pirzada Muhammad Rafiq through Legal Representatives) wherein it was held that "admission would be relatable only in proceedings in which they were made and could not be used as admission for the purpose of other suit which had been tried on its own merits in the light of evidence recorded herein."

11. On the point of gift, I would like to refer to 2005 CLC 1099 Lahore (Muhammad Din v. Ikram Ali) and 2004 CLC 1315 (Lahore) (Muhammad Munir v. Naseer Ahmed) wherein it was observed that "no bar in law exists against gifting the only land owned by the donor to anybody he liked and assigning some reason by donor for making a gift was not the requirement of law".

12. In the light of the above discussion I am of the view that both the courts below after proper appraisal of evidence on the record rightly answered issue No. 1 in negative and it was rightly held that the petitioner had failed to prove the transaction to be a sale or that any sale price was paid to the vendors by the respondent. The concurrent findings of both the courts below are normally not interfered by this court in revisional jurisdiction. The scope of the revision is very limited. The revisional jurisdiction can only be exercised for correction of jurisdictional defect/error and material irregularities/illegalities resulting in miscarriage of justice. On this point I rely on 2012 SCMR 730 (Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad), and 2012 SCMR 508, (Abdul Khaliq (deceased) through L.Rs. v. Ch. Rehmat Ali (deceased) through L.Rs. and others) wherein it was held that the revisional jurisdiction can be exercised if the findings of the courts below are found to be arbitrary, perverse, fanciful and based on misreading or non-reading of material pieces of evidence.

13. In the instant case the concurrent findings of both the courts below suffer from no jurisdictional defect/error or legal infirmity, illegality, irregularity or perversity so the same warrant no interference by this court in exercise of its revisional jurisdiction. The revision petition is thus dismissed. SAK/A-69/L Revision dismissed.