2007 PLP 2869 (YLR)

SH. HAKIM ALI, J.

To pre-empt sale, having been made by Mst. Rehmat Bibi of agricultural lands, measuring 117 Kanals and 4 Marlas, situated in Chak No.60/Tehsil & District Kasur, one Mst. Mehtab Bibi had filed a suit for possession on the basis of her superior rights of pre-emption against Kalay Khan and four others, in the Court of learned Senior Civil Judge, Kasur on 28-9-1988. According to the contents of plaint, it was stated that aforesaid Mst. Rehmat Bibi had sold out her above noted land through registered sale deed dated 5-10-1987 for ostensible sale price of Rs.2,04,000 although actual price Rs.1,44,000 was paid only. Claiming her superior rights on the basis of "Shafi Sharik", "Shaft Khalit" and "Shafi Jar", the plaintiff pleaded that she was resident of Lahore and two months prior to the filing of the suit, she was informed with regard to the above noted sale in dispute, so she had performed immediately Talb-i-Muwathibat and thereafter Talb-i-Ishhad in presence of respectable witnesses. While- entering into the case to contest, defendants filed written statement controverting all these facts. As the suit was filed during interregnum period, so it was dismissed initially on 30-6-1990 but was resuscitated on 17-10-1992 and learned Senior Civil Judge on 28-9-1988 ultimately dismissed the suit. Appeal field against the aforesaid judgment and decree had also met with the same fate from the learned District Judge Kasur on 2-10-2001. Hence, this civil revision.

2. Learned counsel for the petitioner submits that as the suit was filed during the interregnum period therefore, it was not necessary for the plaintiff to prove the performance of Talb-i-Muwathibat. He has also argued that it was not necessary for the plaintiff to mention in the plaint, day, date, time and place of making Talib-i-Muwathibat. She was only required byprovision of section 35 of the Punjab Pre-emption Act 1991, to prove Talb-i-Ishhad in the presence of two truthful witnesses. Learned counsel has placed reliance upon 2007 MLD 820 (Mst. Tasneem Bibi and another v. Muhammad Ali and 8 others), 2003 MLD 14 (Muhammad Bakhsh v. Mst. Aziman and another), 1995 SCMR 440 (Rahim Bakhsh v., Mian Muhammad Shafi and 7 others) and 1994 CLC 1957 (Jamal Din and another v. Allah Bakhsh and another). According to the learned counsel details of Talbs in the plaint was not necessary to be given. He has referred for that proposition judgment of Honourable Supreme Court of Pakistan published in 2000 SCMR 314 (Altaf Hussain v. Abdul alias Abdul Majeed through legal heirs and another). As regard evidence, learned counsel submits that evidence of P.W.2 Khalid Pervaiz has wrongly been discarded by the learned Court below. It was not necessary for the plaintiff to repeat performance of Talb-i-Muwathibat at the time of Talb-i-Ishhad and it was also not necessary to mention place of performance of Talb-i-Muwathibat, in the plaint. Evidence of P.W.3 Muhammad Ismail was also wrongly disbelieved by the learned trial Court because he was not convicted by any Court of law. Mere admission of witness that conviction was ordered by Tehsildar was not believable because Tehsildar could not be considered a Court and having any such power to convict any person in contempt of. Court. In fact, witness being an illiterate person, he had not understood the question. Moreover, witness cannot be disbelieved in a civil case due to this fact that he was convicted of a criminal case of contempt. Muhammad Saleem, general attorney was competent to make statement on behalf of plaintiff. His mother had not sent notice under section 13(3) of the Punjab Pre-emption Act as it was not necessary under the law in force. Learned counsel has referred to 1999 SCMR 2309 Muhammad Hani v. Mst. Munwar Bibi alias Munawar Noor), PLJ 1995 Peshawar 62 (Muhammad Ilyas etc v. Khadim Hussain etc.), 2006 SCMR 1761. There was no need to mention Zarrar and Zaroorat in the plaint, as there was no issue framed for that purpose. Therefore, learned counsel submits that judgment of the learned appellate Court may be set aside and suit may be decreed.

3. On the other hand, learned counsel for the respondents submits that in para No.4 of the plaint, it was narrated by the plaintiff that she was informed with regard to the sale in dispute two months prior to the filing of the suit and at that time, she had performed Talb-i-Muwthibat and Talb i-Ishhad. It has also been submitted that Muhammad Saleem, special attorney while entering into witness box had stated that five years before, he had accompanied his mother to the house of Muhammad Ismail where performance of Talb-i-Muwthibat was performed and thereafter they had gone to the house of Kalay Khan for performance of Talb-i-Ishhad. Asper learned counsel, if this period is calculated it would be 9th July, 1988, while in cross-examination, he had deposed that they had gone to the house of Kalay Khan 3, 2-3/4 months before the filing of the suit which date would be of 28th June, 1988. Therefore, there was a material contradiction with regard to the performance of Talb-i-Ishhad and the learned Courts below had rightly disbelieved the evidence of Talb-i-Ishhad. Evidence of Muhammad Ismail was not credible because he was convicted from the Court of Tehsildar as was shown from his own admission. He was not a believable person. Evidence of Muhammad Ismail P.W.3 with regard to Talb-i-Muwathibat was also of such a nature that could not be believed. As per learned- counsel, in the plaint, no details were given but in the evidence improvements were made so as to bring the case within the ambit of performance of Talbs. There are concurrent findings of facts concluded on the basis of evidence rendered by both the learned Courts below that the plaintiff had failed to prove both the Talbs through cogent evidence therefore, these concurrent findings of facts may not be disturbed by this Court. Learned counsel further submits that statement of Zarrar and Zaroorat must have been noted in the plaint which was lacking. Therefore, the suit was not competent. He has placed reliance 2004 YLR 927 (Fazal Din v. Farzand Ali and others). Learned counsel further argues that the plaintiff himself has not appeared into witness box while evidence of her general attorney was not believable.

4. After perusal of the record and hearing of argument at great length, I have come to the conclusion that it is correct that in the suits filed during the interregnum period, under subsection (2) of section 35 of the Punjab Pre-emption Act 1991, it was sufficient if the pre-emptor had performed Talbs in the presence of two truthful witnesses, before the pronouncement of the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of the Punjab (PLD 1994 SC 1). It is also correct that Honourable Supreme Court of Pakistan has held that details of performance of Talb-i-Muwathibat was not necessarily be noted in the plaint and plaintiff could not be non-suited due to insufficient details in the plaint. But the question in this case which requires resolution is that as to whether Talb-i-Ishhad which the learned counsel for the petitioner 'submits was necessarily to be performed by the plaintiff was performed or not? It has been found that both the learned Courts below are in agreement on this point that plaintiff had failed to prove Talb-i-Ishhad. My own self-assessment regarding evidence has gone to confirm that the findings of the learned Courts below are correct due to following reasons:- Firstly it was necessary for the plaintiff to appear in Court to depose on Oath, with regard to the performance of Talb-i-Ishhad. Statement of Muhammad Saleem, special attorney cannot be ignored be believed, when plaintiff herself is present and can give her own evidence. The plaintiff was the best and material witness with regard to the performance of the Talbs. There is no reason as to why she had not appeared as her own witness in the suit, although she had gone to perform allegedly Talb-i-Ishhad herself and had gone to the house of Kalay Khan. etc. in the village. It appears that plaintiff has been knowingly withheld from appearance into the Court, so to save herself from cross question to be put to her during that process. Withholding of best evidence adversely affects truthfulness of plaintiff's version. Secondly in the plaint and in the narration part of para No.2, the inference is gained that she had obtained knowledge of sale in Lahore where she was residing. There is no inkling even in the plaint that she had gone to settle the alleged accounts with the son of Ismail in Chak No.59, Tehsil & District Kasur where she was imparted knowledge about the sale in dispute, and thereafter she had proceeded to the house ,of defendant for performance of Talb i-Ishhad. It appears that with the passage of time from filing of the suit in the year 1988 and till the production of evidence in the year 1993, a story was developed and concocted to prove Talb-i-Muwathibat and Talb-i-Ishhad. Otherwise facts noted in the plaint were not such that these were to display the performance of Talb-i-Muwathibat and Talb-i-Ishhad in the village. There is a clear improvement in the statement of special attorney Muhammad Saleem and of plaintiff's witnesses. Thirdly in para No.4 of the plaint, it was noted that plaintiff had come to the knowledge of sale two months prior to the institution of the suit while Muhammad Saleem deposed in the cross examination that 3, 2-3/4 months before, they had gone to visit Kalay Khan. They gained the knowledge and had immediately thereafter performed Talbs, this material contradiction come on the record which itself proved that there was no performance of Talb-i-Ishhad as stated by the witnesses. The period narrated in the 'plaint with regard to the performance of Talb-i-Muwathibat and Talb-i-Ishhad, by the witnesses has brought contradiction to each other, due to which the evidence of the witnesses has become doubtful. I am conscious of the fact that it was not necessary for the plaintiff to prove Talb-i-Muwathibat but the truthfulness of the evidence can be adjudged by their statements. The statement of Khalid Pervaiz P.W.2 that Mst. Mahtab Bibi had stood up when she had known about the sale having been made and had declared her intention to exercise her right of pre-emption. This fact is stated in a different way by P.W.3 Muhammad Ismail, who in another form stated that Mst. Mahtab Bibi had made a hue and cry and had made noise that she. would pay the amount (Sale money) and would get the land returned as she was in need of it. As regard the statement of P.W.3 Muhammad Ismail, it is correct that of Tehsildar is a Revenue Officer but the learned counsel has not adverted to this fact that Tehsildar when acts as Presiding Officer of the Revenue Court and exercises the jurisdiction and power he acts as a Civil Court. It was for P.W.3 to explain that he was not convicted from Revenue Officer or from the Revenue Court. As there was no explanation by P.W.3 therefore, at least his statement and admission had to be accepted as it. was told by him regarding the contempt of Court and the sentence he himself was admitting. It is going to affect the truthfulness of the witnesses. According to subsection (2) of section 35 of the Punjab Pre-emption Act 1991, it was necessary for the plaintiff to bring evidence of two truthfulness witnesses with regard to the performance of Talb i-Ishhad, in which he had failed. Fourthly, if we scrutinize the interestedness/partisan character of the witnesses, we find that Muhammad Saleem, general attorney P.W.1 is son of plaintiff, P.W.2 Khalid Pervaiz is cousin of Muhammad Saleem while son of Muhammad Ismail, P.W.3 is tenant of plaintiff, so the evidence of all these witnesses consisted of relatives and of interested witnesses., Not a single independent witness was produced to prove performance of Talb-i-Ishhad.

5. So cumulative effect of the evidence of the plaintiff is that there was no cogent, independent evidence of truthful witnesses of credible nature with regard to the performance of Talb-i-Ishhad, therefore concurrent findings of fact rendered by both the learned Courts below cannot be upset in this revisional jurisdiction. So, the instant civil revision is dismissed with no order as to costs. M.H./M-393/L Revision dismissed.