2006 PLP 2682 (YLR)

SHEIKH AZMAT SAEED, J.

This revision petition is directed against the appellate judgment and decree, dated 14-9-2005 whereby the appeal filed by the respondent was accepted.

2. Brief facts leading to the filing of the present petition are that the petitioners filed a suit for possession through pre-emption in respect of the property in dispute purported to have been transferred to the respondent on 31-3-1996. The petitioner claimed a superior right of pre-emption, disputed the quantum of consideration mentioned and claimed to have performed the `Talbs' in accordance with law. The respondent entered appearance and contested the suit controvert the contentions raised in the plaint. It was specifically denied that Talbs have been found in accordance with law or within the time specified there for. On the divergent pleadings of the parties issues were framed, evidence was led and where after the trial Court vides its judgment, dated 21-2-1999 decreed the suit in favour of the petitioners. However, the trial Court held that the consideration as alleged by the respondent was correct. Aggrieved the respondent filed an appeal which was accepted by the first appellate Court vide its judgment and decree, dated 6-11-2004. The First Appellate Court while accepting the superior right of the present petitioners held that the petitioners had failed to prove that the Talbs had been performed in accordance with law or within the time specified there for. Aggrieved the petitioners filed a civil revision before this Court i.e. Civil Revision No.2924 of 2004 which was accepted by this Court vide its judgment, dated 14-4-2005 and the case was remanded to the first appellate Court for fresh decision. After hearing the parties the first appellate Court vide the impugned appellate judgment and decree has accepted the appeal of the respondents thereby dismissing the suit of the present petitioners.

3. The learned counsel for the parties have been heard and the record appended with this petition has been perused.

4. It is contended by the learned counsel for the petitioners that the first appellate Court failed to comply with the observations of this Court in its judgment, dated 14-4-2005 whereby the case was remanded. It is further contended that the impugned judgment and decree is illegal and inconsistent with the evidence on the record. Adds that the Talbs in question were performed in accordance with law within the period specified from the date of knowledge of the transaction.

5. The learned counsel for the respondent has controverter the contentions raised on behalf of the petitioners and has further submitted that the petitioner had knowledge of the transaction from the date there for, hence the Talbs had not been performed within the period specified by law. Adds that on the face of the record Talb-e-Ishhad was not performed within the due date.

6. In the earlier round of Litigation judgment, dated 6-11-2004 appeared to be based on discrepancies in the evidence of the P. Ws. and the documents with which the said P.Ws. had not been confronted, hence the case was remanded. The instant impugned judgment is not entirely based on the said evidence. The real matter in controversy between the parties is the date of knowledge of the petitioners of the transaction of sale pre-empted. It is the case of the petitioners that upon receiving the requisite information qua the sale copies of the mutation were obtained. Where after Talb-e-Ishhad was performed. While it is the case of the respondent that the petitioners had knowledge of the transaction from the date there for as the suit-land and the land owned by the petitioners are irrigated by the same watercourse, hence the petitioners would have knowledge of presence and occupation by the respondent of the suit-land at the date of transaction. Be that as it may, in the instant case the date of knowledge as alleged by the petitioners would have been substantiated by the production of the certified copies of the mutation of the sale pre-empted b the instant suit as it is the case of the petitioners that the said certified copies were obtained after obtaining knowledge of the sale prior to the issuance of Talb-e-Ishhad. It has been noted that the said document has not been produced in evidence by the petitioners. The learned first appellate Court by way of the impugned judgment and decree has relied on this fact and rightly so to hold that the petitioners have failed to establish the date of knowledge in support of their contentions. It is settled law that where a piece of evidence in the control and power of a party is not produced it is presumed that such evidence would have gone against the said party. In the instant case the failure of the petitioners to produce the certified copies of the mutations alleged to have been procured after the date of knowledge prior to the issuance of Talb-e-Ishhad raises the presumption that such certified copies would have contradicted the stand and contentions of the petitioners. It has been noticed that no explanation for the non-production of the said certified copies has been offered even in the present revision petition.

7. In this view of the matter, no exception can be taken to the impugned appellate judgment and decree which is in accordance with law and does not suffer from any material irregularity in the exercise of jurisdiction. No misreading and non-reading of evidence or other illegality has been pointed out so as to warrant interference by this Court in its revision jurisdiction. Consequently, this revision petition is without any merit and is hereby) dismissed. F.B./L-13/L Petition dismissed.