2014 PLP 1168 (MLD)

C.M. NO. 486-C OF 2006 AMIN-UD-DIN KHAN, J.

Through the instant application, the revision petitioners have prayed that Aks Shajra, which has been annexed with this application, may kindly be allowed to be placed on the file of the titled revision petition in the interest of justice. This application has been filed under section 151 of the C.P.C. No one entered appearance on behalf of the respondents. There is reply of the instant petition filed by the respondents on the record wherein they have vehemently opposed the application while relying upon Town Committee, Juharabad through Tehsil Nazim, District Khushab v. Falak Sher (2003 CLC 71) and The State through Advocate General, Sindh v. Dawood (2006 SCMR 1302). Learned counsel for the applicants argues that for better appreciation of evidence and in the interest of justice permission to place on record Aks Shajra is necessary.

2. I have noticed that through the application in hand the prayer is that Aks Shajra be permitted to be placed on the file of the revision petition. As Aks Shajra, copy of which has been prepared by the Patwari from the original record, is not per se admissible in evidence, therefore, placing the same on record will not serve any useful purpose and further even if it is placed on the file same cannot be read in evidence of the petitioners. In this view of the matter, this C.M. is not maintainable and the same is hereby dismissed. MAIN CASE. Through this revision petition, the petitioners have challenged the judgment and decree dated 27-5-2004, passed by the learned Additional District Judge, Shakargarh, whereby appeal filed by the respondents was accepted and the judgment and decree dated 26-9-2003, passed by the learned Civil Judge, Shakargarh, decreeing the suit for pre-emption filed by the petitioners was set aside.

2. Brief facts of the case are that the petitioners/plaintiffs on 4-3-1999, filed a suit to pre-empt the sale of land, measuring 19 kanals 12 marlas, in favour of the defendants/respondents through mutation No.209, attested on 18-11-1998. Written statement was filed, suit was contested, parties were invited to produce their oral as well as documentary evidence, both the parties produced oral as well as documentary evidence. After closure of the trial, the learned trial Court vide judgment and decree dated 26-9-2003, decreed the suit in favour of the plaintiffs/petitioners.Dissatisfied by the aforesaid judgment and decree the defendants/ vendees preferred an appeal and vide judgment and decree dated 27-5-2004, learned Ist Appellate Court accepted the appeal and while reversing the findings of the learned trial Court dismissed the suit on the ground that both the plaintiffs failed to prove their right of pre-emption as the same was claimed on the basis of contiguity, i.e. Shafi Jar.

3. Learned counsel for the petitioners argues that the learned 1st appellate Court came to the conclusion that one of the pre-emptors, i.e. Saif Ullah, has right of pre-emption with regard to the some land, whereas Nazir Ahmad is not the owner of adjacent land, therefore, holding that on the basis of law of sinker the suit was liable to be dismissed and has dismissed the suit. Learned counsel has relied upon Raees Khan and others v. Mst. Naseeb Khatoon (2006 SCMR 1836) to argue that if any part of the khata owned by the plaintiffs is adjacent with any khasra of the suit property the suit can be decreed. 4. 1 have heard the learned counsel for the petitioners and have also gone through the record. I have noticed that for proving right of pre-emption plaintiffs have produced copy of jamabandi for the year 1994-95 of khata No. 32 as Exh. P-10 wherein both the plaintiffs are recorded as owners in this khata as well as jamabandi for the year 1994-95 of khata No.31, in this khata only Saif Ullah is recorded as owner. They have also produced copy of Aks Shajra as Exh. P-12 for proving contiguity. The plaintiffs were bound to prove Exh. P-12 by producing Patwari. Exh. P-12 which is copy prepared by the Patwari from the original record of Aks Parcha has been produced in the statement of the learned counsel on record. Aks Shajra is not per se admissible in evidence, for proving the same the plaintiffs were bound to produce Patwari Halqa to prove the correctness of this document that it is in accordance with the original record available with the Patwari and further Patwari was able to make statement which khasra owned by the plaintiffs is contiguous to the suit property. Even one of the plaintiffs when appeared as P.W.4 generally stated that their property is contiguous to the suit property without any specification and mentioning the khasra numbers of the suit property as well as the property owned by the plaintiffs. As the suit property is agricultural, therefore, without undergoing the above mentioned process plaintiffs cannot be declared owners of the adjacent land. In the circumstances, the findings recorded by the learned Ist appellate Court and furthermore the findings recorded by this Court supra clearly lead to a conclusion that the plaintiffs failed to establish their right of pre-emption on the basis of contiguous property owned by the plaintiffs with the suit property.

5. Though there are no cross objections or cross revision petition filed by the vendees/defendants but as under the revisional powers this Court is scrutinizing the record as well as judgments passed by the Courts below. I have noticed that the plaintiffs have produced P.W.3 to establish that Muhammad Sain one of the defendants refused to receive the registered post acknowledgement due allegedly containing notice of Talb-i-Ishhad. P.W.3 clearly stated that he has never served Rehmat Ali vendee/defendant as he was not resident of his area. With regard to Rehmat Ali plaintiffs failed to prove service of notice or refusal by him as the original envelop sending notice of Talb-i-Ishhad or acknowledgment due have not been produced on record. For proving Talb-i-Ishhad upon each of the defendants was the pre-requisite for filing a suit for pre-emption against the vendees. If the plaintiffs failed to prove Talb-i-Ishhad against any one of the defendants/vendees suit was not competent and in the light of the law declared by the august Supreme Court of Pakistan reported as Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762) for proving service of notice of Talb-i-Ishhad through registered post acknowledgement due producing the postman for proving service or refusal thereof is necessary. In these circumstances, plaintiffs failed to prove Talb-i-Ishhad against Rehmat Ali, therefore, findings recorded by both the Courts below on the issue of proving Talb-i-Ishhad are not sustainable under the law, therefore, same are reversed. The case-law relied upon by the learned counsel for the petitioners is not applicable to the facts of the case as the plaintiffs failed to prove that their property is adjacent to the suit property, therefore, they cannot take help from the aforesaid case-law. In view of what has been discussed above, this revision petition having no force is hereby dismissed. AG/N-58/L Revision dismissed.