2015 PLP 49 (CLC)

WAQAR AHMAD SETH, J.

This revision petition under section 115, C.P.C. is directed against the judgment and decree dated 24-2-2010, whereby Additional District Judge, Balakot, on acceptance of appeal of respondent set-aside the judgment and decree of trial Court and decreed the suit of respondent.

2. Respondent filed a suit for possession through pre-emption regarding property fully described in the heading of the plaint against the petitioners. Petitioners appeared and contested the suit by filing written statement. Learned trial Court after recording pro and contra evidence and hearing the parties dismissed the suit and respondent preferred appeal. The learned appellate Court after hearing the parties vide impugned judgment decreed the suit of respondent by setting aside the judgment and decree of the trial Court.

3. Learned counsel for petitioners submitted written arguments whereas the learned counsel for respondents have been heard and record perused.

4. A perusal of revenue record would reveal that plaintiff/ respondent is recorded co-owner in the suit property and defendants/ petitioners have no such qualification, as such, the plaintiff/respondent has got a superior right of pre-emption. As per contents of plaint the respondent on 4-4-2004 at 3.00 p.m. gained knowledge about the disputed sale transaction at his house from his brother Ghulam Rahim and he there and then allegedly performed the Talb-e-Muwathibat. The plaintiff/respondent also sent notice Talb-e-Ishhad to the petitioners. The plaintiff and his real brother are not found consistent about the mode and manner of performance of talbs rather they are found contradicting each other on material aspects of the case. PW Ghulam Rahim stated that Shams ur Rehman had come with them from Balakot Bazar whereas plaintiff stated that the said witness met him at Balakot. The informer PW-5 is the real brother of the plaintiff/respondent and who himself is also a co-owner along with his brother but is not making the Talb-e-Muwathibat rather taking his brother plaintiff/respondent regarding the alleged transaction after 3/4 days of knowledge. No time of Talb-e-Muwathibat has been given in his statement. No exact time of Talb-e-Muwathibat has been mentioned in the notice Talb-e-Ishhad whereas PW-6 pre-emptor stated in cross-examination as 2.00 p.m.

5. PW-5 the informer/brother of pre-emptor in his cross-examination stated that at the time of visit to the house of respondent/ plaintiff his two sons, daughter and wife were present whereas no such thing is mentioned in Exh.PW3/2 nor in the statement of PW-6. There are many major contradictions in the statements of PW which are fatal to the suit of pre-emption. These contradictions create doubt in the veracity of the respondent / plaintiff witnesses regarding Talbs.

6. In the case of Ghulam Muhammad v. Abdullah reported as 2014 MLD 141, it has been held as under:

"S.13

Talbs, performance of

Requirements and mode

Informer had vital role in pre-emption case who was bound to depose about date, time and place of performance of Talb-i-Muwathibat

Omission to mention time by the informer in his statement would be fatal to the case."

7. In the case of Said ul Haq v. Janas Khan reported as 2013 MLD 350, it has been held as under:

"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-i-Ishhad

Effect

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

Suit was dismissed in circumstances."

8. In the case of Amir Muhammad v. Muhammad Ashraf reported as PLD 2011 Peshawar 116 it was held as under:

"S.13

Pre-emption suit

Talb-i-Muwathibat, performance of

Plaint finding mention date, time, place of such Talb along with name of informer

Non-mentioning date of such Talb by plaintiff and his three witnesses during evidence

Omission of informer to disclose date, time and place of such Talb in examination in chief but disclosing during cross-examination only time as `sham vela'

Validity

Informer Should have stated specifically time in hours, but not 'sham vela' for being a wider term

Such Talb had become defective by not disclosing its date in evidence either by plaintiff or his three witnesses

Mentioning of date, time and place of such Talb in plaint was necessary, failing which right of pre-emption could not be enforced

Such Talb was not performed legally

Suit was dismissed in circumstances."

9. Again in the case of Manzoor Hussain v. Iftikhar Ahmed and another reported as PLD 2007 Peshawar 93, it was held as under:

"Plaintiff had asserted that he had made Talb-e-Muwathibat in the presence of witnesses but he had made Talb-e-Muwathibat in the presence of witnesses, but witnesses examined by him did not fully support his case

Such contradictions were major which clearly proved that witnesses of Talb-i-Muwathibat were not truthful and they were avoiding to make correct / true statement about persons who were present at the time of making of Talb-i-Muwathibat."

10. In addition to the above, regarding talbs the pre-emptor/plaintiff has disputed the transaction as 'sale' whereas petitioner/defendant had claimed it as exchange. PW.2 is patwari halqa, who admitted correct that suit mutation Exh.PW2/5 is entered as exchange mutation and attested accordingly. The exchange mutation is Exh.PW/6/1. Admittedly all the PWs unanimously stated that there is no sale consideration involved, seen or heard by them. There is not an iota of evidence in support of claim of respondent/plaintiff regarding the sale transaction in order to defeat his right of pre-emption rather the record reveals that it was exchange for better management. The evidence of DWs is very consistent in this regard. In the case of Elahi Bakhsh v. Muhammad Iqbal and others reported as 2014 SCMR 1217 it was held as under:

"Right of pre-emption

Whether property sold or exchanged

Burden of proof

Oral statement of a party to an instrument varying or tending to vary its terms

Admissibility in evidence of such oral statement

Alleged exchange of land between 'S' and 'M' and defendants through registered exchange deed

Plaintiffs filed a suit for enforcement of their right of pre-emption, alleging therein that exchange of land in question was actually a sale and as such was pre-emptible

Suit of plaintiff was decreed

Legality

Burden of proof was on plaintiffs to prove that transaction in question was a sale and not exchange

Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence

Appeal was allowed accordingly and suit of plaintiffs was dismissed. (c) Presumption of truth

Scope

Bare words could not dislodge the presumption of truth attached to a registered deed."

11. In the case of Muhammad Azam and 11 others v. Muhammad Nawaz and 8 others reported as 2005 CLC 1593, it was held as under:

"Claim of sale transaction must be proved by pre-emptors

No such reliable, convincing or cogent evidence had been proved by pre-emptors

Comparative approach of two courts below considered in the light of evidence on record objectively led to the conclusion that findings recorded by trial court on the issue of nature of transaction were consistent with evidence on record whereas approach adopted by appellate court was not backed by evidence and was sustainable in law

Judgment and decree passed by appellate court was set-aside and that of the trial court was restored. (b) Ss.4 & 21

Transaction whether sale or exchange

Determination

Disparity in quantity of land

Effect

Such disparity itself does not lead to inference or conclusion to strike down the transaction as owned by parties and recited in public record."

12. Reliance is also placed on the cases titled Muhammad Anwar Khan Kundi v. Abdur Rehman (2006 CLC 604) and Ahmad Ali Khan and others v. Bibi Ro and others (2011 YLR 2494).

13. Thus, the comparative approach of the two courts below considered in the light of the evidence on record objectively leads one to the conclusion that findings recorded by the trial court were consistent with the evidence on the record whereas the approach adopted by the learned appellate court was not backed by the evidence and is unsustainable in law.

14. In the wake of what has been discussed above, it is held that the learned trial Court on proper appraisal of legal and factual aspects of the case has rightly dismissed the suit of respondent whereas the learned appellate court on the basis of conjectures and surmises set-aside the well reasoned judgment and decree of trial court and wrongly and illegally decreed the suit of respondent. The judgment and decree of appellate court are liable to be set aside and judgment and decree of trial court are restored.

15. Consequently, this revision petition is allowed, the judgment and decree of appellate Court are set aside and that of trial court stand restored. No order as to costs. AG/442/P Revision allowed.