2006 PLP 1014 (YLR)

SYED ZAHID HUSSAIN, J.

A suit for pre-emption qua the land in dispute instituted by the respondent was dismissed by the trial Court vide judgment dated 2-5-2001 whereagainst the appeal preferred by him was accepted by the learned Additional District Judge, Mandi Bahauddin on 21-11-2001 and the suit was decreed accordingly. This is revision petition qua the same by the vendees/defendants.

2. The learned counsel for the petitioners has endeavoured to show inconsistencies in the plaint and the depositions of the witnesses produced by the respondent/plaintiff and to establish that the appellate judgment suffered from misreading and non-reading of the evidence and was contrary to law on the subject. He has made reference to Muhammad Ramzan v. Lal Khan (1995 SCMR 1510), Rana Muhammad Tufail v. Munir Ahmed and another (PLD 2001 SC 13), Nemat Ali alias Niamat Ali v. Abdul Ghaffar (2000 CLC 1067) and Manzoor Hussain Shah v. Fazal Dad and another (2000 SCMR 216). On the other hand, the learned counsel for the respondent/plaintiff has contended that the appellate judgment is based on correct appreciation of evidence and findings recorded by it are entitled to preference over that of the trial Court. It is further contended that minor inconsistencies (even if there be in the depositions of witnesses) have no material bearing upon the real substance of the matter and the appellate Court was justified to hold that the Talbs had been performed by the respondent/plaintiff in accordance with law. It is contended that even non-mention of date, place and timing of making of Talb-e-Mawathibat in the plaint cannot be made ground for non-suiting the plaintiff/pre-emptor. Reference has been made by him to Azmatullah through L.Rs. v. Mst. Hameed Bibi and others (2005 SCMR 1201), Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another (2001 SCMR 798) and Allah Bakhsh and another v. Falak Sher (2004 SCMR 1580).

3. Since the approach of the two Courts below qua an important issue (Issue No.2) as to performance of Talbs was at variance, the evidence led by the parties: has been considered with the assistance of the learned counsel.

4. The suit was instituted by the respondent on the basis of his superior right qua the transaction of sale incorporated in Mutation No.507 sanctioned on 24-7-1994. According to the plaintiff he had acquired knowledge of the said sale on 25-7-1994 when he made Talb-e-Muwathiwat by making clear declaration of his intention and afterwards issued notice dated 1-8-1994 of Talb-e-Ishhad. The suit was instituted on 13-9-1994. Although number of issues were framed by the trial Court yet now only Issue No.2 as to performance of Talbs is of relevance inasmuch while deciding Issue No.1. the superior right of the respondent/plaintiff has been upheld concurrently by both the Courts. The suit of the respondent was dismissed by the trial Court for non-performance of Talbs and Issue No.2 was decided against him. It may be observed that though the factum of sale was entered in the mutation register on 26-4-1994 yet the mutation was sanctioned on 24-7-1994 as has been noted even by the trial Court, therefore, there should remain no obscurity about the date of sanction of mutation. According to the learned counsel for the respondent, the latest view of the Honourable Supreme Court of Pakistan qua the prerequisites of performance of Talbs is the one reported in Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others (2005 SCMR 1201). In the said judgment it was observed that the view expressed by a Larger Bench of the Honourable Supreme Court of Pakistan has the binding force as against any other view. It. was held that "the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talbs and names of witnesses and others had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580 this Court has held that minor discrepancy of time would not come in the way of pre-emptor." Thus, testing the veracity of the depositions of the witnesses produced by the respondent/ plaintiff on such touchstone, it is to be seen as to how for the appellate Court was justified in reversing the findings of the trial Court on Issue No.2 and holding that the Talbs had been performed by the respondent/plaintiff. Mushtaq Ahmed, respondent/plaintiff himself appeared as P.W.1 whereas he produced Muhammad Ashraf P.W.2 and Lal Khan P.W.3. The substance of the statements of the plaintiff/respondent was that he came to know about the transaction of sale on 25th of July from Muhammad Ashraf P.W.2 when he declared his intention and made Talb-e-Muwathiwat in presence of Muhammad Ashraf and Lal Khan. Muhammad Ashraf and Lal Khan supported his version and are the witnesses of notice dated 1-8-1994 (Talb-e-Ishhad). Though in paragraph 5 of the plaint, the date of acquisition of knowledge was disclosed as also the names of the witnesses i.e. Muhammad Ashraf and Lal Khan yet timing of the same was not precisely mentioned therein. When the respondent and his witnesses appeared in the Court, they were consistent on the essential aspects of the matter as to the acquisition of knowledge about the sale and making of Talb-e-Muwathiwat there and then in the same `Majlas'. Their testimony has been considered and rightly believed by the appellate Court. On consideration of the evidence and their depositions, I find no justification for differing with the approach adopted by the learned appellate Court who has on appreciation and appraisal of the evidence come to the conclusion that the Talbs had been made and performed in accordance with law. No illegality has been committed by the appellate Court in recording such findings. As a result of the above, the petition is without merit which is dismissed accordingly, with no order as to costs. F.M./B-2/L Petition dismissed.