2012 PLP 1515 (YLR)

NISAR HUSSAIN KHAN, J.

Through this revision petition, petitioner has called in question the judgment and decree of learned Additional District Judge, Kohat, Camp Court Karak, dated 8-2-3003, whereby accepting appeal of the respondent No.1, his pre-emption suit was decreed in his favour.

2. The facts giving rise to filing of instant petition are that, Mir Janat Shah respondent, filed a pre-emption suit in respect of sale Mutation No. 4440, dated 12-7-1999, which was contested by the petitioner-defendant by filing written statement, wherein, she controverted all the contentions of the plaintiff/pre-emptor with regard to performance of Talb-e-Muwathibat as well as Talb-e-Ishhad. On framing issues, both the parties were invited to adduce evidence in support of their respective stance, which they did. On conclusion of trial, suit of the plaintiff-respondent was dismissed by the learned Trial Court, against which, appeal was filed, which was accepted by learned Appellate Court and pre-emption suit of the plaintiff-respondent, was decreed. Hence, this revision petition.

3. It is also pointed out that rival pre-emptors Muhammad Rahim, Muhammad Saleem and Muhammad Jamil sons of Aslam Shah, had also filed a pre-emption suit, which was consolidated with the instant suit. However, after dismissal of their suit, they did not file any appeal thereagainst.

4. Learned counsel for the petitioner argued that suit was filed by an incompetent person, because it was filed by Arsala Khan Attorney, who was not authorized at that time, so the suit was liable to be dismissed, on this score alone. He further argued that according to evidence of the defendant, pre-emptor was in the knowledge of suit sale, much prior to the performance of alleged Talb-e-Muwathibat, because when the suit-land was being levelled by the vendee-defendant for construction of the house, the pre-emptor, greeted him, for purchase of the suit property. He maintained that when plaintiff appeared in the witness box as P.W.3, he did not utter a single word about the date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, in accordance with law, and no AD Card was produced in the evidence, which would militate against him. Learned counsel maintained that petitioner-defendant, has specifically denied the receipt of service of notice Talb-e-Ishhad, in her written statement as well as by her attorney in Court statement. While the plaintiff-respondent, did not produce the Postman, to prove the service of notice, hence he has failed to prove Talb-e-Ishhad, in accordance with law. Thus, the pre-emption suit of the respondent-plaintiff is liable to be dismissed.

5. Conversely, learned counsel for the plaintiff-respondent contended that there is no misreading or non-reading of evidence in the impugned judgment; that plaintiff-respondent has mentioned full details of date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, in his plaint and from the evidence it is proved that he has established performance of both the Talbs; that all the P.Ws. were cross-examined by the defendant, but no material contradiction has been found in their statements. He maintained that to prove the dispatch of notice Talb-e-Ishhad, P.W.2 has been examined, which is sufficient compliance of provision of S.13 of N.-W.F.P. Pre-emption Act. Whereas, there is no penal provision in the ibid Act, for non-production of the AD Card. He maintained that Atta-ur-Rehman (P.W.4) and Arsala Khan (P.W.5.), have clearly mentioned the date, time and place of performance of Talb-e-Muwathibat, in their statements. He lastly submitted that judgment of learned Appellate Court is well-reasoned and well-founded, hence, cannot be interfered with, in revisional jurisdiction of this Court.

6. Arguments of the learned counsel for the parties heard and available record perused with their valuable assistance.

7. The perusal of the record transpires that plaintiff has mentioned all the details with regard to date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, which have been specifically contradicted by the defendant in her written statement. To prove his case, plaintiff produced Patwari Halqa with regard to his superior right of pre-emption. According to his statement, plaintiff-respondent is recorded as "Hissadar owner" in the suit property. Whereas, petitioner-defendant, is not owner in the suit property, prior to attestation of mutation. Thus, plaintiff-respondent has got superior right of pre-emption against the petitioner.

8. In order to prove Talb-e-Muwathibat as well as Talb-e-Ishhad, pre-emptor/respondent, produced Shehzad Gul Clerk of Post-Office as (P.W.2), who produced Booking Receipt of the registered letter No.11012 of Government Post Office, Karak as Exh.P.W.2/1. However, in cross-examination, he showed his ignorance about service of the said registered letter, on the addressee. Mir Janat Shah plaintiff himself appeared as P.W.3. He did not mention in his Court statement, the exact date and time of performance of Talb-e-Muwathibat as well as the date of Talb-e-Ishhad, as mentioned in his plaint. Although, P.Ws. informer Arsala Khan and Atta-ur-Rehman, present in the Majlis, have given full details of date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-lshhad, in their statements, but it was incumbent upon the plaintiff himself to depose about the full details of both the Talabs, as mentioned in his plaint. Firstly, because the contents of the plaint, are never considered as evidence, unless, the same are proved by the party, in the Court and secondly, the statements of P.W.4 and P.W.5, can only be considered as corroborative evidence. When, the original evidence on a point of fact, is missing, then mere corroborative evidence, would lose its value nor the corroborative evidence, can prove the fact in issue, when the original evidence, is not available. It is settled law that mere mentioning of details of performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, is not sufficient compliance, unless, it is proved through cogent, reliable and confidence inspiring evidence. In this backdrop of the facts, plaintiff has failed to prove performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, in accordance with law.

9. Moreover, the defendant has not only denied the receipt of notice Talb-e-Ishhad, in her written statement, but she has also categorically denied the same fact, in her Court statement, recorded through her attorney Gul Muhammad DW.4. This part of the statement of DW-4, has not been challenged in his cross-examination. In view of the ratio of the case titled "Chief Engineer, Irrigation Department N.-W.F.P. Peshawar and 2 others v. Mazar Hussain and 2 others" PLD 2004 SC 682 and case titled, "Mst. Nur Jehan Begum through legal Representatives v. Syed Mujtaba Ali Naqvi" (1991 SCMR 2300), it amounts to admission on the part of the plaintiff. In view of unequivocal denial of the vendee defendant, it was imperative for the plaintiff to examine the Postman to prove service of notice Talb-e-Ishhad, on her, but he did not produce him. By following ratio of case titled, "Muhammad Bashir and others v. Abbas Ali Shah" and case titled, "Bashir Ahmed v. Ghulam Rasool" (2011 SCMR 762), I am constrained to hold that petitioner has failed to prove performance of Talb-e-Ishhad, as required by the law. The expression "Sending a notice in writing...."under registered cover acknowledgement due" has been exhaustively dealt with in Muhammad Bashir's case (supra), by scanning the law on the subject of issuance of notice, since pre-partition, till date, including from the Indian Jurisdiction. The concluding Para No.21 of the judgment is reproduced as follows:-- "An analysis of the case-law discussed in the preceding paragraphs would show that when a presumption is raised in terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act on a question of fact, it would stand rebutted if the addressee makes a statement on oath denying service and the onus to prove service would continue to be on the party relying on such a notice unless of course there is other evidence to indicate that the denial of the service by the addressee is against the record".

10. The same principle was, later on, followed in Bashir Ahmed's case. Thus in light of the evidence, discussed above and by following the ratio of the judgments, referred herein before, it is held, that petitioner has failed to prove performance of Talb-e-Ishhad, as well.

11. So far as the objection of learned counsel for the petitioner with regard to filing of plaint by an unauthorized person is concerned, that is misconceived one. The filing of plaint has not been denied by the plaintiff himself. Rather it has come on the record that attorney was verbally authorized to file the suit and later on, that authority was re-affirmed by executing a power of attorney in his favour, on the basis of which amended plaint was later on, filed by the same attorney, when his power of attorney was already in the field. Thus, if there was any irregularity, that was rectified by principal, later on. Hence, this objection of the petitioner is not tenable.

12. For the reasons discussed above, this revision petition is allowed, the impugned judgment of the learned appellate court is set aside and that of the learned Trial Court is restored. Consequently, the suit of plaintiff-respondent, is dismissed. Parties to bear their own costs. M.H./142/P Revision allowed.