2006 PLP 1878 (CLC)

MIAN SAQIB NISAR, J.

The respondents/pre-emptors have lost their pre-emption cause at the trial stage, but have succeeded before the learned Appellate Court; the learned Court of Appeal has held, that the respondents have proved their superior right of pre-emption and also the Talbs, which two crucial issues involved in the matter require resolution. Hence this revision by the vendees/ defendants.

2. Briefly the facts of the case are, that the land measuring 76 Kanals, 18 Marlas, was sold vide Mutation No.149, dated 18-9-1995; Mst. Atari Begum, the predecessor-in-interest of the respondents, brought a suit for pre-emption on 28-9-1995, claiming that she learnt about the sale on 24-9-1995 at her house, through Saad-ul-Malook, her son, and made Talb-i-Muwathibat in the presence of her other two sons, namely Muhammad Ali and Muhammad Saleh, followed by Talb-i-Ishhad, through notice, dated 27-9-1995; the superior right is claimed on the basis of the suit-land being adjacent to her land and the common passage. The matter was contested by the petitioners, issues were framed, parties were put to trial, and the learned Civil Judge decided the issues of the superior right and the Talbs in favour of Mst. Atari Begum, but dismissed the suit, vide judgment and decree, dated 31-7-2001, holding that on account of the death of Mst. Atari Begum, the right to sue does not survive, and therefore, her legal heirs could not continue with the suit. The respondents preferred an appeal, which has been allowed; the learned Judge by reversing the view of the learned trial Court about the survival of the right to sue, but by affirming the findings of the Court below, on the issues of superior right and that of Talbs, has decreed the suit.

3. Learned counsel for the petitioners contends, that there is no independent evidence on the record, that Talb-i-Muwathibat was made by Mst. Atari Begum, because the two witnesses examined by her, in this behalf, are her real sons; Muhammad Ali, the third son, in the presence of whom the Talb-i-Muwathibat is also stated to have been made by the pre-emptor and is named in the plaint, has not been examined for any good reason, therefore, the learned counsel submits, that it is a case of no independent evidence and also of the withholding of the evidence of Muhammad All. It is further stated, that the notice of Talb-i-Ishhad has not been proved in accordance with law, because it was to be proved by examining two marginal witnesses, but only Muhammad Saleh has been examined, whereas the other alleged marginal witness Muhammad Ali has not been examined in the case. On the basis of the above, it is thus, submitted that both the Talbs have not been proved by the respondent/ plaintiff in accordance with law. As regards the superior right is concerned, it is argued, that no evidence has been produced by the respondent that the land of the plaintiff was adjacent to the suit-land, though Aks Shajra of the two lands has been brought on the record as Exh.P.5, but the factum of the lands being adjacent is not established therefrom. It is further submitted, that the common passage is not a private passage, rather is a public passage, and cannot be considered to be a common passage for the purposes of conferring a right of pre-emption to the respondents.

4. I have heard the learned counsel for the parties. The pre-emptor in this case is a housewife, and obviously, if the sale has been disclosed to her by a son at her house, it is quite natural and probable, that the Talb-i-Muwathibat would be made in the presence of the other family members, because she on learning of the sale is not supposed to summon independent person to witness the Talb or to go out of her house and declare the same in front of others, resultantly, her two sons, Saad-ul-Malook and Muhammad Saleh, who were present at the relevant time and appeared as witnesses, have made statements consistent to the version of the plaintiff, which have not been shattered in the cross-examination and have been believed by the two Courts below.

5. As regards the non-production of Muhammad Ali for the proof of Talb-i-Muwathibat or Talb-i-Ishhad is concerned, according to Saad-ul-Malook, where he appeared as P.W. 1, he stated in the cross-examination, that Muhammad Ali has gone to Japan, there is neither any further cross-examination on the statement nor is any rebuttal in this behalf; the two Courts below, as earlier stated, have believed the evidence of the plaintiffs, that the Talbs have been proved in accordance with law, and I do not find any misreading or non-reading of such evidence to interfere in the revisional jurisdiction.

6. For the question about the proof of superior right of pre-emption is concerned, Aks Shajra Exh.P.5, proves that the pre-empted property, as also that of the pre-emptor/plaintiff is adjacent, moreover according to the statement made by Muhammad Akram, one of the vendees, while appearing as D.W.l, he has admitted that there is no common passage for the two properties and that the lands are adjacent. Obviously, in the light of such admission, the finding of the two Courts below, that the plaintiff has proved the superior right of pre-emption cannot be held to be erroneous.

7. In the light of above, as there is no illegality or infirmity either factual or legal shown in the impugned judgment, therefore, I do not find this to be a fit case for interference in the revisional jurisdiction. Dismissed. F.B./M-433/L????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.