2012 PLP 2761 (YLR)

SYED SAJJAD HASSAN SHAH, J.

By this single judgment, I propose to decide Revision Petitions Nos.1133, 1134, 1135 and 1136 of 2004, wherein the petitioner has questioned the judgment and decree dated 28-6-2011 of the learned Additional District Judge-II, Mardan, whereby he dismissed the appeal filed by him and upheld the judgment and decree dated 18-6-2010 of the learned Civil Judge-I, Mardan.

2. Brief facts of the case assembled from the plaint are that the petitioner has instituted a suit for pre-emption against the respondent in the Court of the learned Civil Judge-I, Mardan, in respect of the property measuring 2 kanal 4 marla, fully detailed in the heading of the plaint, being purchased by the respondent, vide Mutation No.380 attested on 21-8-2007. The suit after contest was dismissed by the learned trial Court and the appeal thereagainst was also dismissed by the learned appellate Court, hence this revision petition.

3. Learned counsel appearing on behalf of the petitioner contended that all the talbs have been proved by the petitioner as per law and he is, thus, entitled for the decree as prayed for. Learned counsel next contended that the findings of the Courts below with regard to issues Nos.1 and 7 are incorrect, as the petitioner has proved his claim and is entitled for decree of possession through pre-emption. There is nothing on the record in black and white, so as to justify the dismissal of the suit of the petitioner. He while elaborating his arguments further contended that the learned appellate Court has not applied its mind independently and influenced from the findings of the lower Court without considering the evidence adduced by the petitioner. He next contended that, if at all, the lapse, if any, on the part of the petitioner, has any serious implication, the case could have been remanded to the lower forum for recording evidence. The learned counsel by concluding his arguments submitted that when the petitioner is having superior right of pre-emption, he could not be non-suited on any technical ground.

4. As against that, the learned counsel appearing on behalf of the respondent defended the impugned judgment by submitting that it being free from any infirmity muchless jurisdictional is not open to any exception.

5. As all the revision petitions involve a common question of law and fact, they are disposed of by this single judgment.

6. I have gone through the available record carefully and considered the submissions of the learned counsel for the petitioner.

7. A perusal of the evidence on the record reveals that the petitioner and his witnesses have contradicted each other on material particulars. The former stated that he was sitting in his residential house at 10 p.m., when his son Tufail came there and informed him that the respondent has purchased the property. At the moment, he disclosed his intention that he will proceed to bring a pre-emption suit against the respondent but he omitted to give detail about the witnesses to notice 'talb-e-muwathibat' and simply mentioned the name of the informer. The petitioner was required to give the requisite detail and prove it through cogent and convincing evidence. The petitioner in his cross-examination stated that he obtained the copy of the impugned mutation on the day when he sent notice in the name of the respondent whereas informer Tufail, P.W.5, son of the plaintiff, stated that he along with the plaintiff/petitioner and his brother Rahat Ali, the attesting witness to the said notice, went to the premises of the Court on 28-8-2007 and scribed notice in the name of the respondent but strangely enough in his cross-examination he stated that he did not accompany the petitioner/plaintiff and so did not know when did he went there. Rahat Ali son of the plaintiff who was examined as P.W.6, negates the assertion made by his brother Tufail, P.W.5 and stated that he did not go with his father to Patwari and as such did not know when did the petitioner-plaintiff went to the Patwari. These contradictions being too glaring cannot be ignored, that too, when acceptance of one statement would call for repudiation of another. The requirements of demand through notice, therefore, cannot be said to have been established in accordance with the require-ments of section 13 of the N.-W.F.P. Pre-emption Act, 1987 and that this alone would be sufficient to non-suit the petitioner. P.W.5. Tufail stated that he along with the plaintiff and his brother Rahat Ali went to the Court premises while the other Rahat Ali, P.W.6 stated that he did not proceed with his father and as such both the attesting witnesses cannot be said to be truthful, therefore, the suit of the petitioner/plaintiff was rightly dismissed. Failure on the part of the petitioner to mention the names of the witnesses in the notice of 'talb-e-muwathibat' in whose presence it was made, would constitute yet another ground for non-suiting the petitioner. Though making of 'talb-e-muwathibat' has been mentioned in the plaint but in whose presence, he made `talb-e-muwathibat', went unattended. Even in the notice, it was not mentioned that in whose presence the petitioner made talb-e-muwathibat. Contradictions in the statements of the P.Ws., as highlighted by the learned counsel for the respondent, also prove that even 'talb-e-ishhad' was not proved on the record in accordance with the requirements of section 13 of the Pre-emption Act. Even otherwise, this Court will not substitute its own view for that of the Courts below which held the entire affair of making 'talbs' to be a product of an afterthought. When this being the state of evidence, I do not think, the learned Courts below committed any error muchless jurisdictional by non-suiting the petitioner. The cases of Altaf Hussain v. Abdul Hameed and another (2000 SCMR 1314) and Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 239) may well be referred in this behalf.

8. For the reasons discussed above, these revision petitions being without substance are dismissed in limine. M.H./249/P Revision dismissed.