2010 PLP 963 (CLC)

CH. MUHAMMAD TARIQ, J.

The petitioner/plaintiff and predecessor-in-interest of respondents No.5 to 10 filed two separate suits for the recovery of possession through pre-emption regarding land measuring 44-Kanals, 10-Marlas fully described in the plaint. The said land was purchased by one Ghulam Hussain deceased predecessor-in- interest of respondents Nos. 1 to 4 for a consideration of Rs.80,000 but in order to defeat the right of pre-emptors, they gave it a shape of exchange. According to the contents of the plaint, the plaintiff came to know about the transaction of sale through one Muhammad Ashraf on 12-8-1996 at 5:00 P.M. when he was sitting in his house in presence of Nazir Ahmad and Nisaar Ahmad witnesses. When the plaintiff came to know about the said sale, he there and then announced that he has got a preferential right of pre-emption against the vendee so he will exercise his superior right of pre-emption and thus he performed Talb-i-Muwathibat and thereafter notice of Talb-i-Ishhad was sent to the respondents/defendants through registered post letters.

2. The suit was resisted and a number of preliminary objections were raised on the point of law as well as facts. Out of the pleadings of the parties, following issues were framed:- ISSUES

1. Whether the plaintiff has superior right of pre-emption qua the defendant No.1? OPP

2. Whether the plaintiff has performed Talb as required by law? OPP

3. Whether the defendant No.2 (rival pre-emptor) has a superior right of pre-emption qua the defendant No.1? OPD-1

4. Whether the defendant No.2 (rival pre-emptor) had made Talbs as required by law? OPD-2

5. Who has superior right of pre-emption inter se plaintiff and defendant No.2? OPP & OPD-2

6. Whether the suit-land was sold in consideration of Rs.80,000 and in order to defeat the plaintiff's right of pre-emption the transaction has been shown as an exchange? OPP

7. Whether the pre-emptors are estopped by their words and conduct to file their respective suit as they were in the knowledge of exchange? OPD-1

8. Whether the pre-emptors have got no cause of action to file their respective suit? OPD-1

9. Relief.

3. The parties adduced their oral as well as documentary evidence and vide judgment and decree dated 27-2-2007 of Mr. Liaqat Ali Ranjha learned Civil Judge, Sialkot decreed the suit of the plaintiff/petitioner. The impugned judgment and decree passed by the learned trial court was assailed in appeal and vide judgment and decree dated 28-3-2009 of Mr. Tanvir Ahmad Sheikh learned Additional Judge, Sialkot allowed the appeal and reversed the judgment and decree passed by the learned trial court, hence this civil revision.

4. The learned counsel for the petitioner contends that the impugned judgment and decree is result of misreading and non-reading of evidence and it is against the law and facts of the case. He further contends that finding of learned Additional District Judge on issue No.7 pertaining to estoppel is erroneous. The learned counsel further contends that the petitioner has a superior right of pre-emption against the respondents/vendees who has fulfilled all the Talbs as required by the law, therefore, this civil revision be allowed and the impugned judgment and decree be set aside and the judgment and decree passed by the learned trial court be restored.

5. Arguments heard. Record perused. The finding of learned Additional District Judge, Sialkot, that the suit of petitioner is hit by the principle of estoppel is maintained which is based on cogent reasons. However, both the learned lower courts have failed to examine the question of Talb-i-Muwathibat which was not performed as prescribed under the law. The evidence on the file reveals that P.W. 1 Lal Din in his examination-in-chief states that on 12-8-1996 he was sitting in his house along with P.W. and at evening time he came to know about the sale of suit house when he there and then announced that he has a superior right of pre-emption against the vendee and he will exercise his superior right of pre-emption. On 21-8-1996 he went along with the P.Ws. to District Court where he informed his lawyer who sent notice of Talb-i-Ishhad through registered post letter which notice was duly signed by him. P.W. 2.Muhammad Ashraf contradicts the statement of Lal Din and states that on 12-8-1996 I came to know about the sale of suit house and on the same day at about 4/5 in the evening he informed Lal Din about the sale of the suit house in the presence of Nazir Ahmad and Nisaar Ahmad. During cross-examination P.W. 2 admits that before the sale of suit land everybody was informed that any person who is interested in the purchase of land he may purchase it. Meaning thereby a proper notice as required under the law was served upon the residents of the area including the plaintiff. During cross-examination, replying to a question the said Muhammad Ashraf categorically stated that Shaam/evening means after 7-30 P.M. On the other hand P.W.3 Nisaar Ahmad states in his examination-in-chief that the plaintiff Lal Din was informed about the sale of suit-land at 5:00 O'Clock afternoon. None of the witnesses is constant on the point and there are discrepancies amongst the statements of all the P.Ws. Furthermore, the plaintiff/ petitioner is also estopped by his word and conduct to file the suit because the vendor had already announced about the sale of suit-land which was in the knowledge of residents of the area. 8(sic). In the light of above discussion, when there is no jurisdictional error in the impugned judgment, interference by this Court is not warranted. This civil revision is without any merit and the same is dismissed. M.H./L-9/L Revision dismissed.