2003 PLP 394 (MLD)

(1) Whether the plaintiff has no pause of action to bring this suit? OPD (2) Whether the plaintiff has waived of his right of pre‑emption? OPD (3) Whether the ostensible sale price of Rs.1,00,000 was bona fide fixed and paid? OPD (4) If the above issue is not proved then what was the market value of the suit‑land at the time of sale? OPP (5) Whether the plaintiff has fulfilled the requirements of Talbs strictly according to law? OPP (6) Whether the plaintiff has superior right qua the defendant to pre empt the sale against defendant? OPP (7) Relief.

5. The learned Civil Judge vide his judgment and decree, dated 6‑10‑2000, dismissed the suit of the respondent‑plaintiff. Under Issue No.6, the learned Civil Judge held that the plaintiff‑respondent has failed to prove that he is the co‑sharer in the property and therefore, Issue No.6 was decided against him. Under Issue No.5 it was observed that. "the statement of plaintiff and witnesses about time of knowledge of sale are inconsistent and further more the plaintiff failed to make Talb‑i‑Muwathibat immediately as soon as he came in knowledge regarding sale of land."

6. On the appeal of the respondent‑plaintiff, the learned Additional District Judge reversed the findings of the learned trial Court on Issues Nos.5 and

6. It was observed that the respondent‑plaintiff was able to prove that he was a co‑sharer in the disputed property. On the basis of jamabandi Exh.P.4, it was held that both the petitioner and respondent are co‑sharers in the disputed property and they have got and equal right of pre‑emption. It was also observed that the respondent‑plaintiff was able to perform the requisite Talbs. However, it was held that Rs.1,00,000 was paid by the vendee at the time of purchase of the land. The learned District Judge proceeded to accept the appeal of the respondent‑plaintiff and decreed the suit to the extent of one‑half of the disputed property and dismissed the suit of the plaintiff‑respondent to the extent of remaining half on the payment of Rs.50,000.

7. The learned counsel for the petitioner has argued that the finding of the learned First Appellate Court on Issues Nos.5 and 6 is the result of misreading of document Exh.P.4 (Jamabandi for the year 1993‑1994) and also the statement of Ata Muhammad and Muhammad Hussain.

8. On the other hand, the learned counsel for the respondent, who has entered appearance in pursuance of the pre‑admission notice, has argued that the plaintiff was co‑sharer in the disputed Khata and that he was able to perform the requisite Talbs, therefore, the suit has been rightly decreed by the learned First Appellate Court.

9. Muhammad Khan‑plaintiff while appearing in Court stated that about one year and one month ago he was sitting in his Baithak alongwith Muhammad Hussain when Ata Muhammad came there he claimed that he will pre‑empt the disputed sale and on the same day, he went to the house of Abdur Rehman after Namaz‑e‑Asar alongwith Ata Muhammad P.W., where Noor Muhammad Fazal‑ur‑Rehman met him. The statement of respondent‑plaintiff is corroborated by Muhammad Hussain and Ata Muhammad with regard to the fulfilment of first talb. Talb‑i‑Ishhad has been proved by sending the notice. Noor Muhammad postman P. W.1 has stated that he took the registered Exh. P.1 and delivered the same to Noor Muhammad and he also endorsed his signatures on Exh. P.2. The registered notice to the petitioner‑defendant was on his correct address. In view of the matter, the learned Civil Judge was wrong in recording the findings of Issue No.5 against the respondent‑plaintiff which has been correctly reversed by the learned First Appellate Court. It is an admitted position on the record that the land measuring 4 Kanals and 6 Marals which was 7/48th, share of 29 Kanals and 12 Marlas in Khata No.2342 and 15 Marlas of land which g was 7/48th, share of 5 Kanals and 2 Marlas in Khata No.2343 total (measuring 5 Kanals and 1 Marla) was transferred in two Khatas Nos.2342 and 2343. Vide Mutation No.15085 dated 14‑4‑1998 by Ghulam Dilas in favour of Abdur Rehman son of Ibrahim petitioner‑defendant. This land was pre7empted by Muhammad Khan respondent -plaintiff. Exh. P.4. Jamabandi would show that both Muhammad Khan respondent and Abdur Rehman petitioner are the co‑sharers in Khata Nos.2342 alongwith Ghulam Dilas vendor, whereas the plaintiff-respondent Muhammad Khan is not the co‑sharer in Khata No.2343 and only Abdur Rehman is the co‑sharer with Ghulam Dilas. In this view of the matter, Muhammad Khan respondent‑plaintiff was entitled for 2 Kanals 2 and 3 Marlas in Khata No.2342 and has no right of possession through pre‑emption in land measuring 15 Marlas in Khasra No.2343. The learned Additional District Judge misread the document Exh.P.4 Register of Haqdaran‑e‑Zamin for the year 1993‑1994, therefore, this revision petition is partly allowed. The judgment and decree of the learned District Judge dated 16‑10‑2001 is modified to the extent that one‑half of the land measuring 2 Kanals and 3 Marlas in Khata No.2342 shall go to the respondent‑plaintiff Muhammad Khan and decreed the suit to that extent and dismissed the suit of the respondent‑plaintiff to the extent of one‑half measuring 2 Kanals and 3 Marlas in Khata No.2342 and land measuring 15 Marlas in Khata No.2343, on the payment of Rs.42,574.25 as price of 2 Kanals and 3 Marlas at the rate of Rs.990.99 per Marla. Muhammad Khan‑respondent is directed to deposit this amount within 30 days excluding Zar‑e‑Som, if it had already been deposited. If the respondent‑plaintiff fails to deposit the above stated amount, within 30 days i.e. till 14‑3‑2002 the suit shall stand dismissed. Parties to bear their own costs is partly allowed. H.B.T./A‑669/L Order accordingly.