2006 PLP 1153 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This civil revision assailed the appellate judgment/decree dated 29-1-2005 passed by the learned Additional District Judge Gujrat whereby appeal of respondent was accepted and the judgment/decree dated 25-11-2004 by the trial Court was set aside decreeing respondent's suit for possession through pre-emption for an amount of Rs.2,50,000.

2. Succinctly, relevant facts are that the respondent filed a suit for possession through pre-emption against the sale of land measuring 9 Kanals and 12 Marlas effected through Mutation No.3684 dated 16-11-1999, for consideration of Rs.2,00,000 while ostensible value mentioned done as 2,50,

000. The respondent/plaintiff claimed his superior pre-emptive right being "Shafi Sharik" and "Shafi Khalit" and pleaded that he gained knowledge of sale on 20-2-2000 at 11-00 a.m. through Muhammad Ahsan son of Walayat Hussain when he immediately expressed his intention of filing pre-emption suit and thus, performed "Talb-e-Muwathibat". In his plaint dated 11-3-2000 he also asserted that he performed "Talb-i-Ishhad" by dispatching the notice dated 24-2-2004 attested by two truthful witnesses and the third Talb was completed by filing of suit.

3. The petitioner being defendant in the suit, contested the same by filing his written statement denying the claim of the respondent and refuting the performance of "Talbs" by him. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge who was seized of the matter after doing the needful dismissed the suit of the respondent vide his judgment/decree dated 25-11-2004.

4. The respondent being aggrieved of the decision by the trial Court, filed an appeal before the learned Additional District Judge where he succeeded, as his appeal was accepted and his suit was decreed, as noted above, by reversing the judgment/decree of the trial Court. The petitioner thereafter filed the instant revision petition and respondent in response to notice by this Court, has appeared and is represented through his counsel.

5. The learned counsel for the petitioner submitted that the respondent could not prove performance of "Talbs" as per provisions of section 13 of the Punjab Pre-emption Act 1991, thus, his suit could not have been decreed. According to him, all the three P.Ws. produced by the respondent were not only discrepant about the time, date and place of performance. of "Talb-e-Muwathibat" by respondent but necessary details of it were also lacking in the plaint. It was further emphasized that besides the fact that performance of "Talb e-Muwathibat" is not proved through consistent/trustworthy evidence, the respondent could not show that he performed "Talb-i-Ishhad" by sending notice to all the petitioners at their correct addresses. It was further submitted that the appellate judgment/decree being tainted with defect of misreading of evidence, is not sustainable. According to him appellate Court could not reverse the well-reasoned judgment of the trial Court without meeting the points evolved, therein.

6. The learned counsel for the respondent refuted the assertions of the petitioner, supported the appellate judgment and argued that the minor discrepancies in evidence of the witnesses about performance of "Talb-i-Muwathibat", would not lead to rejection of their statement in entirety. According to the learned counsel for the respondent minor contradictions in the statements of witnesses were bound to occur by lapse of time especially when they were illiterate. It was further submitted that the appellate judgment being in accordance with evidence on the file, has to be preferred by the revisional Court and thus, the same deserved no indulgence on this petition. Dismissal of civil revision was assertively emphasized by the learned counsel for the respondents.

7. I have minutely considered the arguments of the learned counsel for the parties and have examined the record, appended herewith. Undisputedly re-appraisal of evidence is not permissible in revisional jurisdiction of this Court but in order to verify the claim of the petitioner of its misreading by the appellate Court, scan of statements of the witnesses became inevitable. The respondent in order to prove performance of "Talbs" according to requirements of section 13 of the Punjab Pre-emption Act, 1991, examined three witnesses including his own statement as P.W.1 He while in witness box deposed that knowledge of sale of 9 Kanals, 9 Marlas of land by Aurang Zaib etc. was conveyed to him by Muhammad Ahsan on 20-2-2000 when he was sitting in my house, in afternoon and on gaining of knowledge, he immediately exclaimed my intention of filing pre-emption suit. He further stated that the land in question was sold for Rs.2,00,000 but in order to defeat his pre-emptive right, price was inflated to Rs.2,50,

000. He further went on to depose that on 24-2-2000 he went to the Courts premises and got notice of "Talb-i-Ishhad" prepared from his counsel and dispatched the same to the petitioners under his signatures. Five notices despatched were tendered in evidence a Exh. P.1 to Exh.P.5 whereas his signatures were marked as Exh.P.W.1/1 to Exh.P.W.1/5. In the light of this claim on oath of the respondent we have to examine his stance in the plaint besides proof provided by him through statements of P.Ws. Nos.2 and

3. In para.4 of the plaint, respondent had mentioned that he gained knowledge of sale through Muhammad Ahsan his son and Muhammad Zaman son of Taj Din both residents of Jalal pur Sobattian Tehsil Gujrat on 20-2-2000 at 11-00 a.m. when he was sitting in his house and he immediately made "Talb-i-Muwathibat" in the same Majlis there and then. Comparison of statement of P.W.1 and averments in the plaint clearly proved that the petitioner had himself in the plaint given the time of knowledge at 11-00 a.m. whereas in his statement as P.W.1 he gave this time of afternoon.

8. P.W.2 who is real son of the respondent and resides independently away from him in another village i.e. Jalalpur Sobattian, stated that he conveyed information of sale in question to his father on 20-2-2000 at 11-00 a.m. in the presence of Muhammad Zaman in his own house in village Jalalpur Sobattian. Though this witness corroborated date and time mentioned in the plaint yet negated stance of the respondent about the place of knowledge as mentioned by him in the plaint and his statement before the Court, by saying that it was conveyed to him at his house in village Ajnala, Tehsil Gujrat. P.W.3 Muhammad Zaman is the other informer who rendered support to the respondent by deposing that Muhammad Ahsan P.W.2 in his presence informed the respondent about the sale subject of suit, in his house at 11-00 a.m. when he made Talb-i-Muwathibat but this witness could not make good the damage done by P.W.2 who was a literate person being teacher by profession and was son of the respondent, as well and deposed with all awareness that information of sale was conveyed in his house in Jalalpur Sobattian and not in village Ajnala, as claimed by the respondent where he resided separately. Contradictions about time of performance of "Talb-i-Muwathibat" in plaint and statement of P.W.1 and that of its place as mentioned by P.W.2 as compared to other P.Ws. and as per plaint specifying two different places in different villages i.e. village Ajnala where the respondent resided and village Jalalpur Sobattian where his son P.W.2 is residing, were not so minor to be ignored because anyone of these two pointed contradictions besides the other, would lead to the conclusion that all the narration of performance of "Talb-i-Muwathibat". was concoction and was not proved. No doubt on the basis of minor discrepancies, statements of the witnesses cannot be ignored in entirety especially the witnesses are illiterate but none of the tests, laid down in the case of Abdul Qayyum (supra) are fulfilled in the case in hand. Neither P.W.2 was illiterate nor the pointed contradictions/discrepancies are minor, as he being the son of the pre-emptor was supposed to have acted with more care/caution.

9. As regards performance of "Talb e-Ishhad" by sending notice under a registered cover A.D. to the vendees though was alleged to have been completed within 15 days from the alleged date of knowledge of Sale/Talb-e-Muwathibat on 20-2-2000 yet the record revealed that the same was manoeuvred to save his pre-emptive rights, if any, from extinguishment as per section 13 of the Punjab Pre-emption Act 1991. Respondent had himself pleaded in his plaint that he along with his witnesses visited the petitioners in their house, the same evening, when he came to know about sale in question. As against this assertion in the plaint, respondent while in the witness box as P.W.1 deposed that he went to the defendants on 21-2-2000. Similar are the statements of P.Ws. 2 and 3 who had stated visit to the petitioners on 21-2-2000. The respondent issued notices to the petitioners vide postal receipts Exh.P.11 to Exh.P.15 and acknowledgment due receipts were produced in evidence as Exh.P.16 to Exh.P.20. Since performance of "Talb-e-Muwathibat" on 20-2-2000 is not proved as per findings in the foregoing paragraphs, notice of "Talb-e-Ishhad" also lost any favourable effect in favour of the respondent.

10. Above scan of evidence revealed that the conclusion drawn by the trial Court were correct but those were erroneously reversed by the appellate Court by grading the major contradictions as minor which were destructive to the main stance of the respondent, hence the appellate judgment is not sustainable being opposed to record and settled canons known for administration of justice.

11. For all the reasons noted above, the appellate judgment is not maintainable and deserved to be reversed. The instant revision petition is accordingly accepted by setting aside the appellate judgment/decree dated 29-1-2005, and suit of the respondent is ordered to be dismissed, reviving judgment of the trial Court dated 24-11-2004. There will be no order as to costs. F.M./M-1457/L Petition accepted.