1999 PLP 1863 (YLR)

10. Learned counsel for the petitioner in this regard, has vehemently argued that the entire evidence led by the petitioner has been totally ignored. It is stated that Abdul Hameed (D.W.3), Malik Mushtaq (also erroneously numbered) D.W.3, Anwar‑ul -Haq, D.W.4 (vendee) and Muhammad Ismail (D.W.5) in unequivocal terms have stated that the land measuring 10 Marlas which was purchased by respondent from Anwar‑ul -Haq's father (D.W.4) and on the basis whereof, he claims to be co‑sharer of the suit property, is a graveyard. All this evidence has not been considered, examined or even referred to by the Courts below. On the other hand, learned counsel for the respondent has controverted the above position.

11. Arguments have been heard and record has been perused.

12. Admittedly, the petitioner had appeared as D.W.2 who has stated that 10 Marlas of land is a graveyard and quite a number of persons belonging to different sects of the village inhabitants are buried therein. D.W.3 Abdul Hameed, has also stated that the said 10 Marlas of land being graveyard is bounded by a wall and that this land was purchased by the respondent through public contributions. He also stated that the graves of his father and sister‑in‑law are also in this graveyard. No significant cross -examination has been made on the statement of this witness. Mushtaq Ali (again numbered as D.W.3) who is Lumberdar of the village, has endorsed the view of Abdul Hameed and again he has not been effectively subjected to cross‑examination on this point. D.W.4, Anwar‑ul‑Haq, is the son of Amirdad, who had sold 10 Marlas of land in favour of respondent, in unequivocal terms has stated that his father had sold such land for the purpose of graveyard, for common use of the village and that he only charged for 8 Marlas, whereas remaining 2 Marlas was contributed by him for the above purpose. His father is the first person to be buried in this graveyard.

13. From the statement of D.W.6, Malik Muhammad Arshad, Advocate, who was appointed as local Commission by the Court, it is clear that there are 17 graves over this 10 Marlas of land, which is bounded by a wall and it is not being cultivated. His statement had not been again materially subjected to any cross‑examination.

14. Respondent in fact did not lead any positive evidence to controvert and rebut the position set up by the petitioner with regard to the nature of the property as a graveyard. However, it has been maintained by learned counsel for the respondent that as such piece of land stands in the ownership of the respondent in the Revenue Record, therefore, irrespective of its use as a graveyard, respondent remains to be the owner and the co‑sharer and could competently pre‑empt the disputed sale. It was also mentioned that the graveyard is not of a public nature but respondent has permitted certain dead persons to be buried, as there is no dedication by respondent to create a Wakf, thus respondent still holds the ownership and is not divested of his proprietary right.

15. I am afraid that the contentions raised by learned counsel for the respondent in view of the facts, circumstances of the case as also the evidence on the record, are not forceful. According to Article 188 of the Muhammadan Law by Mulla:‑‑ "Wakf by immemorial user: If land has been used from time immemorial for a religious purpose, e.g., for a mosque or a burial ground or for the maintenance of a mosque, then the land is by user Wakf although there is no evidence of an express dedication." In a case reported as PLD 1968 Peshawar 181, which was a pre‑emption matter and one of the propositions involved was as to whether the provision of N.‑W.F.P. Act (XIV of 1950), section 12(3) entitles owners of contiguous property to claim right of pre emption, when such property was used as a graveyard and the person pre‑empting was a co‑sharer in the Shamlat deh. It was held, that as the land is being used as a graveyard, the property was dedicated for the purpose of a graveyard, the pre‑emptor who happens to be a co‑sharer in the Sahmilat ceases to be an owner; because the moment Wakf is made, ownership of the original owner ceases and by fiction vests in the Almighty Allah.

16. From the aforesaid judgment, further support can be had that where any piece of land is used for a graveyard, for considerable length of time, the creation of Wakf and dedication can be validly presumed. In the instant case, respondent has produced no evidence to rebut or dispel the above presumption. Admittedly, 10 Marlas of land ostensibly owned by him, is being used as a graveyard. Since more than two decades as proved on the record.

17. Learned counsel for the petitioner has also relied upon 1995 SCMR 1584, to argue that where a land has been sold for the purpose of mosque and it was established that the sale is for the above purpose, the buyer was not purchasing the property as a owner but for the purpose of Wakf. In this case, to strengthen his argument, he has made reference to the statement of certain D.Ws., referred to above, who in unequivocal terms have mentioned that the land was purchased by respondent with the public contribution and with a clear object of setting up a graveyard. Even Anwar‑ul‑Haq, son of the vendor to the respondent, has without any ambiguity stated that the land was sold by his father for the purpose of graveyard and he (the seller) did not charge for two Marlas.

18. The user of the land is of considerable importance in this case, which has not been shown by respondent, that any part of that 10 Marlas is being cultivated or used for any other purpose. It is bounded as stated by D.Ws. and also reported by local Commissioner, by construction of wall, therefore, admittedly, it is only a graveyard, for the last more than two decades. Learned counsel for the petitioner has rightly placed reliance on PLD 1961 (W.P.) Lahore 993, to argue that though in the present case, there is direct evidence of dedication, but even if it is argued that he has no written instrument in that behalf, the user of the property would establish a clear nature of the Wakf property. He in support of his submission, has also relied upon 1993 MLD 1612.

19. From the above arguments and the case‑law cited as also from the perusal of the record, I have no doubt in my mind, that the land shown to be owned by respondent in the Revenue Record in fact was purchased with the intention to use the same for the purpose of graveyard of the inhabitants of the village. There is strong evidence to show that it was purchased through contribution of the residents of the village. Even two Marlas of land had been donated by the seller. As there is no cross‑examination to this piece of evidence of the statements, thus it would be deemed to have been admitted by respondent. Resultantly, it would be a Wakf property vesting in the God Almighty and the only reason that the name of the respondent is contemplated in the Revenue Record, would not establish that he is the owner/co‑sharer entitling him to file a suit for pre‑emption. Both the Courts below have fallen in serious error of not considering the evidence produced by the petitioner and have only relied upon the Revenue Record particularly Exh.P.4, which in the facts and circumstances of the case, has no value to prove the ownership of the respondent.

20. In view of the above, I set aside the findings of both the Courts below on Issues Nos. l and 4 holding that the respondent was not the co‑owner of 10 Marlas of land which was the basis for his right of pre‑emption and consequently neither had a cause of action nor any superior right of pre‑emption.

21. Now coming to Issue No.3, findings of the trial Court are given in paragraph No.8 as follows:‑‑ "P.W.1 has fully supported the exercise of Talab‑i‑Muwathibat by the plaintiff. No material discrepancy about the date, time, place and the witnesses of Talab‑i- Muwathibat has been found. Whereas, the petitioner has failed to show that the sale from the day one, was in the knowledge of the respondent." Thus according to the judgment of learned trial Court, the statement of the respondent, supported by P.W.2 was sufficient to establish the Talab‑i‑Muwathibat.

22. As regards Talab‑i‑Ishhad, the learned trial Court made reference to paragraph No.5, the plaint, wherein it is averred that a notice duly attested by two witnesses has been sent by the respondent on 19‑3‑1994. From the corresponding para. of the written statement, it is clear that the receipt of the notice has been accepted and acknowledged by the petitioner. This document is Exh.D.1, on the record, produced by defendant/petitioner's side itself, consequently, it cannot be said that Talab‑i- Ishhad has not been made in‑accordance with law.

23. The Appellate Court has more or less endorsed the findings of the trial Court on the issue of Talabs, but. by use of different expression. Regarding Talab‑i‑Muwathibat an additional reason is that the statement of P.W.(sic) which was on oath and was affirmed by "P.W.2, could not be controverted or subjected to discredit from veracity in cross‑examination". As regards Talab‑i‑Ishhad, the Court in appeal has also relied upon Exh.D.l, the notice, dated 19‑3‑1994, which is stated to have been brought on record by the petitioner.

24. Learned counsel for the petitioner has argued that both the Courts below have grossly misread the evidence on record. He has made reference to paragraph No.3, of the plaint, to submit that as per averments contained therein, the case of the respondent was that he came to know of the impugned sale on 14‑3‑1994, at his residence in the presence of witnesses namely Khuda Dad and Ali Akhtar and he immediately in the same assembly, made a declaration to enforce his right of pre‑emption. Thus he made Talab‑i- Muwathibat accordingly; but while appearing as a witness (P.W.1), states that at the relevant time, Malik Khuda Dad (P.W.2), Akhtar Ali and Malik Muhammad Asmat son of Muhammad Aslam, were present; all of them, apprised him about the sale, whereupon he made the declaration. In cross -examination, he confines that regarding the sale, Malik Asmat and Khuda Dad told him and that Malik Asmat told him first. Both these persons appeared as P.W.2 and P.W.3, respectively. Khuda Dad in his examination -in‑chief stated that in March, 1994, he went to offer Eid greeting to Malik Asmat, who was sitting in the house of the respondent, thus he accordingly went to the house of the respondent, where Akhtar Ali was also present. The discussion about the disputed sale took place and the respondent said that he will exercise his right of pre‑emption.

25. In the cross‑examination, he stated that Malik Muhammad Zafar (respondent) did not say as to who apprised him of the sale in dispute. It is after 15 to 20 minutes of his presence over there that Malik Muhammad Zafar told about the sale and he came to know of the sale on 14‑3‑1994. The sale in dispute came to his knowledge in the Baithak of Malik Zafar, respondent. All this evidence, according to the learned counsel, has been totally ignored by the Courts below and thus it constitutes not only misreading but also non‑reading.

26. In addition to the above, it is also stated that both the Courts below have closed their eyes on the vital aspect of the statement made by respondent (P.W.1), whereby he conceded the knowledge of the sale long before meeting, dated 4‑3‑1994. In this behalf, reference has been made to the statement of P. W .1; he attained the knowledge about the details of the property from the perusal of the Revenue Record, but shows ignorance how he got the number of the registered deed of sale; even answered that he does not remember whether he got the same from the Tehsil Office. He, however, accepted that he came to know about the sale price, from the Office of Sub‑Registrar and further that he got the information even otherwise, but again stated that he does not remember as to how he was able to know about the contents of the sale‑deed. Regarding the price of Rs.42,000, he states that he came to know of this, in the village but could not state the name of person who apprised him about this. Though he specifically mentioned the name of Anwar‑ul‑Haq who told him that the price he received was meagre but states that he does not remember as to how many days after the sale, Anwar‑ul‑Haq disclosed the above fact to him.

27. It is mentioned in the plaint (paragraph No.4), that the respondent and the witnesses went to the petitioner, but he disowned this in his cross‑examination.

28. With regard to Talab‑i‑Ishhad, it is the case of the petitioner that the notice was not sent to him at his proper address, though as admitted by P. W .1, in his cross -examination that the petitioner was residing in Rawalpindi, still the notice was sent to the address of village and it is only on 16‑4‑1994, when the notice was posted to the petitioner at his address in Rawalpindi which was received on 24‑4‑1994, after the institution of this case.

29. Conversely, learned counsel has defended these findings by stating that being concurrent in nature such factual findings cannot be interfered in revisional jurisdiction. Obviously, concurrent findings of fact based upon proper reading of evidence would not call for any intervention but if such findings are not based upon proper reading of the record; those arc not immune from examination and correction in revision, which is the supervisory jurisdiction of this Court.

30. The trial Court with regard to Talab- i‑Muwathibat has simply based its findings on the statement of P.W.1 and claims support from P.W.2, whereas the Appellate Court by just endorsing such findings has come to the conclusion that the statements have not been discredited in cross‑examination. I find this to he absolutely erroneous and result of misreading of the record. As pointed out by learned counsel for the petitioner, there are serious, material and fundamental contradictions vis‑a‑vis plaint, statement of P.W.2 and P.W.1, the respondent himself. Akhtar Ali who is claimed by the respondent to be present on 4‑3‑1994, the day allegedly of divulgence of the sale has not been produced. Malik Asmat an important witness, though was produced as P.W.3, he declined to give statement in favour of the petitioner, meaning thereby, he did not support respondent's case. Respondent appeared as P. W .1 and stated that all the three persons named above, told him about the sale in dispute, whereas P.W.2 has in clear terms stated that it is in fact the respondent who apprised of the transaction. Still the Courts below have found that respondent has been able to prove Talab- i‑Muwathibat. From the statement of P.W.1, read with statement of P. W .2, there are inherent contradictions which have been totally ignored by the Courts below. It seems that the respondent had knowledge of the sale earlier; he obtained particulars of the sale -deed but with an object to cover the lack of Talab-i‑Muwathibat, when he first attained the knowledge, the story of meeting on 4‑3‑1994, was concocted. Only witness produced in this behalf is P.W.2 and claimed by respondent, as one of those who informed him about the transaction, himself admitted that he in fact came to know of the sale on 14‑3‑1994, while in the Beithak of the respondent and it is the respondent who apprised him of the sale. In view of above, I hold that the respondent has miserably failed to establish the Talab‑i‑Muwathibat in unequivocal terms as legally required. There fore, the findings of both the Courts below on Issue No.3, are reversed and set aside.

31. With regard to the service of notice, as the same is to be sent not later than two weeks on attaining of knowledge of transaction and making of Talab‑i- Muwathibat, because the respondent has not been able to establish that he came to know of the transaction exactly on 14‑3‑1994, therefore, sending of notice on 19‑3‑1994, would not be of much relevance 'or significance to prove the second Talab. However, I am not inclined to agree with learned counsel for the petitioner that as the notice was sent at the village address of the petitioner, whereas he was residing in Rawalpindi, thus the earlier notice has no legal value. The second notice sent on 14‑4‑1994, received by the petitioner on 24‑4‑1994, was after institution of the suit and is not due compliance of law.

32. Admittedly, the petitioner's address in the sale‑deed ‑is his village and the respondent was only obliged to send a notice to the address which was mentioned in the document of title. In view of above, this revision petition is accepted, findings of the Courts below on Issues Nos. 1, 3 and 4 are set aside and the suit of the respondent is dismissed with costs throughout. Q. M. H. /M. A. K./M‑1120/L Revision allowed .