2011 PLP 1966 (MLD)

ATTAULLAH KHAN, J.

Through this revision petition, petitioner has impugned the judgment/decree dated 15-10-2005 passed by learned District Judge, Tank vide which the appeal of respondent was accepted and set aside the judgment/decree passed by learned Senior Civil Judge, Tank dated 11-9-2004 vide which the suit of petitioner/ plaintiff was decreed.

2. Facts of the instant revision are that petitioner/plaintiff filed a suit for possession through pre-emption against the respondent/defendant to the effect that the suit land was originally owned by one Ayyum Nawaz, who transferred the same in favour of defendant against sale price of Rs.2,

000. Plaintiff is co-sharer in the suit khata. He has also common right of irrigation and passage while defendant on the other hand is stranger and has got no superior right. On 13-3-2003 at about 4'O Clock came to know of impugned sale through his brother Zar Khan, while sitting in house. Immediately upon coming into knowledge of impugned sale, plaintiff made Talb-e-Mauthibat. Defendant personally asked to transfer the suit land on receipt of actual sale price but he refused, hence filed a suit in the trial Court.

3. The respondent defendant/appeared in the trial Court and submitted his written statement. The trial Court after framing issues, directed the parties to produce their respective evidence as they wished and after hearing the arguments from both sides the suit of petitioner/plaintiff was decreed vide judgment/decree dated 11-9-2004.

4. Respondent/defendant impugned the judgment/decree of the trial Court before the learned Appellate Court, who after hearing arguments of both the sides accepted the appeal of respondent/defendant vide judgment/decree dated 15-10-2005 by setting aside the judgment/decree of the trial Court, hence the instant revision petition.

5. Learned counsel for the petitioner mainly submitted that the learned appellate Court has illegally dismissed the suit on the ground that the notice of Talb-e-Ishahad was not exhibited. According to learned counsel for the petitioner the notice of Talb-e-Ishahad has been proved which is Exh.P.W.8/1.

6. On the other learned counsel for the respondent contended that the notice of Talb-e-Ishhad though produced by the plaintiff but would not admissible in evidence because the same is Photostat and no original has been produced. He also submitted that secondary evidence is also not available, therefore, the learned appellate Curt has rightly dismissed the suit of the petitioner/plaintiff.

7. Arguments heard and record perused, in the light of which my discussion is as under.

8. The original record reveals that the scribe of the notice namely Ashraf Ali has been examined by the trial Court as P.W.8. He has confirmed the notice of Talb-e-Ishhad which is Exh.P.W.8/1. Now a question to be resolved is whether the Photostat of notice Talb-e-Ishhad is sufficient to prove or original is required. This matter has been discussed by this Court in case reported in PLD 2010 Peshawar 80, wherein it is held that:-- "Similarly the contention of the learned counsel, that the factum of notice Talb-e-Ishhad by exhibiting Photostat copy has stood proved and the observation of the appellate Court that due to non-production of the original the copy could not be produced is also full of force. The provisions of Article 177 of the Qanun-e-Shahadat Order 1984 postulate that any document which in itself is a notice the same need not be proved. through secondary evidence. Reliance in this respect can be placed upon a judgment of the august Supreme Court of Pakistan reported as "Hameedullah Khan and others v. Mst. Zeenat Khatoon" 2008 SCMR 1444, the relevant portion is reproduced hereunder:-- "Ss. 6 and 13

Constitution of Pakistan (1973), Art. 185 (3)

Suit for pre-emption

Making of Talbs

Suit was dismissed by Trial Court on ground that respondent had failed to prove Talbs

Appellate Court below and then High Court, in exercise of its revisional jurisdiction, concurrently set aside judgment of Trial Court

Validity

Contention of petitioners was that Talb-e-Ishhad was not duly performed by respondent and she had failed to prove notice in that respect and that photostat copy of notice brought on record was not admissible in law

Respondent had tendered copy of notice which was in her possession after sending original to petitioners

Court was legally right to accept Photostat copy and on that score, no point was made out for grant of leave to appeal

Petition for leave to appeal was dismissed and leave declined."

9. Now the matter is clear that there is no need of producing original notice of Talb-e-Ishhad because it is supposed in possession of vendee and the only option left with the pre-emptor is to produce Photostat of the notice Talb-e-Ishhad which is sufficient for the proof of Talb-e-Ishahad.

10. As stated above the notice of Talb-e-Ishhad has been proved by the plaintiff/pre-emptor for producing his scribe and its two marginal witnesses. Notice is also exhibited in the statement of scribe which is Exh.P.W.8/1. Its receipt is also proved from A.D card and evidence of the official of postal department.

11. Keeping in view the above discussion, I accept this revision petition and set aside the judgment/decree of the appellate court dated 15-10-2005 and maintained the judgment and decree of the trial Court dated 11-9-2011. S.A.K./261/P Revision accepted.