Monday 7 May 2012

Suit for possession through pre-emption by Co-sharer



Present: Ch. Muhammad Younis, J.
MUHAMMAD SADIQ--Petitioner
versus
AYAZ MEHMOOD--Respondent
C.R. No. 714-D of 2002, heard on 9.1.2012.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Suit for possession through pre-emption--Expressed his intention to exercise right of pre-emption being co-sharer--Suit was dismissed on ground of contradictions in statements of prosecution witnesses--Appeal was accepted with direction to deposit sale after deducting zar-e-soim--Notice of talab-e-ishhad through registered A.D. was not denied--Postal receipt produced was never objected by petitioner before trial Court--No plea was taken in revision petition--If any evidence was produced, which was inconsistent with pleadings of a party could not be read in evidence--Validity--Non sending, non serving or non receiving of notice of talb-e-ishhad--If a specific portion of statement of the witnesses was not disputed and cross-examined the same would be presumed to have been admitted--Not even a single word had been uttered in his examination-in-chief to deny sending of notice or about its having not been received by him--Minor contradictions in statements of witnesses were not fatal--Even the contradictions or discrepancies pointed out by trial Court did not relate to material issues and could not change fate of case--Contradictions were of trivial nature and suit of respondent could not be dismissed on basis thereof as it involved his valuable rights--There is no cavil to proposition that if petitioner had categorically denied on oath receipt of notice or sending some incorrect address then respondent was under an obligation to prove same--Petitioner had not refused to receive the notice and no such endorsement was made by any postman--No statement on oath of petitioner dis-owing or denying the receipt of notice as was in cases and there was no categorical denial in his written statement about receipt of notice--High Court in exercise of its revisional jurisdiction because petitioner had not been able to point out any mis-reading or non-reading of evidence, jurisdictional error, illegality, irregularity or perversity--Revision was dismissed.        [Pp. 288 & 289] A, B, C, D & F
PLD 1994 SC 162, 2003 SCMR 686, 2004 SCMR 1719, 2006 SCMR 1410, 2008 SCMR 1366, 2008 MLD 307 & 2010 CLC 27, ref.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13(3)--Qanun-e-Shahadat Order, (10 of 1984), Art. 129--Requirements of talabs--Contention stood un-rebutted--Validity--In absence of any categorical denial the notice of talab-e-ishhad sent at correct address of petitioner would be deemed to have been reached its destination--Since respondent had fulfilled requirements of talabs as required u/S. 13(3) of Act, so appellate Court rightly accepted the appeal and decreed the suit.      [P. 289] E
Mr. Muhammad Siddiq Awan, Advocate for Petitioner.
Sardar Bilal Firdous, Advocate for Respondent.
Date of hearing: 9.1.2012.
Judgment
Briefly stated the facts relevant for the disposal of the instant revision petition are that the respondent filed a suit for possession through pre-emption in respect of the land measuring 07-Kanals and 04-Marlas situated in Mauza Malal Tehsil Fateh Jang District Attock, purchased by the petitioner from Mst. Munir Sultan vide Mutation No. 1065 dated 10.02.1999. As per respondent he came to know of the sale on 23.03.1999 at about 10:00 a.m. through Fateh Khan when he was sitting in his "Baithak" alongwith Sajjad Akbar and Sardar Zulfiqar. So, he immediately made Talb-e-Muwathibat and expressed his intention to exercise his right of pre-emption being a co-sharer in the suit land as well as on the basis of contiguity etc. The respondent also allegedly went at the land in question in presence of the witnesses and expressed his intention to exercise his right of pre-emption. They also approached the petitioner through Jirga. On the very next day i.e. 24.03.1999, a notice of Talb-e-Ishhad attested by the witnesses was sent to the petitioner through registered post vide Receipt No. 193 alongwith acknowledgement due so the requirements of Talb-e-Ishhad were fulfilled by the respondent. The notice was allegedly received by the petitioner. Thereafter the respondent filed the suit on 06.05.1999.
2.  The petitioner vehemently resisted the suit of the respondent and in his written statement took the plea that the respondent was aware of the transaction of sale and on his refusal to purchase the land the same was purchased by the petitioner. As per preliminary objections the respondent was estopped by his word and conduct from brining the suit; he had no cause of action and had not fulfilled the requirements of Talabs.
3.  The learned trial Court framed the following issues out of the pleadings of the parties.
ISSUES.
1.         Whether the plaintiff is estopped by his word and conduct to file the suit? OPD
2.         Whether Rs. 56000/- was fixed and paid bona fidely as sale price? OPD
3.         If Issue No. 2 is not proved what was the correct sale price of property at the time of sale? OP Parties
4.         Whether plaintiff has no cause of action to file this suit? OPD
5.         Whether the defendant has incurred Rs. 66200/- as incidental charge and is entitled for the same? OPD
6.         Whether the plaintiff has completed Talabs according to provisions of law? OPP
7.         Whether the plaintiff has superior right of pre-emption qua the disputed property? OPP
8.         Relief.
4.  Both the parties produced evidence in support of their respective contentions. The learned trial Court after hearing the arguments dismissed the suit of the respondent on the grounds that there were some contradictions in the statements of the PWs. The respondent filed an appeal against the judgment and decree dated 20.03.2002 and the learned Addl: District Judge accepted the appeal, set aside the impugned judgment and decree dated 20.03.2002 and decreed the suit of the respondent with the direction to deposit sale consideration of Rs. 56000/- after deducting Zar-e-Soim within 30 days.
5.  Feeling aggrieved of the impugned judgment and decree passed by the learned Addl: District Judge on 18.06.2002 the instant revision petition has been filed on the grounds that the impugned judgment and decree are against law and facts; that the learned First Appellate Court has not applied its judicial mind and the decree was passed without giving any cogent reasons; that the suit was decreed on the ground that the notice of Talb-e-Ishhad sent to the petitioner with acknowledgement due had been received by him. The petitioner prayed for setting aside the impugned judgment and decree being not sustainable in the eye of law and also prayed for restoring the judgment and decree of the learned trial Court whereby the suit of the respondent was dismissed.
6.  The learned counsel for the petitioner argued that in order to prove the service of notice of Talb-e-lshhad upon the petitioner it was necessary for the respondent to produce the postman as a witness. Non-production of the postman is fatal and the impugned judgment and decree based on wrong presumption are not sustainable in the eye of law and are liable to be set-aside. The learned counsel for the petitioner has referred to 2000 CLC 409 [Lahore] {Fateh Muhammad and 2 others versus Gulsher}, 2007 SCMR 1105 {Muhammad Bashir and others versus Abbas Ali Shah}, 2009 MLD 549 [Lahore] {Muhammad Ajmal Khan versus Muhammad Younis Khan} and 2011 SCMR 762 {Bashir Ahmed versus Ghulam Rasool} in support of his arguments. The learned counsel argued that mere sending of notice of Talb-e-Ishhad was not enough and it was the duty of the pre-emptor to prove the service of the notice upon the petitioner but in the instant case no such service has been proved so the case law referred to above as 2007 SCMR 1105 and 2011 SCMR 762 is fully applicable in the instant case.
7.  On the other hand, the learned counsel for the respondent vehemently opposed the revision petition and maintained that the facts and circumstances of the case law referred to above by the learned counsel for the petitioner are quite distinguishable from those of the present case. In the instant case the petitioner submitted his written statement and in response to Para 2 of the plaint, the plea of the respondent to have sent the notice of Talb-e-Ishhad to the petitioner through registered A.D. was not specifically denied. Similarly, the petitioner while appearing as DW-1 in the witness-box also failed to utter even a single word in his examination-in-chief about the non receipt of notice of Talb-e-Ishhad. Moreover, the postal receipt produced as Ex-P5 was also never objected to by the learned counsel for the petitioner before the learned trial Court. The learned counsel further maintained that no such plea as argued by the learned counsel for the petitioner today was taken in the revision petition. No party could produce any evidence on a point not contained in its pleadings. Even if any evidence is produced, which is inconsistent with the pleadings of a party cannot be read in evidence. The learned counsel maintained that the requirements of Talabs had been fulfilled by the respondent in accordance with law so the learned First Appellate Court rightly decreed the suit of the respondent. The learned counsel referred to PLD 1994 SC 162 {Saheb Khan through Legal Heirs versus Muhammad Pannah}, 2003 SCMR 686 {Chief Engineer, Hydel (North) and Project Director, Wapda, Warsak Versus Zafarullah Shah and another}, 2004 SCMR 1719 {Haji Feroze Khan and another versus Amir Hussain through L.Rs. and others}, 2006 SCMR 1410 {Hayat Muhammad and others versus Mazhar Hussain}, 2008 SCMR 1366 {Ghulam Abbas and another versus Manzoor Ahmed and another}, 2008 MLD 307 [Lahore] {Muhammad Sharif versus Muhammad Yousaf}, and 2010 CLC 27 [Peshawar] {Asif Rahseed Khan Durrani versus Haji Hazrat Gul} in support of his arguments.
8.  I have considered the arguments advanced by the learned counsel for the parties and have gone through the record.
9.  The findings of the learned trial Court except on Issue No. 6 were not challenged before the learned Addl: District Judge so this Court has to confine itself only to the extent of findings on Issue No. 6, which was framed in respect of the fulfillments of requirements of Talabs. A perusal of the plaint shows that in Para 2 of the plaint the respondent has specifically mentioned about the fulfillment of Talb-e-Muwathibat on 23.03.1999 in presence of the witnesses and he has also specifically mentioned that on 24.03.1999 notice of Talb-e-Ishhad was sent to the petitioner through registered post with acknowledgement due, which was received by the petitioner so he fulfilled the requirements of Talb-e-Ishhad. While submitting the written statement the petitioner in response to Para 2 of the plaint made an evasive denial without mentioning about the notice of Talb-e-Ishhad. In the same way respondent himself appeared as PW-1 in the witness box and produced PW-2 Fateh Khan and PW-3 Zulfiqar Ali being witnesses of Talb-e-Muwathibat and Talb-e-Ishhad. All of them categorically stated to have signed the notice of Talb-e-Ishhad and about its sending to the petitioner. Not even a single suggestion has been put in cross-examination by the learned counsel for the petitioner to any of the witnesses including the respondent about non-sending, non-serving or non-receiving of notice of Talb-e-Ishhad. It is an established principle of law that if a specific portion of the statement of the witnesses is not disputed and cross-examined the same shall be presumed to have been admitted. Besides it, the petitioner appeared as DW-1 in the witness box to rebut the contention of the pre-emptor/respondent and he only stated that he purchased the suit land and the respondent had no right of pre-emption in respect of the same and that he neither made any announcement  for exercising the right of pre-emption nor any Jirga was sent to him and that he had spent more than Rs. 10,000/- on the disputed land. This is the entire statement made by the petitioner. Not even a single word has been uttered by him in his examination-in-chief to deny the sending of notice or about its having not been received by him. As per evidence of PWs the notice of Talb-e-Ishhad was sent to and received by the petitioner and due to this reason he was unable to make a categorical denial of the same. The postal receipt was already on the record without any objection from the petitioner's side. So, it was not a case of mis-reading or non-reading of evidence nor there was any jurisdictional error. The learned appellate Court has rightly observed that minor contradictions in the statements of the witnesses are not fatal. Even otherwise the contradictions or discrepancies pointed out by the learned trial Court do not relate to the material issues and cannot change the fate of the case. The said contradictions are of trivial nature and the suit of the respondent could not be dismissed on the basis thereof as it involved his valuable rights. As regards the case law referred to above by the learned counsel for the petitioner, the facts and circumstances of the said cases are quite distinguishable from those of the present case. There is no cavil to the proposition that if the petitioner had categorically denied on oath the receipt of notice or sending thereof to him at some incorrect address then the respondent was under an obligation to prove the same. But in the instant case, the petitioner had not refused to receive the notice and no such endorsement was made by any postman etc. There is no statement on oath of the petitioner dis-owning or denying the receipt of notice as was in the cases referred to above and there is no categorical denial in his written statement about the receipt of notice. So, in such a situation, the presumption under the provisions of Article 129 of Qanun-e-Shahadat Order, 1984, would arise in favour of the respondent as his contention stood un-rebutted by the petitioner. In absence of any categorical denial the notice of Talab-e-Ishhad sent at the correct address of the petitioner would be deemed to have reached its destination. Since the respondent had fulfilled the requirements of Talabs as required under Section 13(3) of the Punjab Pre-emption Act, 1991, so the learned appellate Court rightly accepted the appeal of the respondent and decreed the suit.
10.  In the light of the above discussion, the judgment and decree dated 18.06.2002 passed by the learned Addl. District Judge Attock is based on sound reasoning and warrants no interference by this Court in exercise of its revisional jurisdiction because the petitioner has not been able to point out any mis-reading or non-reading of evidence, jurisdictional error, illegality, irregularity or perversity therein. So, the revision petition is hereby dismissed.
 (R.A.) Petition dismissed

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