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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