PLJ 2012 Lahore 405
Present: Nasir Saeed Sheikh, J.
SARDAR MUHAMMAD through his Legal Heirs and others--Petitioner
versus
MUHAMMAD AMIN and 3 others--Respondents
C.R. No. 2504 of 2004, decided on 20.12.2011.
Superior Right of Pre-emption--
----Talb-e-muwathibat--Concurrent findings--Civil Court observed that although in plaint date, time and place of making talab-e-muwathibat was mentioned by plaintiff but none of witnesses produced during trial nor plaintiff mentioned date, time and place of making talb-e-muwathibat--Suit for pre-emption was dismissed by Courts below--Challenge to--Validity--Witnesses did not mention exact date on which talab-e-muwathibat was performed--The witnesses produced by petitioners did not specify date on which talb-e-muwathibat was made--Courts below had correctly recorded finding that plaintiff did not prove making of talb-e-muwathibat with specific date through evidence--Right of pre-emption was a feeble right and if plaintiff failed to prove the talb-e-muwathibat, then he could not succeed notwithstanding the fact that his superior right of pre-emption was either admitted by other party or was proved on record--Making of talb-e-muwathibat became irrelevant in light of facts--Revision was dismissed. [P. ] A, B & C
PLD 2003 SC 594 & 2007 CS 460, rel.
Mr. Muhammad Akram Khokhar, Advocate, for Petitioners.
Mr. Noor ul Hassan, Advocate for Respondents.
Date of hearing: 20.12.2011.
Order
A suit was instituted by the present petitioner for pre-emption of land measuring 10 Kanals situated in Khewat No. 264 Khatuni Nos. 408 and 409 Square No. 10 Killa Nos.6,7, 8/1, 8/2 situated in Chak No. 94 JD Tehsil Gojra, District Toba Tek Singh as per revenue record of rights for the year 1996-97. The respondents purchased the subject land for a consideration of Rs. 2,50,000/- through Mutation No. 928 dated 31.1.2000. After performing the necessary Talbs, the petitioner claimed his superior right of pre-emption and instituted a suit for possession thorough exercise of right of pre-emption in respect of the sale in question.
2. This suit was resisted by the respondents.
3. Out of pleadings of the parties, the learned Civil Judge framed the following issues:--
ISSUES:
1. Whether the plaintiff has got no cause of action?OPD
2. Whether the plaintiff has waived his right of pre-emption?OPD
3. Whether the defendants are entitled to recover compensatory costs from the plaintiff, if so, to what extent?OPD
4. Whether the plaintiff has got right of pre-emption equal or superior to that of defendants?OPP
5. Whether the plaintiff made talbs in accordance with law?OPP
6. Relief.
4. The crucial issue in this matter pertains to the Talb-e-Mawathibat which is Issue No. 5. The learned Civil Judge while recording his finding on Issue No. 5 in Paragraph No. 8 observed that although in the plaint, the date time and place of making Talb-e-Mawathibat was mentioned by the plaintiff but none of the witnesses produced during the trial nor the plaintiff himself specifically mentioned the date, time and place of making the Talb-e-Mawathibat and accordingly the learned Civil Judge on that score dismissed the suit of the petitioners through judgment and decree dated 8.1.2004. An appeal was preferred by the petitioners against the judgment and decree of the learned Civil Judge which was also dismissed vide judgment and decree dated 1.7.2004. Hence this civil revision.
5. It contended by the learned counsel for the petitioners that in order to prove the making of Talbs, the petitioners produced Ghulam Miran as PW5, who is attorney and legal heir of the original plaintiff Sardar Muhammad, Sadiq Ali as PW6 and Habib as PW7. The learned counsel contends that although these three witnesses did not make the specific mention of the date, time and place in their statements before the trial Court but as the plaintiff has mentioned the date, time and place in his plaint, therefore, the finding of the two Courts below regarding Talb-e-Mawathibat is illegal. He has placed reliance on the case law reported as Mst. Gohar Sultan Versus Gul Waris Khan (PLD 2003 Peshawar 189) to contend that the variation in the statements of the witnesses with the passage of time is a natural corollary and is to be ignored. The learned counsel contends that superior right of pre-emption of the petitioners has been admitted by the respondents in the written statement and the Talb-e-Ishaad has also been proved duly.
6. The learned counsel for the respondents has controverted the arguments and stated that pleadings do not constitute evidence in the Civil Courts and whatever is alleged in the pleadings have to be established through positive evidence by the parties before the Courts of law. The learned counsel specifically relies upon case law reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C 594) and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460) to contend that in a pre-emption matter, the facts stated in the plaint have to be specifically proved in the course of production of evidence and in case of failure of the plaintiff to prove these facts through a positive evidence the suit must fail. This aspect of the matter has been considered by the two Courts below as per the learned counsel.
7. I have considered the arguments of the learned counsel for the parties.
8. The statements of PW5, PW6 and PW7 have been read with the assistance of the learned counsel for the petitioners. It is an admitted position on the record that these three witnesses did not mention the exact date on which Talb-e-Mawathibat was performed in this case. The pleadings of the parties do not constitute evidence as is laid down by the Hon'ble Supreme Court of Pakistan reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C. 594), and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460). The witnesses produced by the petitioners do not specify the date on which Talb-e-Mawathibat was made. The two Courts below have correctly recorded finding that the plaintiffs did not prove making of Talb-e-Mawathibat with specific date through evidence. The case law relied upon by the learned counsel for the petitioners is not applicable to the facts and circumstances of the instant case. The findings of the two Courts below do not suffer from any illegality. The right of pre-emption is a feeble right and if a plaintiff fails to prove the Talb-e-Mawathibat, then he cannot succeed notwithstanding the fact that his superior right of pre-emption is either admitted by the other party or is proved on the record. Similarly the making of Talb-e-Ishaad also becomes irrelevant in the light of the above mentioned facts. The instant civil revision is devoid of any force and is accordingly dismissed. The parties to bear their own costs.
(R.A.) Revision dismissed.
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Present: Nasir Saeed Sheikh, J.
SARDAR MUHAMMAD through his Legal Heirs and others--Petitioner
versus
MUHAMMAD AMIN and 3 others--Respondents
C.R. No. 2504 of 2004, decided on 20.12.2011.
Superior Right of Pre-emption--
----Talb-e-muwathibat--Concurrent findings--Civil Court observed that although in plaint date, time and place of making talab-e-muwathibat was mentioned by plaintiff but none of witnesses produced during trial nor plaintiff mentioned date, time and place of making talb-e-muwathibat--Suit for pre-emption was dismissed by Courts below--Challenge to--Validity--Witnesses did not mention exact date on which talab-e-muwathibat was performed--The witnesses produced by petitioners did not specify date on which talb-e-muwathibat was made--Courts below had correctly recorded finding that plaintiff did not prove making of talb-e-muwathibat with specific date through evidence--Right of pre-emption was a feeble right and if plaintiff failed to prove the talb-e-muwathibat, then he could not succeed notwithstanding the fact that his superior right of pre-emption was either admitted by other party or was proved on record--Making of talb-e-muwathibat became irrelevant in light of facts--Revision was dismissed. [P. ] A, B & C
PLD 2003 SC 594 & 2007 CS 460, rel.
Mr. Muhammad Akram Khokhar, Advocate, for Petitioners.
Mr. Noor ul Hassan, Advocate for Respondents.
Date of hearing: 20.12.2011.
Order
A suit was instituted by the present petitioner for pre-emption of land measuring 10 Kanals situated in Khewat No. 264 Khatuni Nos. 408 and 409 Square No. 10 Killa Nos.6,7, 8/1, 8/2 situated in Chak No. 94 JD Tehsil Gojra, District Toba Tek Singh as per revenue record of rights for the year 1996-97. The respondents purchased the subject land for a consideration of Rs. 2,50,000/- through Mutation No. 928 dated 31.1.2000. After performing the necessary Talbs, the petitioner claimed his superior right of pre-emption and instituted a suit for possession thorough exercise of right of pre-emption in respect of the sale in question.
2. This suit was resisted by the respondents.
3. Out of pleadings of the parties, the learned Civil Judge framed the following issues:--
ISSUES:
1. Whether the plaintiff has got no cause of action?OPD
2. Whether the plaintiff has waived his right of pre-emption?OPD
3. Whether the defendants are entitled to recover compensatory costs from the plaintiff, if so, to what extent?OPD
4. Whether the plaintiff has got right of pre-emption equal or superior to that of defendants?OPP
5. Whether the plaintiff made talbs in accordance with law?OPP
6. Relief.
4. The crucial issue in this matter pertains to the Talb-e-Mawathibat which is Issue No. 5. The learned Civil Judge while recording his finding on Issue No. 5 in Paragraph No. 8 observed that although in the plaint, the date time and place of making Talb-e-Mawathibat was mentioned by the plaintiff but none of the witnesses produced during the trial nor the plaintiff himself specifically mentioned the date, time and place of making the Talb-e-Mawathibat and accordingly the learned Civil Judge on that score dismissed the suit of the petitioners through judgment and decree dated 8.1.2004. An appeal was preferred by the petitioners against the judgment and decree of the learned Civil Judge which was also dismissed vide judgment and decree dated 1.7.2004. Hence this civil revision.
5. It contended by the learned counsel for the petitioners that in order to prove the making of Talbs, the petitioners produced Ghulam Miran as PW5, who is attorney and legal heir of the original plaintiff Sardar Muhammad, Sadiq Ali as PW6 and Habib as PW7. The learned counsel contends that although these three witnesses did not make the specific mention of the date, time and place in their statements before the trial Court but as the plaintiff has mentioned the date, time and place in his plaint, therefore, the finding of the two Courts below regarding Talb-e-Mawathibat is illegal. He has placed reliance on the case law reported as Mst. Gohar Sultan Versus Gul Waris Khan (PLD 2003 Peshawar 189) to contend that the variation in the statements of the witnesses with the passage of time is a natural corollary and is to be ignored. The learned counsel contends that superior right of pre-emption of the petitioners has been admitted by the respondents in the written statement and the Talb-e-Ishaad has also been proved duly.
6. The learned counsel for the respondents has controverted the arguments and stated that pleadings do not constitute evidence in the Civil Courts and whatever is alleged in the pleadings have to be established through positive evidence by the parties before the Courts of law. The learned counsel specifically relies upon case law reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C 594) and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460) to contend that in a pre-emption matter, the facts stated in the plaint have to be specifically proved in the course of production of evidence and in case of failure of the plaintiff to prove these facts through a positive evidence the suit must fail. This aspect of the matter has been considered by the two Courts below as per the learned counsel.
7. I have considered the arguments of the learned counsel for the parties.
8. The statements of PW5, PW6 and PW7 have been read with the assistance of the learned counsel for the petitioners. It is an admitted position on the record that these three witnesses did not mention the exact date on which Talb-e-Mawathibat was performed in this case. The pleadings of the parties do not constitute evidence as is laid down by the Hon'ble Supreme Court of Pakistan reported as Faqeer Muhammad and 8 others Versus Abdul Momin and 2 others (PLD 2003 S.C. 594), and Sh. Fateh Muhammad Versus Muhammad Adil and others (PLD 2007 S.C.460). The witnesses produced by the petitioners do not specify the date on which Talb-e-Mawathibat was made. The two Courts below have correctly recorded finding that the plaintiffs did not prove making of Talb-e-Mawathibat with specific date through evidence. The case law relied upon by the learned counsel for the petitioners is not applicable to the facts and circumstances of the instant case. The findings of the two Courts below do not suffer from any illegality. The right of pre-emption is a feeble right and if a plaintiff fails to prove the Talb-e-Mawathibat, then he cannot succeed notwithstanding the fact that his superior right of pre-emption is either admitted by the other party or is proved on the record. Similarly the making of Talb-e-Ishaad also becomes irrelevant in the light of the above mentioned facts. The instant civil revision is devoid of any force and is accordingly dismissed. The parties to bear their own costs.
(R.A.) Revision dismissed.
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