PLJ
2004 Lahore
Present: muhammad muzammal khan, J. RIAAZ AHMAD-Petitioner
versus
MUHAMMAD SADIQ-Respondent C.R. No. 2455-D of
1996, decided on 2.1.2004.
—-S. 13-Civil
Procedure Code, 1908 (V of 1908), S. 115-Revision Jurisdiction-Suit for
pre-emption-Trial Court found that plaintiff tu superior right, but on basis of
appraisal of evidence, suit of petitioner w; dismissed-Plaintiff s appeal also met
same fate-Validity-Petiitoner i doubt has superior pre-emptive rights and has
so been held by Couiah.below-Pre-empt sale in favour of respondent, asserted in
plaint came to know of sale in dispute and immediately made jumping demand that he will pre-empt it as his right superior and
in this manner performed talab-e-muwathibat
and thereafter made talb-e-Iskkad-Knowledge
of sale has been asserted to have gained by petitioner just after
four days which does not appear to be
un-natural and being prompt, there is hardly anything on file to doubt it-Petitioner has substantially
performed talabs required by S. 13
and has proved those by evidence-PW 2 is not only informer giving
information of sale to petitioner, but is also witness of talab-e-Muwathibat
and has also signed notice of talab-e-Ishhad as its marginal
witness—Other marginal witness of notice was not present at time of talab-e-Muwathibat, as such was not supposed to depose anything regarding it-Law does not require that talab-e-muwathibat
be made in presence of two
witnesses who should also sign notice of talab-e-Ishhad-Petitioner had performed talabs in accordance with
law and as such his suit could not have been dismissed but Courts below
relying on minor discrepancies which do not
dispel impact of evidence of PWs, incorrectly non suited him-Respondent while appearing as witness stated that he incurred amount of as expenses for execution and
completion of sale deed-His statement
to this extent was not cross-examined which means that petitioner has admitted
that claim of respondent-Held: Decisions of Courts below run counter to evidence on file, consequently cannot be maintained-Held further: Petitioner will
pay amount as incidental charges in
addition to sale price-Petition succeeds.
[Pp. 1214, 1215 & 1216] A, B, C, D, E, F & G
Mr. Imran Raza Chadhar, Advocate for
Petitioner. Mr. Taqi Ahmad Khan, Advocate for Respondent. Date of hearing: 23.12.2003.
judgment
This civil revision
assails the judgments and decrees dated 18.4.1994 nd 12.3.1995 passed by the learned Civil
Judge and the learned Additional )istrict Judge, Daska District Sialkot,
whereby, the suit of the petitioner and is
appeal was dismissed, respectively.
2. Precisely,
relevant facts for the disposal of this petition are that le petitioner filed a suit for possession
through pre-emption against the sale Elected
through a registered sale deed dated 19.12.1992 for an amount of -s. 1,75,000/- regarding land measuring 10 kanals
and 2 marlas in village ihokhay
Wali, Tehsil Daska District Sialkot. He pleaded that he gained nowledge of sale on 24.12.1992 and immediately
exclaimed intention to ave the land
in question by filling a pre-emption suit, fulfilling the jquirement of talab-e-muwathibat. The
petitioner also pleaded that after :lab-e-muwathibat he issued a
notice under a registered postal cover, xknowledgment
due dated 24.12.1992 performing talab-e-Ishhad and lereafter he filed the suit on 8.3.1993 and
performed talab-e-khasumat. The petitioner
claims his superior pre-emptive right being "Shafi Khalit" and Shafi Jar" i.e. being owner of adjacent
property, having joint ways and means of
irrigation.
2. The respondent being defendant in the suit
contested it and
controverted the assertion in the plaint. He also denied performance of
talabs by the petitioner and urged for dismissal of the suit. Controversial
pleadings of the parties necessitated framing of issues and recording of
evidence. The learned trial Judge who was seized of the matter, on the basis
of his appraisal of evidence, dismissed the suit of the petitioner vide his
judgment and decree dated 18.4.1994.
controverted the assertion in the plaint. He also denied performance of
talabs by the petitioner and urged for dismissal of the suit. Controversial
pleadings of the parties necessitated framing of issues and recording of
evidence. The learned trial Judge who was seized of the matter, on the basis
of his appraisal of evidence, dismissed the suit of the petitioner vide his
judgment and decree dated 18.4.1994.
3.
The petitioner aggrieved of the decision of the trial
Court dated
18.4.1994 filed an appeal before the learned Additional District Judge but
remained unsuccessful, as his appeal was dismissed vide his judgment and
decree dated 12.3.1999. Thereafter he came up before this Court in
revisional jurisdiction against the concurrent judgments and decrees of both
the Courts below, for their annulment.
18.4.1994 filed an appeal before the learned Additional District Judge but
remained unsuccessful, as his appeal was dismissed vide his judgment and
decree dated 12.3.1999. Thereafter he came up before this Court in
revisional jurisdiction against the concurrent judgments and decrees of both
the Courts below, for their annulment.
4.
The learned counsel for the petitioner submits that both
the
talabs i.e. talab-e-muwathibat and talab-e-Ishhad were performed by the
petitioner which were duly asserted by him in his plaint and were proved
through evidence on the file but both the Courts have incorrectly relied on
the minor discrepancy is in the statements of witnesses and non-suited the
petitioner. The learned counsel for the petitioner further submits that
contradictions, if any, are of minor nature, which do not effect performance
of talabs by the petitioner. He claimed that substantial compliance ol
performance of talabs and discharge of onus placed on him, in accordance
with the provisions of law, is evident on the face of the record but a contrary
view is not sustainable.
talabs i.e. talab-e-muwathibat and talab-e-Ishhad were performed by the
petitioner which were duly asserted by him in his plaint and were proved
through evidence on the file but both the Courts have incorrectly relied on
the minor discrepancy is in the statements of witnesses and non-suited the
petitioner. The learned counsel for the petitioner further submits that
contradictions, if any, are of minor nature, which do not effect performance
of talabs by the petitioner. He claimed that substantial compliance ol
performance of talabs and discharge of onus placed on him, in accordance
with the provisions of law, is evident on the face of the record but a contrary
view is not sustainable.
5. Conversely, the learned counsel for the respondent
besides
supporting the judgments and decrees of the Courts below, refuted the
submissions of the petitioner and urged that concurrent findings of facts
delivered by the two Courts below can neither be made subject of scrutiny
this Court nor re-appraisal of evidence in revisional jurisdiction,
permissible under law. He further contends that contradictions noted by
two Courts below, go to show that witnesses of the petitioner are no
truthful and their statements cannot be based for the proposition that
petitioner performed the required talabs. He further elaborates
arguments by saying that witnesses of both the talabs, taiab-e-muwathiba
and Talab-e-lshhad should be the same because a pre-emptor is required
re-affirm the talab-e-muwathibat while making second talab, i.e. talal
Ishhad. He referred; to the judgment in the case of Muhammad Ramzan vs
Lai Khan (1995 SCMR 1510) Abdul Qayyurn vs. Muhammad Rafique (200 SCMR 1651) and Anwar Ali vs. Shah Nawaz and others (PLD 1989Karachi
supporting the judgments and decrees of the Courts below, refuted the
submissions of the petitioner and urged that concurrent findings of facts
delivered by the two Courts below can neither be made subject of scrutiny
this Court nor re-appraisal of evidence in revisional jurisdiction,
permissible under law. He further contends that contradictions noted by
two Courts below, go to show that witnesses of the petitioner are no
truthful and their statements cannot be based for the proposition that
petitioner performed the required talabs. He further elaborates
arguments by saying that witnesses of both the talabs, taiab-e-muwathiba
and Talab-e-lshhad should be the same because a pre-emptor is required
re-affirm the talab-e-muwathibat while making second talab, i.e. talal
Ishhad. He referred; to the judgment in the case of Muhammad Ramzan vs
Lai Khan (1995 SCMR 1510) Abdul Qayyurn vs. Muhammad Rafique (200 SCMR 1651) and Anwar Ali vs. Shah Nawaz and others (PLD 1989
6. I
have anxiously considered the arguments of the learned counsel
for the parties and have examined the record appended herewith. The
petitioner no doubt has a superior pre-emptive rights and has so been held
by both the Courts below. He in order to pre-empt the sale in favour of the
respondent, asserted in para 4 of the plaint that he came to know on
24.12.1992 of the sale in dispute and immediately on gaining knowledge,
made a jumping demand that he will pre-empt it as his right superior, to
that of the respondent and in this manner performed talab-e-muwathibat
and thereafter made talab-e-Ishhad by sending a notice attested by two
truthful witnesses under a registered postal cover and in this view of the
matter performed talab-e-Ishhad. These assertions in the plaints were
proved through his own statement as PW.l and those of PWs. 2 and 3. PW. 2
is the person who informed the petitioner regarding, the sale in dispute and
he is also a witness of notice of talab-e-Ishhad (Ex. P.I). Talab-e-muwathibat
was performed by the petitioner in his presence. PW. 3 is the second
witnesses of notice of talab-e-Ishhad (Ex. P.I) Statements of PW.l and 2 duly
proved performance of talab-e-muwathibat as asserted in the plaint and there
is no contradiction or discrepancy therein irspite of lengthy cross
examination to both these witnesses. Contradictions noted by the Courts
below are only with regard to getting copies of the revenue record by the
petitioner, after performance of talab-e-Muivathibat. Statements of PW. 1
and 2 narrating differently circumstances taking place after performance of
first talab, do not wipe of their statements whereby they had consistently
deposed corroborating the assertion in the plaint. At the same time these
alleged discrepancies do not reflect on truthfulness of the witness who have
no personal interest in the land in dispute and are not shown to be inimical
to the respondent. The statements of the witnesses were recorded after lapse
Df about 7 months of the sale and such minor discrepancies are bound to
occur by lapse of time. Both the witnesses PWs 1 and 2 are consistent
regarding,time, place, day, and manner of conveying information of sale and
manner or performance of talab-e-muwathibat by the petitioner. Sale was
jffected through a registered sale-deed dated 24.12.1992 and the petitioner
lad asserted in his plaint that no notice in terms of Section 31 of the Punjab
i're-emption Act, 1991, was given by the sub registrar concerned. The
cnowledge of this sale has been asserted to have gained by the petitioner on
J4.12.1992 just after four days which does not appear to be un-natural and
>eing prompt, there is hardly anything on the file to doubt it. I accordingly
ind that the petitioner has substantially performed
talabs required by
section 13 of thePunjab
pre-emption Act, 1991 and has proved those by
:vidence on the file.
for the parties and have examined the record appended herewith. The
petitioner no doubt has a superior pre-emptive rights and has so been held
by both the Courts below. He in order to pre-empt the sale in favour of the
respondent, asserted in para 4 of the plaint that he came to know on
24.12.1992 of the sale in dispute and immediately on gaining knowledge,
made a jumping demand that he will pre-empt it as his right superior, to
that of the respondent and in this manner performed talab-e-muwathibat
and thereafter made talab-e-Ishhad by sending a notice attested by two
truthful witnesses under a registered postal cover and in this view of the
matter performed talab-e-Ishhad. These assertions in the plaints were
proved through his own statement as PW.l and those of PWs. 2 and 3. PW. 2
is the person who informed the petitioner regarding, the sale in dispute and
he is also a witness of notice of talab-e-Ishhad (Ex. P.I). Talab-e-muwathibat
was performed by the petitioner in his presence. PW. 3 is the second
witnesses of notice of talab-e-Ishhad (Ex. P.I) Statements of PW.l and 2 duly
proved performance of talab-e-muwathibat as asserted in the plaint and there
is no contradiction or discrepancy therein irspite of lengthy cross
examination to both these witnesses. Contradictions noted by the Courts
below are only with regard to getting copies of the revenue record by the
petitioner, after performance of talab-e-Muivathibat. Statements of PW. 1
and 2 narrating differently circumstances taking place after performance of
first talab, do not wipe of their statements whereby they had consistently
deposed corroborating the assertion in the plaint. At the same time these
alleged discrepancies do not reflect on truthfulness of the witness who have
no personal interest in the land in dispute and are not shown to be inimical
to the respondent. The statements of the witnesses were recorded after lapse
Df about 7 months of the sale and such minor discrepancies are bound to
occur by lapse of time. Both the witnesses PWs 1 and 2 are consistent
regarding,time, place, day, and manner of conveying information of sale and
manner or performance of talab-e-muwathibat by the petitioner. Sale was
jffected through a registered sale-deed dated 24.12.1992 and the petitioner
lad asserted in his plaint that no notice in terms of Section 31 of the Punjab
i're-emption Act, 1991, was given by the sub registrar concerned. The
cnowledge of this sale has been asserted to have gained by the petitioner on
J4.12.1992 just after four days which does not appear to be un-natural and
>eing prompt, there is hardly anything on the file to doubt it. I accordingly
section 13 of the
:vidence on the file.
7. Judgments in the case of Abdul Qayyum (supra) relied
by the
sarned counsel for the respondents goes to support the view that by
larration of performance of talabs in the plaint by the pre-emptor and proof those by producing witnesses is substantial compliance of the law. The etitioner had disclosed all the material facts in the plaint and thereafter in is own statement, corroborated by the other witnesses, as such case of the espondent is not advance by reliance on this judgment of the Hon'ble upreme Court of Pakistan. In the case of Muhammad Ramzan (supra), vriowledge of the sale was asserted after a month but the Hon'ble Supreme ourt took the view that the plaintiff was deemed to have acquired nowledge of attestation of mutation of sale within two weeks. Relying on lie provisions of Section 31 of Act of 1991. In the instant case the petitioner ad asserted that notice in terms of pre-emption law, was not given and at he same time, proved knowledge of sale through registered sale-deed, just i'ter four days, is so prompt that the precedent case does not support the ubmissions of the respondent's counsel. Similarly judgment in the case of \nwar Ali (supra) lays down that pre-emptor has to make reference to his Irst demand by way of talab-e-muwathibat at the time of talab-e-Ishhad. The petitioner did mentioned in his notice Ex. P.I. that he performed talab-e-muwathibat in the presence of PW. 2 and nothing more was required to be done by him under law.
sarned counsel for the respondents goes to support the view that by
larration of performance of talabs in the plaint by the pre-emptor and proof those by producing witnesses is substantial compliance of the law. The etitioner had disclosed all the material facts in the plaint and thereafter in is own statement, corroborated by the other witnesses, as such case of the espondent is not advance by reliance on this judgment of the Hon'ble upreme Court of Pakistan. In the case of Muhammad Ramzan (supra), vriowledge of the sale was asserted after a month but the Hon'ble Supreme ourt took the view that the plaintiff was deemed to have acquired nowledge of attestation of mutation of sale within two weeks. Relying on lie provisions of Section 31 of Act of 1991. In the instant case the petitioner ad asserted that notice in terms of pre-emption law, was not given and at he same time, proved knowledge of sale through registered sale-deed, just i'ter four days, is so prompt that the precedent case does not support the ubmissions of the respondent's counsel. Similarly judgment in the case of \nwar Ali (supra) lays down that pre-emptor has to make reference to his Irst demand by way of talab-e-muwathibat at the time of talab-e-Ishhad. The petitioner did mentioned in his notice Ex. P.I. that he performed talab-e-muwathibat in the presence of PW. 2 and nothing more was required to be done by him under law.
8.
PW. 2 is not only a informer giving information of sale to
the
petitioner but is also a witness of talab-e-muwathibat and has also signed the
notice of talab-e-Ishhad, as its marginal witness. Other marginal witness of
the notice was not present at the time of talab-e-muwathibat, as such was not
sposed to depose anything regarding it. Law does not require that talab-e-
muwathibat be made in the presence of two witnesses, who should also sign
the notice of talab-e-Ishhad, hence, I do find any substance in the argument
of the learned counsel for the respondent that suit of the petitioner should be
dismissed on the ground that the PW. 3, second witness of notice, was not
present at the time of performance of talab-e-muwathibat.
petitioner but is also a witness of talab-e-muwathibat and has also signed the
notice of talab-e-Ishhad, as its marginal witness. Other marginal witness of
the notice was not present at the time of talab-e-muwathibat, as such was not
sposed to depose anything regarding it. Law does not require that talab-e-
muwathibat be made in the presence of two witnesses, who should also sign
the notice of talab-e-Ishhad, hence, I do find any substance in the argument
of the learned counsel for the respondent that suit of the petitioner should be
dismissed on the ground that the PW. 3, second witness of notice, was not
present at the time of performance of talab-e-muwathibat.
9.
In view of the authoritative judgment of Honourable
Supreme
Court in the case of Abdul Malik versus Muhammad Latif (1999 SCMR 717),
Muhammad Gul vs. Muhammad Afzal (1999 SCMR 724), wherein it was
held that pre-emptor who had made talab-e-muwathibat and had dispatched
notice of talab-e-Ishhad within the specified time, sufficiently complied with
the provisions of Section 13(3) of the Punjab Pre-emption Act 1991, I
respectfully following this dictum, hold that the petitioner had performed all
the three talabs in accordance with law and as such his suit could not have
been dismissed but both the Courts below relying on minor discrepancies
which do not dispel the impact of evidence of the PWs, incorrectly non suited
him. Hence their judgments and decrees, run counter to the evidence on the
file, consequently, cannot be maintained, being tainted with material
illegality and irregularity.
Court in the case of Abdul Malik versus Muhammad Latif (1999 SCMR 717),
Muhammad Gul vs. Muhammad Afzal (1999 SCMR 724), wherein it was
held that pre-emptor who had made talab-e-muwathibat and had dispatched
notice of talab-e-Ishhad within the specified time, sufficiently complied with
the provisions of Section 13(3) of the Punjab Pre-emption Act 1991, I
respectfully following this dictum, hold that the petitioner had performed all
the three talabs in accordance with law and as such his suit could not have
been dismissed but both the Courts below relying on minor discrepancies
which do not dispel the impact of evidence of the PWs, incorrectly non suited
him. Hence their judgments and decrees, run counter to the evidence on the
file, consequently, cannot be maintained, being tainted with material
illegality and irregularity.
10. Sale
deed, which shows that respondent, paid entire sale price in presence of the
sub registrar, at the time of its registration. Sub registrar has certified this fact in his order attesting the sale-deed. A presumption of correctness is attached to this endorsement, having been inscribed during discharge of official/statutory duties. This Court has already decided that a presumption of correctness is attached to such endorsements, in the cases of (Pirla etc. Versus Noora etc. (PLD 1976 Lahore 6), and Malik Wahid Bakhsh versus Ch. Muhammad Shaft (PLD 1976 Lahore 1069). Petitioner has asserted in his plaint that sale was, in fact, made for Rs. 1.00 Lac but he has neither produced any positive evidence in support of his this assertion nor brought any thing on the file to show that endorsement by the sub registrar over Ex. D.I was incorrect. The natural result is that property in question is proved to have been sold for Rs. 1,75,000/- actually fixed and paid to the vendor and similar findings of the Courts below on this point, are correct.
deed, which shows that respondent, paid entire sale price in presence of the
sub registrar, at the time of its registration. Sub registrar has certified this fact in his order attesting the sale-deed. A presumption of correctness is attached to this endorsement, having been inscribed during discharge of official/statutory duties. This Court has already decided that a presumption of correctness is attached to such endorsements, in the cases of (Pirla etc. Versus Noora etc. (PLD 1976 Lahore 6), and Malik Wahid Bakhsh versus Ch. Muhammad Shaft (PLD 1976 Lahore 1069). Petitioner has asserted in his plaint that sale was, in fact, made for Rs. 1.00 Lac but he has neither produced any positive evidence in support of his this assertion nor brought any thing on the file to show that endorsement by the sub registrar over Ex. D.I was incorrect. The natural result is that property in question is proved to have been sold for Rs. 1,75,000/- actually fixed and paid to the vendor and similar findings of the Courts below on this point, are correct.
11. Respondent/vendee claimed in his written statement
that he
besides payment of sale price of Rs. 1,75,000/- incurred expenses on the sale-
deed which in case suit of the petitioner is decreed, have to be paid to him.
He while appearing as his own witness as DW. 1 stated that he incurred an
amount of Rs. 25,000/- as expenses for execution and completion of the sale-
deed. His statement to this extent was not cross-examined by the petitioner
which means that petitioner has admitted this claim of the respondent. An
uncrossed portion of witness was held to have been admitted in the case of
Mst. Nur Jehan Begum through legal representatives versus Syed Mujtaba
Ah Naqvi (1991 SCMR 2300) and Shah Muhammad and another versus
Hafiza Begum and 2 others (2000 MLD 404). Even otherwise claim of the
respondent of Rs. 25,000/- on account of incidental charges/expenses, does
not appear to the exorbitant because original sale-deed Ex. D.I shows that
stamp papers of the value of Rs. 10,500/- were purchased for inscribing it.
Respondent must have paid some thing to its scribe and towards other taxes,
like District Council Fee etc. Pre-emption being a right of substitution and as
such, pre-emptor must bear all those expenses, which were incurred by
vendee. It is accordingly held that petitioner will pay an amount of
Rs. 25,000/- as incidental charges, in addition to the sale price.
besides payment of sale price of Rs. 1,75,000/- incurred expenses on the sale-
deed which in case suit of the petitioner is decreed, have to be paid to him.
He while appearing as his own witness as DW. 1 stated that he incurred an
amount of Rs. 25,000/- as expenses for execution and completion of the sale-
deed. His statement to this extent was not cross-examined by the petitioner
which means that petitioner has admitted this claim of the respondent. An
uncrossed portion of witness was held to have been admitted in the case of
Mst. Nur Jehan Begum through legal representatives versus Syed Mujtaba
Ah Naqvi (1991 SCMR 2300) and Shah Muhammad and another versus
Hafiza Begum and 2 others (2000 MLD 404). Even otherwise claim of the
respondent of Rs. 25,000/- on account of incidental charges/expenses, does
not appear to the exorbitant because original sale-deed Ex. D.I shows that
stamp papers of the value of Rs. 10,500/- were purchased for inscribing it.
Respondent must have paid some thing to its scribe and towards other taxes,
like District Council Fee etc. Pre-emption being a right of substitution and as
such, pre-emptor must bear all those expenses, which were incurred by
vendee. It is accordingly held that petitioner will pay an amount of
Rs. 25,000/- as incidental charges, in addition to the sale price.
12. For what has been discussed above this civil
revision succeeds,
both the judgments and decrees dated 18.4.1994 and 12.3.1995 passed by the
learned Civil Judge and the learned Additional District Judge Daska District
Sialkot are set aside and suit filed by the petitioner, is decreed subject to
deposit by him in the trial Court an amount of Rs. 1,75,000/- plus
Rs. 25,000/- (incidental charges) i.e. (Rs. 2,00,000/- (Two Lac) after
deducting one third, if any, already deposited, on or before 25.2.2004 failing
which his suit shall stand dismissed. This civil revision is accepted. There
will be no order as to costs.
both the judgments and decrees dated 18.4.1994 and 12.3.1995 passed by the
learned Civil Judge and the learned Additional District Judge Daska District
Sialkot are set aside and suit filed by the petitioner, is decreed subject to
deposit by him in the trial Court an amount of Rs. 1,75,000/- plus
Rs. 25,000/- (incidental charges) i.e. (Rs. 2,00,000/- (Two Lac) after
deducting one third, if any, already deposited, on or before 25.2.2004 failing
which his suit shall stand dismissed. This civil revision is accepted. There
will be no order as to costs.
(B.T.) Petition accepted.
No comments:
Post a Comment