PLJ 2024 Lahore (Note) 238
[Multan Bench, Multan]
Present: Ch. Muhammad Iqbal, J.
MUHAMMAD MURAD etc.--Petitioners
versus
MUHAMMAD MUMTAZ--Respondent
C.R. No. 145-D of 2012, heard on 5.12.2016.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----Ss. 9, 13 & 13(3)--Civil Procedure Code, (V of 1908), O.XX R. 5--Sale of property--Suit for possession through pre-emption--Decreed--Appeal--Dismissed--Mandatory requirement of suit for pre-emption were not fulfilled--Vendor was also sold land--Petitioners were not challenge earlier transaction through pre-emption suit--Postman was not produced--Service of petitioner was not proved--Challenge to--Mere oral assertion was not sufficient to rebut documentary evidence as well as oral evidence could not exclude documentary evidence--A document can be rebutted by document only--Vendor also sold out his land measuring 22-Acres to different people and in that respect Exh. D-1 was produced by petitioners and admittedly respondent had not challenged those transactions through pre-emption suit and it could safely be concluded that instant suit was not filed under bonafide need--Appellate Court had not decided appeal issue-wisely while setting aside judgment of trial Court--The respondent has not proved Talbs as requirement under Section 13(3) of Act, 1991 and also failed to establish on record that he was a truthful witness--Postman had also not been produced to prove service of petitioners, as such, impugned judgment & decree of appellate Court was based on misreading and non-reading of evidence and appellate Court had committed grave illegality and material irregularity while passing impugned judgment and decree which was not sustainable in eye of law and was liable to be set aside--Civil revision allowed. [Para 6, 7 & 8] A, B, C & D
PLD 2015 SC 69; 2011 SCMR 837; PLD 2000 Lahore 385;
2013 SCMR 866 & 2010 SCMR 1868 ref.
Mehr M. Haseeb Qadir, Advocate for Petitioners.
Sahibzada Mehboob Ali Khan, Advocate for Respondent.
Date of hearing: 5.12.2016.
Judgment
Through this civil revision, the petitioners have challenged the judgment & decree dated 01.12.2011 whereby learned Additional District Judge, Mailsi accepted the appeal filed by the respondent, set aside the judgment & decree dated 13.04.2010 passed by learned trial Court and decreed the suit for possession through pre-emption.
2. Brief facts of the case are that the respondent/plaintiff filed a suit for possession through pre-emption against the petitioners/defendants contending therein that Muhammad Irshad, vendor vide Mutation No. 1180 dated 16.12.2006 sold out the land measuring 04-Kanals situated in Mauza Aziz Kohm, Mailsi (fully described in the headnote of the plaint) to the petitioners/defendants against consideration of Rs. 1,50,000/- but ostensibly shown worth
Rs. 2,50,000/-. On 11.01.2007 at 08:00am, Muhammad Qamar, informer gave information regarding the sale of suit property in the presence of Muhammad Ashraf and plaintiff at his Dera, at once the respondent/ plaintiff announced that he would exercise his right of pre-emption over the suit property and on the next day, the plaintiff sent notices of Talb-i-Ishhad on the ground that he has a superior rights qua the petitioners/defendants and after refusal, the plaintiff filed instant suit. The petitioners/defendants appeared before learned trial Court, filed contesting written statement and contended that the respondent/ plaintiff has no cause of action; that no notice of Talb-i-Ishhad was ever received by them; that land was purchased through sale mutation against consideration of Rs. 2,50,000/- , Learned trial Court from the divergent pleadings of the parties after framing the issues and recording the evidence of both the parties vide judgment & decree dated 13.04.2010 dismissed the suit of the respondent/plaintiff. The respondent/plaintiff filed appeal before learned Additional District & Sessions Judge, Mailsi who accepted the said appeal vide judgment & decree dated 01.12.2011. Hence, this civil revision.
3. Learned counsel for the petitioners submits that the impugned judgment & decree of learned appellate Court is based on mis-reading and non-reading of evidence, against the record and facts of the case; that the respondent has not produced postman for the effective service of the petitioners; further submits that the respondent failed to prove that the suit land was purchased by the petitioners/defendants against consideration of Rs. 1,50,000/- whereas according to available record, sale Mutation No. 1180 dated 16.12.2006 was entered and sanctioned against consideration of Rs. 2,50,000/-. In this respect, Issue No. 4 was framed which was decided in favour of the petitioners/defendants; further submits that learned appellate Court while setting aside the judgment & decree of learned trial Court has not decided issue-wise appeal as required under Order XLI Rule 31, as such, same is liable to be set aside.
4. Learned counsel appearing on behalf of the respondent submits that the respondent/plaintiff proved Talbs as prescribed under the law; that learned appellate Court rightly passed the impugned judgment & decree and no illegality has been committed.
5. I have heard the arguments and gone through the record with the able assistance of learned counsels for the parties.
6. When Issue No. 4 confronted to learned counsel for the respondent/plaintiff and a question put to him whether any evidence brought on record by the respondent regarding the actual price as mentioned in the plaint i.e. Rs. 1,50,000/- , he admitted that in this respect no evidence has been brought on record and further admitted that the land was sold against consideration of Rs. 2,50,000/- through Mutation No. 1180 dated 16.12.2006 (Exh. D-2) which is an admitted document, as such, the respondent’s stance does not hold any ground and it can safely be said that the respondent is not truthful witness as he attempted to get undue advantage on the basis of a completely unsubstantiated statement which disentitles a Shafi to claim the right of pre-emption. The Hon’ble Supreme Court in the case of Subhanuddin & others vs. Pir Ghulam (PLD 2015 SC 69) has Held as under:
“10. There is another aspect of the case that requires consideration. The respondent had specifically contended (in his examination-in-chief) that the said land had been purchased for only twenty thousand rupees, but without disclosing the source of such information. If the reason for mentioning a lower price was to obtain an advantage the same was not permissible as it would contravene the provisions of shari’ah which have been made specifically applicable to pre-emption cases. Section 33 of the Act stipulates as under:-
“33. Matters ancillary or akin to the provisions of this Act:-
Masters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shariah.”
11. Shari’ah requires honesty and truthfulness in one’s dealing and false statements made to obtain an advantage is an anathema to Almighty Allah: “0. You who believe! Be afraid of Allah, and be with those who are true” (Surah 9.At-Taubah, verse 119); “And be not like her who undoes the thread which she has spun after it has become strong, by taking your oaths a means of deception amongst yourselves” (Surah 16, An-Nahl, verse 92); “And make not your oaths, a means of deception among yourselves, lest a foot may slip after being firmly planted, and you may have to taste the evil of having hindered from the Path of Allah and yours will be a great torment” (Surah 16. An-Nahl, verse 94). Therefore, when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee to claim pre-emption. This was not a case where the plaintiff had been unable to establish the price that he contended was paid for the said land, but instead a case where a plea which had no basis in fact was taken to gain an advantage.”
Even otherwise, against documentary evidence i.e. Mutation No. 1180 dated 16.12.2006 (Exh. D-2), the respondent failed to produce any cogent and trustworthy evidence to prove his version. It is settled principle of law that mere oral assertion is not sufficient to rebut the documentary evidence as well as the oral evidence cannot exclude the documentary evidence. A document can be rebutted by the document only. In this regard, reliance is placed on the cases of Abdul Ghani and others. vs. Mst. Yasmeen Khan and others (2011 SCMR 837) and Saleem Akhtar vs. Nisar Ahmad (PLD 2000 Lahore 385).
7. So far as Issue No. 5 in respect of Talbs is concerned, the onus was upon the respondent/plaintiff. To prove this issue, the respondent produced Imran Hussain, Clerk of Muhammad Aslam Khan Sagu, Advocate as PW-6 who deposed that notices (Exh. P-2) were written by him and he identified the same. Muhammad Qamar (informer) appeared as PW-2 and Muhammad Ashraf (witness) appeared as PW-3 who supported the version of the plaintiff. Muhammad Suleman, Postmaster appeared as PW-4 and stated that registry Nos.565 to 572 on the address of the defendants were sent on 15.01.2007. Ali Muhammad, Postmaster appeared as PW-5 stated that registry Nos.565 to 572 were delivered by the postmaster namely Sarfraz Ahmed to the defendants. Ali Muhammad further deposed as under:-
مدعاعلیہم کے نام دیہاتی چٹھی رساں سرفراز احمد نے تقسیم کیا ہے جن پر مدعا علیہم نے وصولی کے دستخط و انگوٹھا جات لگائے ہوئے ہیں۔
In cross-examination, he admitted as under:
میں پوسٹ مین نہ ہوں۔ میں پوسٹ ماسٹر ہوں۔ پوسٹ مین کی بچی فوت ہو گئی ہے اس لئے میں شہادت دینے آیا ہوں۔ یہ درست ہے کہ میں نے کوئی انگوٹھاوغیرہ نہ لگوایا تھا۔۔۔۔ یہ درست ہے کہ عدالت کی طرف سے جو سمن بنام گواہ گیا ہے وہ سرفراز احمد پوسٹ مین کا ہے جس پر میں نے تعمیل کی ہے ۔ اور جس پر سرفراز پوسٹ مین نے اپنے دستخط بغرض تعمیل کئے ہیں۔ جس کی بچی فوت ہو گئی ہے ۔ جس وجہ سے میں شہادت دینے آیا ہوں میں عدالت کی طرف سے کسی تعمیل پر شہادت دینے نہ آیا ہوں نہ ہی میں گواہ ہوں جو تعمیل ہوئی ہے درست ہوئی ہے کیونکہ میرا عملہ جو تعمیل کرواتا ہے وہ درست ہوتی ہے ۔
From the perusal of the evidence brought on record by the respondent/ plaintiff, admittedly the postmaster was not produced by him to prove the service of notice of Talb-i-Ishhad, as such, the respondent has failed to prove the service of notice of Talb-i-Ishhad which is mandatory requirement under Section 13 (3) of the Punjab Pre-Emption Act, 1991, therefore, in the absence of the proof of Talb-i-Ishhad, the respondent/plaintif miserably failed to fulfill the mandatory requirement of suit for pre-emption. Reliance is placed on the case of Allah Ditta through. L.Rs and others Vs Muhammad Anar. (2013 SCMR 866) which is as under:
“We have heard learned counsel for the parties and find vital discrepancy in the statements of P.W.1, P.W.2 and P.W.3 particularly, P.W.1 and P.W.2. P.W.2 stated that the disclosure of the sale of suit land was made to them while the plaintiff was sitting inside the shop of Aziz, whereas the informer who is the son of the pre-emptor, P.W.3 Muhammad Rafique, has contradicted the above and in unequivocal, clear and unambiguous terms stated that they were sitting outside the shop. This was a material discrepancy but the learned Appellate Court had failed to notice the same and it has also been overlooked by the learned Revisional Court. As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent’s side that the attorney of the petitioner while appearing as D.W.I has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-1shhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant’s attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two Courts below.”
Furthermore, Muhammad Irshad (vendor) also sold out
his land measuring 22-Acres to different people and in this respect Exh. D-1 was produced by the petitioners/defendants and admittedly the respondent has not challenged those transactions through pre-emption suit and it can safely be concluded that the instant suit is not filed under bonafide need. Had the plaintiff actual in acute need of the sold land he would have definitely challenged the subsequent sale transaction.
Even otherwise, from the perusal of record/impugned judgment, it reveals that learned appellate Court has not decided the appeal issue-wisely while setting aside the judgment of learned trial Court as under Order XX Rule 5 CPC learned appellate Court was under obligation to decide the appeal issue-wise if its conclusion/findings differe to that of the learned trial Court but in this case while rendering the impugned judgment learned appellate Court has not decided the appeal as warranted under the law and as per dictum laid down by the Hon’ble Supreme Court of Pakistan in a case reported as Muhammad Iftikhar vs. Nazakat Ali (2010 SCMR 1868).
8. The learned appellate Court while passing the impugned judgment has not considered the oral as well as documentary evidence. The respondent has not proved Talbs as requirement under Section 13(3) of the Punjab Pre-emption Act, 1991 and also failed to establish on record that he is a truthful witness. Postman has also not been produced to prove the service of the petitioners, as such, the impugned judgment & decree of the learned appellate Court is based on misreading and non-reading of evidence and the learned appellate Court has committed grave illegality and material irregularity while passing the impugned judgment and decree which is not sustainable in the eye of law and is liable to be set aside.
9. In view of above, this civil revision is allowed. The impugned judgment & decree dated 01.12.2011 passed by learned Additional District Judge, Mailsi is hereby set aside and the judgment & decree dated 13.04.2010 passed by learned trial Court is hereby restored, resultantly, suit filed by the respondent /plaintiff is hereby dismissed. No order as to cost.
(Y.A.) Civil revision allowed
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