MUHAMMAD ASAM SHAH vs AMANULLAH KHAN

' SARDAR MUHAMMAD ASLAM, J.---The plaintiff filed a suit for possession through pre-emption in respect of the land fully detailed and described in the plaint. The respondent contested the suit by filing written statement. Issues were framed. Both the parties produced their respective evidence.

The learned trial Court decreed the suit of the petitioner. An appeal was preferred by the respondent which was allowed on the ground that the petitioner/ pre-emptor has failed to perform Talb-iMuwathibat. Resultantly, the suit was dismissed. The civil revision calls in question the judgment and decree of the learned Additional District Judge dated 24-3-2000.

2. The learned counsel for the petitioner argued that the judgment and decree of the learned Additional District Judge is based on supposition.

3. On the other hand, the learned counsel for the respondent controverted the argument and supported the judgment of the learned appellate Court.

4. P.W.4 Muhammad Bakhsh stated that on 28-11-1994, the plaintiff was informed in his presence by Muhammad Rafique Shah about the sale of the suit-land. He performed Talb-i-Muwathibat then and there. The plaintiff appeared as P.W.2 and stated that as soon as he was informed by his brother Muhammad Rafique Shah of the sale in dispute, he immediately declared his intention to file a suit. Amir Abdullah Shah appeared as P.W.3 and also stated of performance of Talb-i- Muwathibat by the petitioner. Aman Ullah appeared as D.W.1. He stated that the plaintiff had the knowledge of the transaction the day it took place.

5. The learned Additional District Judge non-suited the petitioner on the ground firstly that his land is adjacent to the suit-land, therefore, he must have acquired the knowledge of the disputed sale; secondly that the P. Ws. Admitted transfer of possession on the day of sale, thirdly that the vendor is real nephew of the petitioner and fourthly that the informer has not been produced.

6. The reasoning of the learned appellate Court lacks support from the record. It was presumed by the learned appellate Court that the pre-emptor must have acquired knowledge of the sale because the vendor was his real nephew and that the disputed land is adjacent to his land. The presumption cannot be drawn legally. There is no evidence to this effect. Evidence of relationship between the preemptor and his real nephew whether cordial or otherwise is also no forthcoming.

There is no evidence of petitioner's land being adjacent to that of the vendor. Even if, it be no legitimate inference can be drawn that the petitioner acquired notice of the sale, on account of his land being adjacent. As to transfer of the 'possession to the vendee, P.W.1 in his cross-examination answered the suggestion in affirmative that the vendee/defendant has taken the possession the day he purchased the land. When he purchased the land is to be read with reference to his statement in examination in-chief, where it was stated that Muhammad Rafiq informed them of the sale of the land. He was not suggested even as to when, actually, the sale had taken place. The non-production of the informer Muhammad Rafique Shah might have been fatal to the pre- emptor in case of absence of corroboration. The statement of the pre-emptor was corroborated by P.W.1 and P.W.3, the sons of the pre-emptor. Both the witnesses were present when the information of sale was given to the pre-emptor/plaintiff. They corroborated the statement of the petitioner on all material particular. The judgment of the learned appellate Court is based on supposition and is thus, not sustainable in the eyes of law. Resultantly, this civil revision is allowed, the impugned judgment of the learned Additional District Judge is set aside and that of learned trial Court is 113 restored.