MANZOOR AHMED and others vs AURANGZEB

ORDER

' MIAN HAMID FAROOQ, J.---Petitioners seek leave to appeal against judgment dated 15-10-2004, whereby the learned Lahore High Court at Lahore, dismissed their revision petition (Civil Revision No,2037 of 2002).

2. Respondent/plaintiff filed suit for possession through preemption thereby pre-empting the sale effected through Mutation No,424 dated 29-8-1995 favouring the petitioners qua the suit-land thereby claiming that they have superior rights and that they fulfilled the requirements of requisite Talbs. The petitioners resisted the suit, controverted the contents of the plaint and specifically denied performance of Talbs by the respondent. The learned trial Court framed necessary issues, including the one regarding performance of Talbs according to law, recorded evidence of the parties and decreed respondent's suit, vide judgment and degree dated 20-7-2000. Petitioners' appeal and then revision petition were dismissed by the learned Additional District Judge and the learned Lahore High Court at Lahore, vide judgments dated 9-10-2001 and 15-10-2004, respectively, hence the present petition.

3. Learned counsel for the petitioners submitted that the plaintiff failed to perform the requisite Talbs and all the Courts erroneously decided issue No,3 regarding performance of Talbs.

Conversely, learned counsel for the respondent supported the impugned judgment and submitted that all the three Courts decided the said issue in favour of the respondent.

4. We have heard learned counsel for the parties and examined the available record. The respondent in para 4 of the plaint pleaded that he acquired knowledge about the disputed sale on 28-8-1995 through Bashir Ahmed son of Salehoon, thereupon he announced in the same meeting that he will pre-empt the sale and thus he performed the requirement of Talb-i-Muwathibat.

However, he while appearing as P.W.1 in his examination-in-chief stated that on 5-9-1995, he went to Muhammad Bashir Lakha, Patwari for collecting Jamabandi and the Patwari told him that the disputed land was purchased by the petitioners and thereupon he announced that he will pre- empt the sale. If para 4 of the plaint is read in juxtaposition with the statement of respondent, it leads to an irresistible conclusion that his stance was contradictory, inasmuch as, in the plaint it was alleged that he performed Talb-i-Muwathibat on 28-8-1995, in presence of Bashir Ahmed, but while appearing as P.W.1 he stated that Talb-i-Muwathibat was performed on 5-9-1995 in presence of Muhammad Bashir Lakha, Patwari. The said two statements were irreconcilable, as two different dates for performance of Talbs were pleaded by the respondent. Issue No,3 could not have been decided in favour of the respondent in view of his contradictory stance. It appeared that none of the Courts adverted to this material and crucial aspect of the case, which could only decide fate of the suit. The learned High Court only relied upon the statement of P.W.1 and completely ignored the stance of the respondent initially taken in the plaint. Learned counsel for the petitioners, when confronted with para 4 of the plaint and statement of P.W.1, has nothing to say much. In view whereof, it is evident that all the Courts below decided the matter in complete oblivion of the record of the case and the learned High Court mechanically affirmed the findings of the two Courts on the ground that those are concurrent. All the Courts completely misread the record of the case and thus we are persuaded to reverse the judgments and decrees of all the three Courts.

5. For the foregoing reasons, the present petition is converted into appeal, allowed and judgments and decrees passed by all the courts, including the learned High Court, are set aside. Resultantly, respondent's suit stands dismissed with no order as to costs.