ATA ULLAH Versus ALI MUHAMMAD

SYED HAMID ALI SHAH, J. ---Brief facts giving rise to this petition are that the respondent filed a suit for pre-emption against the petitioner which was dismissed by learned trial Court, Hafizabad, vide judgment and decree dated 3-3-2006 and the appeal against the dismissal of the suit was accepted by learned Additional District Judge, Hafizabad vide judgment and decree dated 9-6-2006, hence this petition.

2. The suit-land measuring 4 Kanals, 9 Marlas in village Kalian Wala was sold to the petitioner Ata Ullah through Mutation No.1571, dated 29-1-2003 (Exh.P/8). The respondent asserted in the plaint that on 1-2-2003. while sitting with Asghar Ali . (P.W.6), Nawab (P.W.5) told him about the sale of the suit-land, he announced promptly about exercising of his right of pre-emption. He performed Talb-i-Muwathibat and dispatched a notice on 6-2-2003. The respondent produced four witnesses and in his documentary evidence, produced Exh.P/1 to Exh.P/8. The petitioner, on the other hand, produced three witnesses and as documentary evidence, produced Exh.D/1 and Exh.D/2.

3. Learned counsel for the petitioner has contended that P.W.6 has stated that Nawab (P.W.5) informed about the sale in his presence. P.W.6 who allegedly informed about the sale, belonged to the other village, has admitted that the notice was given on 2-2-.2003 while it is the requirement of law that jumping demand is to be made soon on having the knowledge of the same. Learned counsel has further submitted that learned appellate Court has based it's conclusion on the assumption that the contents of para.2 of the plaint qua the performance of Talb, had not been denied in the written statement. Learned counsel has submitted further that observation of learned counsel is factually incorrect and contents of para.2 of the plaint were controverted in para.2 of the written statement. It was then contended that the contradictions among the witnesses of the respondent were material but learned appellate Court has taken them as minor discrepancies. Learned counsel has referred to the statement of the respondent/P.W.4, who stated that Asghar Ali came to him from Faisalabad, one day earlier, when notice was served, both of them (Asghar Ali and P.W.4) have not stayed with the vendee. P.W.6 (Asghar Ali), on the other hand, has stated that they reached the village on the day when this event (information about sale) took place. He stated further that they came, a day before first of February and stayed with the vendee/respondent No.l. Learned counsel has then submitted that the date in the notice has been changed through cutting and 6th has been incorporated instead of 1st i.e. 1-2-2003. Learned counsel while analyzing the statement of D.W.3, submitted that the witness has stated that he visited the plaintiff, informed about the sale of land, who had knowledge of the sale and refused to purchase the same as he had no funds in his hands at that point of time. While referring to the above statements of the witnesses, learned counsel has submitted that statements of the witnesses reflect that Talbs were not performed immediately on having the knowledge of the sale. It was next contended that the P.Ws. are at variance with regard to the time and place of performance of Talbs. Learned counsel has referred to the cases of "Haji Muhammad Saleem v. Khuda Bakhsh" (PLD 2003 SC 315), "Muhammad Siddique v. Muhammad Sharif and others" (2005 SCMR 1231) to contend that right of pre-emption cannot be claimed without fulfilment of the requirement of Talbs. Learned counsel has also placed reliance on the eases of "Mian Iqbal Mahmood Banday v. Muhammad Sadiq", (PLD 1995 SC 351), "-Mst. Zargoon and others v. Mst. Shadana and others" (2002 CLC 1539), "Malik Nazir Ahmad through his legal heirs v. Muhammad Yar" (2004 SCMR 1377) and "Muhanunad Hussain v. Manzoor Hussain and others" (2004 SCMR 737) in support of his contentions.

4. Learned counsel for the respondent, on the other hand, has submitted that the impugned order of learned appellate Court, does not suffer from any misreading or non-reading of evidence. The petitioner has failed to point out any instance of wrong assumption of law. There is no discrepancy in the oral testimony of witnesses of the plaintiff. The contradictions are so minor and negligible that they do not merit any consideration. Respondent No.1 pleaded in it's plaint that at the time of Asar Wela (dusk) on 1-2-2003, while sitting in Haveli with Asghar Ali (P.W.5), one Nawab informed the plaintiff about the impugned sale. The plaintiff immediately announced about exercising his right of pre-emption. The same facts have been reiterated by P.Ws.5 and 6 and also the plaintiff (P.W.4) in their oral testimony. To prove Talb-i-Ishhad, the plaintiff got examined the marginal witnesses Nawab and Asghar Ali, Postmaster P.W.1, Muhammad Ejaz Hussain, Advocate (P.W.2), the scribe of notice and Record Keeper of the Post Office to prove Talb-i-Ishhad. Leaned counsel has referred to the statement of P.W.2 Muhammad Ejaz Hussain, Advocate, wherein he has admitted that the notice through registered post was not sent by him personally. This does not prove that no notice was sent because the evidence of the witnesses is to be read as a whole while reading the statement of P.W.2 as a whole, it becomes clear that the pre-emptor and two witnesses approached him in his office and on their instructions Exh.P.2 was drafted, read over to the plaintiff and the witnesses who after hearing the contents of the notice, signed the notice and fixed their thumb-marks thereon. The letter was dispatched through registered post on the same day. His statement proves the draft of the notice, awareness of the plaintiff and his two witnesses about the contents of notice and the issuance of notice. The dispatch of notice and it's service upon the petitioner, stands proved through evidence of P.W. who has stated that the registered letter was delivered by him in the normal course of his duties as a Postman, Record Keeper of the Post Office has produced Exh.P.3 postal receipt dated 6-2-2003. From the combined reading of the statements of the witnesses P.W. P.W.2 and P.W.3 notice of Talb-i-Ishhad stands proved. Learned counsel supported the observation of learned Appellate Court that para.2 of the plaint. is not denied by the' petitioner in his written statement and submitted that it is not contrary to the facts. The observation of learned Appellate Court is with regard to the non-denial of the performance of Talb-i-Muwathibat and not about para.2 of the plaint as a whole.

5. I have heard the learned counsel for the parties and perused the material available on the record.

6. I do not find any illegality in the impugned judgment of learned appellate , Court, where the Court has held that mere residence of the witnesses in another village or'their non-corroboration as to when they reached the village or where they stayed or how long was their stay in the village of the plaintiff is not material to dislodge the right of pre-emption. Minor non-corroboration among the witnesses in this regard is not material. Corroboration of the witnesses must be with regard to performance of Talbs with specific reference to date, time and place of performance of Talbs. The Court has rightly held that statement of the witness is to be taken as a whole and not in piecemeal with special reference to the performance of Talbs. The witness who appears in the witness box, after lapse of considerable time cannot memorize every minute detail like tape recorder and it is not expected from such witness to remember each and every detail. There is no material contradiction among the witnesses with regard to performance of Talbs and conclusion of learned appellate Court in this respect, does not call for any interference.

Learned appellate Court was right in it's observation that the plaintiff was not obliged to produce Ibrahim and Farzand in evidence, as informant of the impugned sale was Nawab, who appeared as a witness and supported the stance of the plaintiff. Learned appellate Court has thoroughly appraised the evidence of the parties and then reached the conclusion. The petitioner has failed_ to make out a case of interference, in the revisional jurisdiction. The impugned judgment of the lower appellate Court does not suffer from any illegality or legal infirmity, therefore, do not call for any interference.

For the foregoing, this revision petition has no force and is dismissed accordingly. Parties to bear their own costs.

S.A.K./A-92/L Revision dismissed.