ALTAF HUSSAIN Versus FIDA HUSSAIN SHAH

JUGMENT

This Civil Revision No.30 of 1999 arises out of the concurrent judgments, dated 4‑6‑1999 passed by the learned Civil Judge‑IV, D. I. Khan and dated 9‑2‑1999 of the learned District Judge, D.I. Khan, respectively, culminating into the dismissal of the suit of the petitioners.

2. The facts forming the background of the instant revision are that on 31‑1‑1994 Mutation No.407 was attested whereby a land measuring 7 Kanalc was transferred in the name of respondent, Fida Hussain Shah, by way of sale for a sum of Rs.28,000. This sale transaction was challenged by the petitioner by way of filing a suit seeking to enforce his superior right of pre‑emption on the grounds of Shaft Sharik, Shafi Khalit and Shafi Jar. The suit was filed on 31‑5‑1994 which was resisted by the respondent raising various questions of law and facts in his defence and on the assessment of pleading of the parties, the learned trial Court formulated the following issues:‑‑

(1) Whether the plaintiff has a cause of action and locus standi?

(2) Whether the plaintiff has fulfilled the requirements of Talabs properly?

(3) Whether the suit is within tithe?

(4) Whether the plaintiff has estopped to sue?

(5) Whether court‑fee has correctly been assessed if not its effect?

(6) Whether an amount of Rs.28,000 has correctly been fixed and paid in good faith?

(7) Whether the bargain has been effected with the consent of plaintiff as such has waived his right?

(8) Market value? ‑

(9) Relief?

3. Both the parties led their evidence in support of their contentions. The learned trial Court on the basis of the Revenue Record produced by the Patwari Halqa admitted the petitioner as a co‑owner in the Khata number forming the subject‑matter of the suit, whereas the respondent was not equipped with any such qualification.

4. The suit of the plaintiff/petitioner was, however, dismissed mainly on the ground of his failure to establish the factum of Talb‑e‑Muwathibat in accordance with law. In appeal, the learned District Judge concurred with the trial Court on the question of Talab‑e‑Muwathibat, who was influenced by the fact that the petitioner in para.3 of his plaint has alleged that he got knowledge of the transaction on 23‑4‑1994 and immediately made Talab‑e Muwathibat but he has not mentioned the names of the persons before whom he made the said Talab. His appeal was, therefore, dismissed on 9‑2‑1999 and in this scenario, the present revision petition is filed.

5. The learned counsel for the petitioner submits that the petitioner had made all the Talabs in accordance with law and that the minor discrepancies occurred in the evidence of the petitioner should not be given weight to deprive him of his valuable right. He syne submitted that the omission to mention in the pleading the time, place and name of the first informer upon whose information the making of Talb‑e‑Muwathibat rests, is not necessary, as the pleading is not required in law to mention the gist of the evidence likely to be produced at the trial. He further submitted that the mission of the name of P.W. Ghulam Baqir being the first informer in the notice of Talb‑e‑Muwathibat is also inconsequential upon the rights of the plaintiff and, as such, both the Courts below have fallen into an error of the nature of misreading of the evidence coupled with the misconception of law, therefore, in the circumstances dismissal of the plaintiff/petitioner's suit was unwarranted. In this respect, reliance was placed on the cases reported as 1999 SCMR 958, 1997 MLD 3062 (Peshawar) and PLD 1997 SC 883.

6. On the contrary, the learned counsel for the respondent argued that the plaintiff has failed to mention in his plaint the name, place and Time of P.W. Ghulam Baqir with reference of his making Talb‑e‑Muwathibat. Moreover, the notice of Talb‑e‑Ishhad is also materially defective, as it does not contain the name of P.W. Ghulam Baqir, who had allegedly given the first information to the plaintiff and on receipt of such information he claims to have made Talb‑e‑Muwathibat. This omission on the part of the plaintiff, according to the learned counsel, has far reaching effect upon the decision of the case, as failure to establish the making of Talb‑e‑Muwathibat would extinguish the right of the plaintiff in terms of section 13 of the N.W.F.P. Pre‑emption Act (Act X of 1987). While referring to the evidence of the plaintiff, he took me to his statement wherein in the opening sentence of his statement has stated that he was sitting in his Chowk (Baittock) at about "Peshin time", while P. Ws. Gul Sher Khan and Altaf were also sitting with him when in the meanwhile Ghulam Baqir P.W. came and told him that Hizar Hayat has sold seven Kanals of land to Fida Hussain Shah and on hearing this, he declared to exercise his right of pre‑emption. In order to convey the true import of his statement, the Urdu version is reproduced as follows:‑‑

7. From such a statement of the plaintiff, it is abundantly clear that according to the plaintiff, at the time of receiving information from the P.W. Ghulam Baqir, Altaf and Gulsher both were present. This positive assertion of the plaintiff is negated by the evidence of Altaf Hussain (P.W.6), who in his Court statement has started thus:‑‑

Both these statements are contradictory to each other on the point of giving information by P.W. Ghulam Baqir to the plaintiff. He, therefore, argued that the plaintiff has miserably failed to establish the factum of making Talb e‑Muwathibat, which is a sine qua non for filing a suit of pre‑emption and, as such, according to the learned counsel, the two Courts below were correct in dismissing his suit.

8. I have heard the rival arguments of both the adversaries and have carefully, gone through the record of the case. So far as the first part of the arguments of the learned counsel for the respondent with regard to the omission of mentioning the name, place and time of the first informer in the plaint and the omission of the name of P.W. Ghulam Baqir (the first informer) in the notice of Talb‑e‑Ishhad is concerned, I have no inclination to accept the said contention, as on this point the law is now well‑settled with a particular reference to the judgment of the Honourable Supreme Court reported in 1995 SCMR 958. I am conscious of the fact that there is no need of giving a detailed narration of the evidence, which is likely to be produced by a party during recording of evidence. The mere mentioning of material facts in the pleading are sufficient regarding which the parties are required to produce their evidence at the trial stage. In the instant case, in paragraph No.3 of the plaint, the plaintiff has mentioned that he made Talb‑e Muwathibat soon after receiving information on 23‑4‑1994. Similarly, the omission to mention the name of Ghulam Baqir in the notice of Talb‑e‑ Ishhad would also be, in my opinion, of no significance and can very conveniently be ignored. It is, however, significant that distinction is to be drawn between the omission to mention the names of witnesses of Talb‑e Muwathibat in the plaint and the positive exclusion of any such witness by the witnesses of notice of Talb‑e‑Ishhad.

9. In all the civil matters governed by the provisions of Givil Procedure Code, the point on which the parties are at variance are reduced in the various issues, i.e. issue arises when a material proposition of fact or law is affirmed by‑one party and denied by the other. Thus, a contention raised by a party shall be proved by the evidence produced by such party and if the party on whom the onus of proof lies fails in proving his contention, then the issue is decided against it entailing its own consequences on the final decision of the case.

10. In the instant case, the plaintiff has positively affirmed in his plaint that he made Talb‑e‑Muwathibat soon after receipt of information. This assertion of the plaintiff was denied by the respondent in his written statement which resultantly reduced in issue No.2 as follows:‑‑

"Whether the plaintiff has fulfilled the requirements of Talbs properly?"

The formulation of this issue obviously means that both the parties were at variance on this material point of fact and, as such, the party alleging affirmatively that he made Talb‑e‑Muwathibat in accordance with the provisions of law was duty‑bound to have proved the same by producing the evidence of the quality and order required by law. It is also noteworthy that under. Order 18, Rule 2, C.P.C., the parties are required to prove the issues and not the pleadings generally. For the sake of convenience, the relevant portion of sub‑rule (2) of Order 18 (ibid) is reproduced below:‑‑

(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove,

(2) -------------------------------------------------------

(3) ...................................................................................

11. In the above sub‑rule, the words "and produce his evidence in support of the issues which he is bound to prove" are of very high significance. This clearly demonstrates that according to the statutory requirements, a party is bound to prove his contention by producing his evidence in support of the issue which is based on its affirmative claim.

12. In the above situation, it is left for me to look into the evidence in order to determine whether the plaintiff/petitioner has successfulll discharged his obligation of producing evidence in support of his contention qua the making of Talb‑e‑Muwathibat, which should have the sufficient force to induce faith in it. For this purpose, the statements of the plaintiff/petitioner, P.W. Ghulam Baqir and Altaf Hussain be put‑ in juxtaposition for comparative analysis. The plaintiff has categorically stated that he was sitting in his Chowk at about "Peshin time", Gul Sher and Altaf were also sitting with him when in the meanwhile P.W. Ghulam Baqir came who told' him that his maternal‑uncle Hizar Hayat has sold seven Kanals land to Fida Hussain Shah (respondent). He further stated that he immediately declared his intention regarding the exercise of his superior right of pre emption. This portion of his statement has already been incorporated in his Urdu version. It means that the plaintiff has positively asserted that at the time of receiving information from P.W. Ghulam Baqir, P.Ws. Altaf and Gulsher were also present, but P.W. Altaf Hussain has unequivocally stated in his examination‑in‑chief that he and Gulsher were sitting in the Baithock of the plaintiff and in the meanwhile, the plaintiff said that he will file a suit for pre‑emption against Fida Hussain, as he has purchased the land. In this part of the statement, he has omitted the presence of Ghulam Baqir as the person giving first information. This omission was, however, subsequently, confirmed in his cross‑examination, where he categorically mentioned as under: ‑‑

The acceptance of this suggestion put to the witness goes a long way to establish that P.W. Ghulam Baqir had not given information to the plaintiff m presence of Altaf Hussain and Gulsher. This expression of P. W . Altaf Hussain has a turning effect upon the claim of the plaintiff that he on receipt of information from Ghulam Baqir made Talb‑e‑Muwathibat in presence of Altaf Hussain and Gulsher. The admission on the part of Altaf Hussain has the effect that Talb‑e‑Muwathibat was not made by the plaintiff/petitioner as has been claimed by him. The assertion of the plaintiff with regard to the making of Talab‑e‑Muwathibat is dissolved by his own evidence in the form of statement of Altaf Hussain.

13. From the above situation, it appears that Talb‑e‑Muwathibat was not made by the plaintiff as is claimed by him and the P.W. Ghulam Baqir was at a latter stage managed to appear as a witness for establishing the making of Talb‑e‑Muwathibat. Such an appearance is supported by omitting the name of Ghulam Baqir in the plaint and then in the notice of Talb‑e‑Ishhad. Although these two omissions, as stated earlier, are not sufficient to defeat the right of the petitioner, but are supportive elements to the evidence of Altaf Hussain and, as such, I am clear in my mind that the plaintiff/petitioner has not been able to establish the factum of Talb‑e‑Muwathibat, which is a pre‑condition for filing a suit to enforce the right of pre‑emption. In this view of the matter, I hold that the impugned judgments of both the Courts G below are neither perverse nor illegal, as I have not sighted any disregard of the principles .of appreciation of evidence therein. Consequently, this revision petition is dismissed.

Q.M.H./M.A.K./479/P Revision dismissed.