SHAH ALAM KHAN Versus MALIK ZAMAN
MUHAMMAD YOUNIS THAHEEM, J.--- Through the instant revision petition, Shah Alam Khan, petitioner herein, has called in question the legality and propriety of judgment and decree dated 8/5/2012 of the learned District Judge Karak, whereby appeal of the respondent against the judgment and decree dated 9/2/2012 of the learned Senior Civil Judge Karak was accepted.
2. Facts of the case giving rise to filing of the instant revision petition are that Malik Zaman, plaintiff/respondent filed a suit for possession through pre-emption in respect of the land which is fully detailed in the plaint claiming superior rights of pre-emption on the basis of co-sharership, participation in immunities and appendages. The plaintiff claimed in the plaint that the suit land was actually acquired through mutation No.11488 attested on 25/1/2010 in lieu of Rs. 45,000/-but in order to defeat his pre-emptive rights, an inflated and exaggerated amount of Rs.1,08,000/- has been mentioned in the suit mutation.
3. The suit was hotly contested by the defendants who filed written statement and divergent pleadings of the parties gave rise to filing of eight issues including the relief. Thereafter, the parties produced such evidence which they wished to adduce and the learned trial Judge on scanning the same in the light of arguments of learned counsel for the parties, dismissed the suit vide judgment and decree dated 9/2/2012. Feeling aggrieved from the aforesaid judgment and decree, the plaintiff challenged the same through an appeal which was accepted by the learned Additional District Judge-I Karak and resultantly his suit was decreed. Hence the instant petition by the defendant/petitioner.
4. I have carefully gone through the record of the case and anxiously considered the arguments addressed at the bar by the learned counsel for the parties.
5. In order to prove the factum of Talb-e-Muwathibat, the plaintiff himself appeared as PW-2 before the court, wherein he narrated the same facts as mentioned in the plaint, but he produced the informer Sherin Zaman PW-3 and alleged witness Shafi Zaman PW-4, both have failed to disclose time of performance of Talb-e-Muwathibat in their statements recorded before the Court. In view of such statements one could reach to an irresistible conclusion that plaintiff has failed to prove performance of Talb-e-Muwathibat in accordance with section 13 of the K.P.K Pre-emption Act, 1987, as by now it is settled law that not only mentioning of date, time and place of performance of Talb-e-Muwathibat legally necessary but plaintiff is also legally bound to prove the same through cogent and trustworthy evidence before the court, because the contents of plaint can never be considered as evidence and by mentioning these details in the plaint the plaintiff cannot be absolved from the duty to prove the same through reliable and truthful evidence, but it is not the case of plaintiff. In similar situation the Hon'ble Supreme Court, in case "Ahmad Hassan v. Muhammad Asian," (2007 SCMR 962) has held as:--
4. In para.2 of the plaint, the plaintiff did mention the exact date of 19-10-1991 on which he had received information about the sale of the suit-land in the presence of Muhammad Akram, Fazal Hussain and Muhammad Akbar, he immediately declared his intention to pre-empt the sale. When appearing in the witness-box neither the respondent/plaintiff nor the two witnesses to Talb-i-Muwathibat, Fazal Hussain and Muhammad Akram, mentioned the date of making of Talb in the examination-in-chief. When questioned in cross-examination, none of them was able to give the date and the respondent was only able to say that it was in the month of October or November. In the case of Atiq-ur-Rehman v. Muhammad Amin (supra) a similar situation came up before this Court when the plaintiff was unable to give the exact date of the Talb in his testimony. In para.8 of the judgment, it was held:
"(8) The pre-emptor in the present case pleaded the knowledge of sale on 14-4-1999 in the plaint but in his statement in the Court he stated in general terms that he having acquired the knowledge of sale about eight months prior to the date, of making the statement, fulfilled the requirement of Talb-i-Muwasibat and also sent notice of Talb-i-Ishhad on the next day of making Talb-i-Muwasibat. The pre-emptor thus, without proving the specific date of making Talb-i-Muwasibat claimed performance of both the Talbs on the basis of the notice of Talb-i-Ishhad."
Like the present case, the two witnesses produced in support of Talb-i-Muwasibat were also unable to give the exact date of the Talb. The Court reversed the judgment of the Lahore High Court in Muhammad Amin v. Atiq-ur-Rehman 9005 CLC 1772, holding that since the date of Talb-i-Muwasibat was not established in evidence, the Talb was not proved.
In view of ratio of above judgment, of Hon'ble Supreme Court, it is held that the plaintiff has failed to prove the factum of Talb-e-Muwathibat in accordance with law.
6. Further the statements of PWs particularly PW-2 Malik Zaman and PW-3 Sherin Zaman contradict each other over the place of making Talb-e-Muwathibat, as PW-2 and PW-4 have stated in unequivocal words that they were sitting in the house of Malik Zaman and not in the Baithak. For reference relevant portion of cross-examination of l'W-2 Malik Zaman is reproduced.
While PW-3, Sherin Zaman during cross-examination deposed that when he informed Malik Zaman, he was sitting in the courtyard of Baithak. Relevant portion of cross examination of Pw-3 is reproduced as:--
So from the evidence it is proved that witnesses about fact of Talb-e-Muwathibat are not truthful one, hence, proof of same meeting and sitting is not proved.
7. It is requirement of law under section 13 of Khyber Pakhtunkhwa Pre-emption Act, that after making Talb-e-Muwathibat intending pre-emptor shall affirm his intention not only in pleading but also has to prove this fact through producing evidence and in the instant case pre-emptor has not complied with this legal requirement in accordance with law, as neither he stated in his plaint that he in confirmation of intention to exercise his right of pre-emption had sent notice Talb-e-Ish'had nor he or his marginal witnesses deposed this fact in their statements recorded before the Court. In this respect verdict laid down by the honourable Supreme Court in case titled "Muhammad Zahid v. Dr. Muhammad Ali", (PLD 2014 Supreme Court 488), is referred wherein it is held that:--
"7. The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-i-Ishhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice. The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention." (underline for emphasis)
8. Moreover, the plaintiff in Para No.1 of his plaint has alleged that the suit land has been purchased vide mutation No. 11488 by the petitioner/ defendant in lieu of Rs.45000/-, as against that the sale consideration mentioned in the mutation worth Rs.108000/-but has failed to prove the alleged sale price worth Rs.1080000/-. The plaintiff was squarely bound also to prove the sale price as alleged in his plaint by producing cogent, coherent and confidence inspiring evidence but he as well as his witnessed did not utter a single word in this respect, which fact put a ray of untruthfulness upon him. In this regard guidance is taken from the judgment of Hon'ble Supreme Court of Pakistan in a case titled Subhanuddin and others v. Pir Ghulam" (PLD 2015 Supreme Court 69) wherein it is held:--
"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."
9. It needs no emphasis that for successful exercise of right of pre-emption, the performance of Talb-e-Muwathibat, Talb-e-Ish'had and then superior right of preemption, in their respective chronological order, is essential. Any deficiency in these legal requirements will render a pre-emption suit liable to an outright dismissal. In the instant case the plaintiff has failed to prove Talb-e-Muwathibat and Talb-e-Ish'had.
10. The learned trial court has rightly dismissed the suit of respondent/ plaintiff by correctly appreciating the evidence, while the learned appellate court has failed to reappraise the evidence on file in its true perspective and therefore, had committed illegality, irregularity and its findings are based on erroneous assumptions and wrong proposition of law that can be reversed justifiable by this Court while exercising revisional jurisdiction under section 115 of C.P.C., thus, the judgment and decree of appellate court below is the result of misreading and non-reading of evidence is perverse in law so is and liable to be reversed. Reliance is placed on case titled "Muhammad Bakhsh v. Maki Bakhsh and others" (2003 SCMR 286).
11. For the aforesaid reasons, the instant revision petition is allowed, the impugned judgment of learned appellate court is set aside and the judgment of the trial Court is maintained. Consequently the suit of the respondent /plaintiff is dismissed with no order as to costs.
ZC/38/P Revision allowed.