MUHAMMAD YOUNUS Versus BHAI KHAN
This revision is directed against the judgments/decrees dated 30‑3‑1972 by the learned Civil Judge, Naushahro Feroze, in Suit No.14 of 1969 and dated 30‑9‑1981 passed by the learned IInd Additional District Judge, Nawabshah. in Civil Appeal N o.32 of 1972.
2. The brief facts leading to the filing of the above revision are that the present applicant through a sale‑deed dated 15‑11‑1958 inter alia purchased of Survey No.150/1 measuring 1.3 acres and Survey No. l 5d/Z measuring 37 ghuntas situated in Deh Mari Taluka Moro from respondent No.2. .It seems that the respondent No.1 filed the aforesaid suit for claiming right of pre‑emption in respect of the above two survey numbers. The above suit was resisted. The learned trial Court on the basis of the pleadings of the parties framed 7 issues.
3. In support of the suit, the respondent No.1 examined himself and two witnesses namely, Muhammad Ibrahim Arain (Punjabi) and Muhammad Ibrahim Bughio (Sindhi), whereas the applicant examined himself alone.
4. The learned Civil Judge after hearing the arguments by the aforesa16 judgment/decree dated 30‑3‑1972 decreed the suit of pre‑emption in respect Survey No. 150/1 but dismissed the suit in respect of the other Survey No.150/ 1,. The applicant being aggrieved by the above judgment/decree filed Civil Appeal No.32 of 1972, which was dismissed by the learned IInd Additional District Judge, Nawabshah by his above judgment/decree dated 30‑9‑1981. The applicant being aggrieved by the above two judgments/decrees has filed the present revision.
5. In support of the above revision application, Mr. G.M. Qureshi, learned counsel for the applicant, has vehemently urged that both the Courts below erred in decreeing the suit in spite of the fact that in the plaint it was not averred that the second demand was made in presence of two witnesses and in spite of the fact that the respondent No.1 in his cross‑examination admitted the factum that he was not conversant with the manner in which the right of pre‑emption was to be exercised.
On the other hand Mr. Kazi Muhammad Saleh, learned counsel for the respondent No.1, has submitted that the plaintiff is not supposed to disclose the evidence in the plaint and the factum that the first demand and the second demand were made was specifically pleaded in the plaint. His further submission is that the above admission on the part of the respondent No.1 that he was not conversant with the manner of exercising the right of pre‑emption is to be read in e context with the other part of statement.
6. In furtherance of his above first submission, Mr. G.M.Oureshi, learned counsel for the applicant, has referred to paras 5 and 6 of the plaint, which read as follows:‑
"(5) That the plaintiff came to know about above sale in the end of November 1968. On receiving this information, the plaintiff immediately contacted the defendants and told them that he has got right of pre- emption over this land and he demanded the said land from the defendants for the same amount. In this manner the plaintiff made first demand. But the defendants refused.
(6) That without any delay the plaintiff told the defendants that he has made the first demand and he demands from them second time that they should sell the aforesaid land to him for the same amount, but the defendants again refused"
7. It is true that in tile above two paras, it has not been averred by the respondent No.1 that the second demand was made in presence of two witnesses.
On the other hand Mr. Kazi Muhammad Saleh, learned counsel for the respondent No.1 has referred to Order VI, Rule 2, C.P.C., which provides that "every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs numbered consecutively. Dates, sums and numbers shall be expressed in figures".
In furtherance of his above submission he has referred to the case of 'Abdul Maleque Laskar v. Begum Tayabunnessa and others, reported in P L D 1966 Dacca 217, in which a Division Bench while construing the above provision of the Civil Procedure Code held that the names of the witnesses are not to be given either in the plaint or in the written statement.
8. I am inclined to hold that the facts of making the first demand and the `second demand are the necessary facts, which‑ were to be pleaded specifically in the plaint. The factum in whose presence second demand was made, was a matter of evidence and, therefore, there was no legal requirement to have mentioned the names of the two witnesses. The learned two Courts below have recorded the finding of fact that factually the second demand was made in presence of the two witnesses, who have been examined by the respondent No. l and who do not have any personal reason to depose in favour of respondent No. L The above finding of fact m my view, cannot be interfered with in the exercise of revisional jurisdiction.
9. Adverting to the second limb of the above arguments of Mr. G.M. Qureshi, learned counsel for the applicant, the respondent No.1 has admitted in his cross‑examination that he was not conversant with the procedure of exercising the right of pre‑emption. It may be observed that the above admission in fact P' does not nullify the factum that in fact he had exercised the right of pre‑emption in accordance with law as he has stated at the same time that he had consulted his father because he was not conversant with the manner in which the right of pre‑emption was to be exercised.
For the aforesaid reasons, the revision has no merits and, therefore, it is dismissed with no order as to costs.
M.Y.H./M‑467/K Petition dismissed.