AMEER ABDULLAH Versus ABDUL JABBAR KHAN
ORDER
MEHMOOD MAQBOOL BAJWA, J.--- Judgment at variance.
2. Being aggrieved by the judgment and decree of learned Additional District Judge, Mankera dated 18.02.2011 whereby while setting aside the decree of learned civil court at Mankera dated 2nd of April, 2010 in the suit for possession through pre-emption, claim of respondent was allowed, the petitioners have filed present revision petition.
3. Facts in brief resulting in filing of present revision petition are that respondent instituted suit for possession through pre-emption in respect of property measuring 245-kanals 12-marlas situated in village Haiderabad, Tehsil Mankera; District Bhakkar, which was alienated by Iftikhar Hussain etc. in favour of petitioners through mutation No. 12805 attested on 11th of July, 2006.
4. The suit was contested by petitioners on legal as well as factual premises.
After casting necessary issues; recording evidence and hearing the adversaries, the learned civil court at Mankera through judgment and decree dated 2nd of April, 2010 dismissed the suit of respondent answering issue No.2 against the respondent regarding performance of requisite Talbs.
5. In an appeal preferred by the respondent, learned appellate court reversed the findings of learned trial court on issue No. 2 formulating opinion that discrepancies pointed out and banked upon by the learned trial court are of no significance and as such, natural result was grant of decree in favour of respondent.
6. Since learned appellate court set aside the findings of learned trial court on issue No. 2, therefore, the adversaries focused their attention with reference to opinion formulated by the learned appellate court regarding reversal of findings.
7. Learned counsel for the petitioners while making reference to the contents of para-3 of the plaint submitted that according to the contents of said paragraph, respondent got knowledge regarding questioned transaction on 5th of October, 2006 through Muhammad Sharif when he was present at his Dera and in the said paragraph, name of any other witness in whose presence intimation was given by the informer and jumping demand was made does not find mentioned. He, however, making reference to the evidence led by the respondent submitted that improvements were made by the respondent while producing Ahmad Hassan (PW-3) who deposed that he was also present at the time of communication of information regarding questioned sale by the informer.
Referring to the statement of Muhammad Sharif, informer (PW-2), it was submitted that according to him he not only informed the respondent regarding the questioned transaction verbally but also handed over a chit which he got prepared from the Halqa Patwari containing the particulars of questioned transaction but the same fact neither finds mentioned in the contents of the plaint nor any witness including the respondent explained this fact. Submitted that chit which according to the informer (PW-2) was given to the respondent by the said witness was also not produced and as such, adverse inference has to be drawn against the respondent.
Continuing the arguments, it was submitted that there are also material contradictions in the statements of witnesses with reference to jumping demand. To substantiate the contention, reference was made to the reply given in cross-examination by the respondent (PW 1) stating that the informer intimated him about the questioned sale after 15-minutes of his arrival but, added, the same fact was contradicted by the informer himself who in cross-examination stated that he disclosed the factum of transaction immediately to the respondent after reaching at his Dera. Submitted that said discrepancies were rightly taken note by the learned trial court while non-suiting the respondent but the opinion formulated by the learned Additional District Judge, that the said discrepancies are of no significance is against the legal mandate because said discrepancies go to the root of the case.
Referring to the inter se relationship of the respondent with the vendors, it was submitted that vendors are paternal nephews of the respondent and are co-sharers, therefore, it does not appeal to the reason that respondent got no knowledge regarding questioned sale.
Argued that specific plea was taken at the instance of petitioners that respondent himself was an instrument in the settlement of transaction which fact stands proved not only in view of the evidence led by the petitioners but also keeping in view the close relationship of the respondent with the vendors.
Submitting arguments with reference to performance of "Talb-i-Ishhad", it was contended that it is the case of respondent that petitioners refused to accept the service but notices inside the envelopes, if any, were not opened in view of the Court at the time of production of evidence and as such, the evidence of post man attributing refusal to the petitioners would not be sufficient to prove the performance of Talb-i-Ishhad.
8. Repelling the arguments, criticizing the judgment of learned trial court and defending the judgment assailed, it was submitted by learned counsel for the respondent that learned trial court gave undue weight to the discrepancies, trivial in nature, which fact was rightly noted down by learned Additional District Judge, holding that the said discrepancies were natural and probable due to lapse of time and as such were rightly ignored by the learned appellate court.
Admitting the contention of learned counsel for the petitioners that no reference has been made in the plaint regarding the supply of chit as deposed by the informer in his statement as PW-2 but argued that said informer made obliging statement and as such, the statement to the extent cannot be taken into consideration. Further argued that it has come on record that informer also intimated the respondent verbally regarding settlement of transaction which fact finds support from the evidence of respondent (RW-1) and Ahmad Hassan (PW-3). Submitted that law does not require parrot like narration and as such, learned appellate court rightly reversed the findings of learned trial court with reference to jumping demand.
Continuing the arguments, learned counsel for the respondent while replying the arguments with reference to performance of Talb-i-Ishhad, contended that petitioners refused to accept notice of Talb-i-Ishhad which fact was proved by Allah Bakhsh, post-man (retired) (PW-5). Submitted that registered envelopes (as it were) produced before the court were admitted in evidence and if the petitioners got any apprehension that the notices were not posted through said registered envelopes, request should have been made by the petitioners to open the same. Omission, contended, is sufficient to controvert the stance taken by the petitioners and that too at this stage. Further submitted that due weight has to be given to the findings of learned appellate court.
9. The learned trial court while evaluating the evidence non-suited the respondent formulating opinion that the respondent failed to prove both the requisite Talbs.
10. It is the case of respondent that information was communicated to him by Muhammad Sharif (PW-2) as is evident from para-3 of the plaint. Perusal of the said paragraph suggests that it is nowhere mentioned that at the time of information, any other person was present but strangely enough, the respondent produced Ahmad Hassan (PW-3) according to whom he along with Muhammad Hanif was also present at that time and same fact was also deposed by the informer i.e. Muhammad Sharif while appearing as PW-2. It is further to be noted that same fact was also highlighted by the respondent in his direct statement while appearing as PW-1.
Though in the opinion of learned counsel for the respondent, omission to disclose names of witnesses in the plaint when the respondent got knowledge regarding questioned sale is of no significance but I regret to share and endorse the opinion because it was the duty of respondent being pre-emptor to give each and every detail regarding presence of persons in the sitting or meeting in the plaint. The fact was rightly noted by the learned trial court.
It is not understandable that if two witnesses i.e. Ahmad Hassan (PW-3) and Muhammad Hanif (not produced) were present in the sitting when information was given to the respondent regarding questioned sale and making jumping demand, why their names were not mentioned by the respondent in the plaint.
It is further to be noted that names of the witnesses statedly present at the time of communication of information regarding questioned sale were not given by the respondent in cross-examination but the same fact was disclosed by him in his direct statement. Omission to state this fact in the plaint, in my considered view, is of significance and goes to the root of the case which was not properly appreciated by the learned Additional District Judge while setting aside the findings of learned trial court.
11. According to the stance of respondent, it was Muhammad Sharif who informed him about the questioned sale and after getting knowledge, the respondent made jumping demand.
Learned trial court rightly noted down the discrepancy with reference to time when the factum of questioned sale was intimated to the respondent by the informer. According to Muhammad Sharif, informer (PW-2), after reaching at the Dera of respondent, he immediately communicated the matter to respondent followed by handing over the chit to him containing the particulars of transaction upon which there was an immediate declaration made by the respondent showing his intention to pre-empt the sale but same fact was controverted by the respondent himself who in cross-examination submitted that the informer (PW-2) intimated him the factum of sale after 15-minutes of his arrival.
In the opinion of learned counsel for the respondent, this is a discrepancy which is of minor nature but I cannot find myself in agreement with the argument of learned counsel for the respondent and conclusion drawn through judgment assailed.
13. In order to appreciate the contention of the adversaries regarding "discrepancy", it is desirable to know the meaning of "contradiction". Admittedly, the said expression has not been defined in any statute or law but it can be defined and interpreted as " any dis agreement between or among the persons with reference to important facts which when evaluated by a person of ordinary prudence cannot be re-conciled and will create a state of uncertainty, confusion and ambiguity in order to reach the conclusion about the happening of a particular fact at a particular time. " (Emphasis supplied).
Keeping in view the above definition, when the evidence of informer and respondent is examined, it becomes crystal clear that statements of both the witnesses at variance with reference to time when information was given by the informer to the respondent cannot be reconciled. With this background, a person of ordinary prudence would be in a state of uncertainty compelling him to ponder in order to determine the exact time when the stated fact occurred.
With this background, learned trial court rightly reached to the conclusion treating the said difference of opinion as a "contradiction" which goes to the root of the case.
14. In the plaint, simple case was introduced by the respondent being pre-emptor that matter was brought to his notice by the informer i.e. Muhammad Sharif (PW-2) but while appearing as a witness, informer introduced an added story that he was informed by the Halqa Patwari regarding the questioned transaction and he made request to the Halqa Patwari to write down the particulars of said transaction on chit which he handed over to the respondent simultaneously. Though it was not necessary to disclose in the plaint source of information of informer but I, am of the considered view that all source of information through which pre-emptor got knowledge regarding questioned sale must have been disclosed in the plaint. The respondent as such should have also disclosed in the plaint that informer also gave him chit containing particulars of questioned sale after verbal intimation.
Admittedly, this fact was not disclosed by the respondent while appearing as PW-1 .
Ahmad Hassan, who statedly was also present at the time of communication of information (though his name and particulars do not find mentioned in the plaint) while appearing in the witness-box, in reply to a question in cross-examination, maintained that the informer communicated the information verbally. Similarly, the respondent in his direct statement did not disclose this fact.
Though this is an additional source of information but nevertheless the omission to disclose this fact by the respondent causes doubts about the truthfulness of not only the respondent but also of the informer i.e. Muhammad Sharif and Ahmad Hassan (PW-3), marginal witnesses of the notice of Talb-i-Ishhad.
It is to be noted that though the respondent remained silent in his direct statement regarding receipt of chit and no question was put to him in cross-examination about this aspect but specific question was posed to Ahmad Hassan (PW-3) in this regard who categorically stated that only verbal information was communicated to the respondent.
In view of the matter, the evidence of informer as well as Ahmad Hassan stated to be present at the time of communication of information cannot be re-conciled and as such is a contradiction not only going to the root of the case but also reflecting the credibility of both the witnesses being truthful within the meaning of section 13(3) of The Punjab Pre-emption Act, 1991.
Use of expression "sending the notice in writing attested by two truthful witnesses" in the said paragraph is of significance. It is an admitted fact that both the witnesses (PW-2 and PW-3) are attesting witnesses of the notice (Ex.P-1).
15. Specific assertion made by the informer regarding source of communication of questioned sale has been contradicted by the said witness i.e. Ahmad Hassan and as such this Court is of the considered view that any of the witness made a statement which is not true. However, it is not possible to say with certainty which witness made statement against the facts.
In the circumstances, no implicit reliance can be placed upon the statements of said witnesses in order to prove the communication of information about questioned sale as well as jumping demand and their credibility as truthful witnesses also becomes doubtful keeping in view the provisions of section 13(3) of The Punjab Pre-emption Act, 1991.
Conscious of the fact, attempt was made by learned counsel for the respondent that obliging statement was given by the said witness in order to prejudice the case of respondent but there is nothing on record to suggest any such collusion between the witness (PW-2) and petitioners. If there was any collusion between the informer and petitioners, attempt should have been made by the respondent by getting declaration of hostility against the said witness in order to put him questions in the form of cross-examination. If the respondent was of the opinion that it is just a slip of tongue (which cannot be believed), then request should have been made at his instance for re-examination of the witness but none of the mode was adopted and as such, the argument is mis-conceived and ill-founded.
16. Learned Additional District Judge did not take note of these facts which are important and go to the root of the case.
17. I am not un-mindful of the proposition that substitution of opinion is not permissible in revisional jurisdiction but this principle keeping in view the facts and circumstances of the case is not applicable. In the civil administration of justice, lis is to be decided keeping in view the preponderance of evidence and if view adopted by sub-ordinate court taking into consideration evidence cannot be justified, interference in revisional jurisdiction would be permissible by adopting another view which is more realistic, justified and probable.
18. However, I am in agreement with the contention of learned counsel for the respondent with reference to conclusion drawn by the learned Additional District Judge regarding performance of Talb-i-Ishhad.
Evidence of post-man (PW-5) is sufficient to prove refusal on the part of petitioners to accept the service as the said witness categorically stated that he time and again visited the residence of petitioners but they were not available and ultimately, there was refusal on the part of Ashfaq Ahmad, son of one of the petitioners. Though attempt was made to question the veracity of said witness but it remained an unsuccessful attempt.
Argument advanced by learned counsel for the petitioners that registered envelopes were not opened while producing the same in evidence and as such, it is not clear whether notice was inside the envelope, would not advance the plea of petitioners because after production of registered envelopes, if there was any apprehension in the mind of petitioners that registered envelopes are blank, the petitioners should have made request to the learned trial court to open the same.
19. However, credibility of witnesses (PW-2 and PW-3) being truthful witnesses attesting the notice of Talb-i-Ishhad shall remain under cloud in view of discussion made.
20. This Court is well conscious of the proposition of law enunciated by the Apex Court in " Muhammad Hassan v. Khawaja Khalil-ur-Rehman " (2007 SCMR 576) that where judgments are at variance, due weight has to be given to the judgment of appellate court but in the same Report, it has been held that if the judgment of appellate court suffers from irregularity or illegality, same is amenable to interference and then sanctity attached to the conclusion of the appellate court will not be a barrier for revisional court to interfere and reverse the findings.
21. Pursuant to above discussion, there can be no two opinions that conclusion drawn by the learned appellate court with reference to mode and time of information of questioned sale upon the strength of which jumping demand was made and credibility of witnesses (PW-2 and PW-3) is legally not sustainable and as such being perverse, fanciful and arbitrary, the conclusion is amenable to the revisional jurisdiction of this Court.
22. Epitome of above discussion is that findings of learned appellate court on issue No. 2 are legally not sustainable who set aside the well-reasoned findings of learned trial court on the moot point without any legal justification and as such while setting aside the findings assailed, conclusion of learned trial court is restored, resulting in acceptance of revision petition and dismissal of the suit for possession through pre-emption instituted by respondent
23. No order as to costs.
ZC/A-135/L Revision allowed.