RIAZ AHMAD Versus FAZAL HUSSAIN
CH. MUHAMMAD MASOOD JAHANGIR, J.--- The synopsis of the case are that the disputed property fully mentioned in para-1 of the plaint was owned by Muhammad Arshad which was transferred by him to the present petitioner/defendant who is now succeeded by Afzaal Ahmad etc. vide oral gift mutation No.1940 dated 31.8.1999 (Exh.P6). The said transaction was assailed by Fazal Hussain, pre- emptor by filing suit for possession through pre-emption before the learned trial court with the assertion that disputed property had in fact been sold out in favour of the petitioner/defendant, but to defeat the right of pre-emption the fake colour of gift was given in the disputed mutation. The pre-emptor also pleaded in the plaint his superior right of pre-emption being Shafi Sharik, Shafi Khalit and Shafi Jar. He further contended that disputed transaction was kept secret, which came into his knowledge on 15.11.1999 at 2.00 p.m. while present at his house along with Raja Muhammad Arif when Raja Safdar Hussain communicated the alleged transaction of sale to him whereupon he then and there performed requisite Talb-i -Muwathibat. Thereafter notice Talb-i-Ishhad was dispatched on 16.11.1999 to the petitioner/defendant. The said suit was contested by the petitioner/defendant with the assertion that pre-emptor failed to perform talbs whereas disputed transaction was in fact a gift and he got attested mutation of gift Exh.P6 regarding the transaction of gift as reflected therein, he also denied that pre-emptor had any preferential right over the sale of the disputed property.
2. The learned trial court captured the disputed area of facts by striking the following issues:-
1. Whether suit land was actually sold out against a consideration of Rs.50,000/- but to defeat the plaintiff's right of pre-emption, gift mutation was entered? OPP
2. Whether plaintiff has superior right of pre-emption qua the defendant? OPD
3. Whether plaintiff has fulfilled the requirements of Talbs? OPD
4. Whether suit does not lie as per law? OPD
5. Whether the suit is barred by limitation? OPD
6. Whether plaintiff has no cause of action? OPD
7. Relief.
3. Both the parties produced their evidence in pros and cons and after appreciating the same the learned trial court vide judgment and decree dated 3.2.2005 decreed the suit. Being aggrieved the petitioner preferred an appeal before the learned lower appellate court, which was also dismissed vide judgment and decree dated 15.1.2007. Being dissatisfied the petitioner has assailed the judgments and decrees passed by the courts below through the instant civil revision.
4. The learned counsel for the petitioner has argued that the impugned judgments and decrees passed by the courts below are not free from taint of misreading and non-reading of evidence and suffer from material irregularities and illegalities, that the transaction embodied in mutation No.1940 Exh.P6 was of gift and no adverse finding can be given qua the said transaction without impleading the donor in the suit, that pre-emptor failed to establish his superior right of pre-emption and the courts below misinterpreted the evidence available on file in this regard, that the pre-emptor also failed to prove the requisite talbs as per law. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgmepts and decrees and dismissal of the suit of the pre-emptor/respondent.
5. Conversely the learned counsel for the respondent has supported the impugned judgments and decrees and prayed for dismissal of the instant civil revision.
6. Arguments heard and record perused.
7. Both the courts below answered issues Nos.1 to 3 in favour of the pre-emptor and the findings of said issues require re- determination by this Court.
8. To discharge the onus of issue No.1 whether disputed property was actually sold out and to defeat the right of pre -emption of the pre-emptor the sham transaction of gift was embodied in the disputed mutation Exh.P6, the pre-emptor appeared as PW3 who deposed in his examination in chief that Safdar Husssain son of Muhammad Ramzan PW4 informed him that disputed property had been purchased by the petitioner/defendant against a consideration of Rs.50,000/-, but to defeat the right of the pre-emption of the petitioner the transaction was given the colour of gift. The perusal of above referred deposition of the pre-emptor reveals that he nowhere alleged that transaction of sale had been arrived at in his presence or any sale consideration was passed by the alleged vendor to the alleged vendee before him rather he only deposed that he heard from Safdar Hussain PW4 that disputed property had been sold by the previous owners to the petitioner/defendant. However, the alleged informer, Safdar Hussain was also produced by pre-emptor/respondent as PW4 who deposed in his statement in chief that on 15.11.1999 he visited patwari who told him that disputed property had been sold out to the petitioner/defendant against a consideration of Rs.50,000/- and he communicated the said fact to the pre-emptor on the same day.
9. It is very pertinent to notice that said PW4 was also not a witness of the disputed transaction rather his knowledge was based on hearsay evidence. The other witness Muhammad Arif PW5 also deposed on the same lines. In his examination in chief he also did not state that any transaction of sale of the disputed property had been effected in his presence. No other corroborative witness was produced by the pre-emptor, who could independently depose that transaction of sale was allegedly effected and in his presence the terms and conditions of the bargain of sale were settled and sale consideration was also passed on to the vendor. However, in rebuttal evidence the pre-emptor produced Abdul Qayyum patwari PW6 and surprisingly he did not corroborate the story developed by PW3 to PW5 in their deposition that it was the patwari, who informed PW4 that disputed property had been sold out and a sham transaction of gift was embodied in the disputed mutation Exh.P6, rather he only deposed that pre-emptor was co-sharer in two khewats bearing Nos.54 and 48 out of disputed three khewat Nos.54, 48 and 46 and pre-emptor was not co-sharer in the 3rd khewat No.46.
10. The said oral assertions of PW4 to PW6 are not sufficient to prove that disputed transaction of gift was in fact a sale. Onus was on the pre-emptor to prove that the transaction was of sale but he could not establish the circumstances to prove the transaction as sale. The gift mutation Exh.P6 was attested in the common assembly by the Revenue Officer while performing his public duty which attained presumption of truth. The oral evidence cannot exclude the documentary evidence. In the recent judgment reported as "Elahi Bakhsh through Legal Heir and others v. Muhammad Iqbal and another" (2014 SCMR 1217), the identical proposition has been fully discussed while observing as under:-
"Burden of proof was on plaintiffs to prove that transaction in question was a sale and not exchange. "S" and "M" stated in their evidence in court that their transaction with defendants was one of sale and not exchange. Such oral statements from "S" and "M" varied the terms of the deed that they had entered into with defendants. Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence (Art. 103 of Qanun-e-Shahadat, 1984), therefore, oral statements from "S" and "M" were inadmissible in evidence. Appeal was allowed accordingly and suit of plaintiffs was dismissed."
11. Both the courts below without discussing the evidence adduced by the pre-emptor in this regard relied their findings of the instant issues on the statement of petitioner/defendant DW1. Raiz Ahmed the petitioner/defendant in his written statement as well as in his deposition as DW1 clearly pleaded and deposed that disputed property was transferred to him by means of gift and no sale transaction was effected between him and Muhammad Arshad the previous owner. However in first line of his cross-examination he deposed that he had purchased the disputed property from Muhammad Arshad who is close relative but in the latter part of his cross-examination he denied that disputed property was purchased by him and a fictitious mutation of gift was wrongly got attested by him. No doubt the court has discretion to draw inference from evidence produced by the parties, but the exercise of such discretion is always subject to correction by the superior courts in appeal or revision as the case may be. Inference drawn by the courts below has been based on non-consideration of the evidence as a whole. The courts below read the statement of DW1 in isolation. Picking and choosing of such minor portion of statement does not amount to pragmatic and positive inference and approach. The court is supposed to draw a conclusion keeping in view the substance of entire deposition of witness and one sentence cannot be torn out of context. It is the duty of the court to visualize and evaluate the genuineness, capability and mental level of the witnesses and the court could not text and infer from a layman to improvise, compose extempore answers who as a matter of fact did not use to face the hard cross-examination put by the expertise. The court is required to apply independent judicious mind with great care and caution.
12. In the present case by picking and choosing minor omission and contradictions in the evidence of the witness which was against his other deposition, no adverse inference could be drawn for such a petty and trivial drawbacks not fatal on material facts. The court is obliged to concentrate on the theme, pith and substance of a statement and not to chalk out a selective piece of evidence. Reliance can be placed upon the judgments reported as Haji Feroze Khan and another v. Amir Hussain through L.Rs. and others (2004 SCMR 1719), Muhammad Yousaf Baig v. Rehmat Ali (2009 SCMR 642), Muhammad Anwar and others v. Ghulam Siddiq and others (PLD 1989 SC 749) and Ali Bahadur v. Muhammad Ishaq (2013 YLR 2555) wherein it has been held that the question of non interpretation of evidence contrary to the record of proceedings merely on the basis of slip of tongue could not be upheld, but this Court can rectify the error while taking into consideration the theme of the deposition of a witness.
13. In view of the above discussion and scrutiny this Court is constrained to hold that the findings recorded by the courts below on issue No.1 being based on misreading and non-reading of evidence as well as misinterpretation of statement of DW1 are not sustainable in the eye of law, which are reversed and the said issue is answered against the pre-emptor.
14. To discharge the onus of issue No.2 the pre-emptor-respondent No.1 himself appeared as PW3, and produced PW4 and PW5 who claimed to have preferential right over the disputed property without giving any detail in this regard that which of the preferential right is attributed to pre-emptor. However it is significant that as per impugned mutation Exh.P6 property falling in three khewats bearing Nos.46, 48 and 54 was transferred to the petitioner/defendant and to prove the factum of Shafi Sharik in the said khewats the pre-emptor produced copy of register haqdaran zamin pertaining to khewat No.54 Exh.P3 and pertaining to khewat Nos.48 and 46 Exh.P4. The perusal of said documents reveals that the pre-emptor was co-sharer in khewat Nos.40 and 54 whereas he was not mentioned as co-sharer in 3rd khewat No.46. Even Abdul Qayyum PW6 the concerned patwari deposed in his examination in chief that pre-emptor was not a co-sharer in khewat No.46. The said oral as well as documentary evidence reflects that pre-emptor was a co-sharer in two khewats out of the disputed three khewats and he is unable to prove his preferential right being shafi sharik regarding whole of the pre-empted property and partial pre-emption is not permissible under the law. As regards preferential right on the basis of other conditions i.e. Shafi Khalit and Shafi Jar, no evidence is available on file. None of the PWs deposed any word regarding the above referred preferential rights. The statement PW6/Patwari is also silent in this regard. Both the courts below answered issue No.2 against material/evidence available on file and fell in error while answering the same in favour of the pre-emptor, therefore findings on this issue are also reversed.
15. The evidence available on record fully prove the performance of requisite talbs by the pre-emptor. Both the courts below after scanning the evidence available on file rightly answered issue No.3 in favour of the pre-emptor. No doubt there are some lapses and contradictions in the statements of PW2 to PW5, but those cannot be considered as major variations in the light of said convincing evidence and I am in full agreement with the findings recorded by the courts below on this issue.
16. Sequel of the above discussion is that as the pre-emptor-respondent failed to prove his superior right as well as that the alleged transaction of gift was that of sale, the suit for possession on the basis of pre-emption could not succeed. The concurrent findings recorded by both the courts below are found to be tainted with misreading and non-reading of evidence which has rendered the same illegal, unlawful and without jurisdiction and cannot be sustained in the eye of law. The instant civil revision is accepted, the impugned judgments and decrees passed by the courts below are set aside and the suit of the plaintiff/respondent stands dismissed.
ZC/R-6/L Revision allowed.