MUHAMMAD ASLAM Versus MUHAMMAD NAWAZ
ABDUL LATIF KHAN, J.--- This revision petition has been preferred against the judgment and decree dated 21.01.2009, passed by learned Appellate Court, whereby the appeal filed by petitioner against the judgment and decree dated 15.09.2007, passed by learned trial Court, was dismissed.
2. Brief facts of the case are that petitioner filed a suit for ejectment/possession through pre-emption on the suit property bearing Khasra No.257 measuring 01 kanal 06 marlas out of 03 kanals situated in Mouza Havelian or whichever share transferred through registered deed No.276 dated 21.3.1996 The suit as contested by the respondents on factual as well as legal grounds. After framing of issues, the respondents/defendants moved application under Order VII, Rule 11, C.P.C. which was accepted and upheld by the appellate Court. Feeling aggrieved, the petitioner filed Writ Petition which was accepted and the case was remanded to the trial Court. After remand of the case, the parties were asked to produce their respective evidence in support of their respective pleas and at conclusion of trial, the learned trial Court dismissed the suit of petitioner vide impugned judgment and decree dated 15.09.2007. The appeal filed by petitioner was also dismissed by the learned appellate Court vide judgment and decree dated 21.1.2009, hence the instant petition.
Arguments heard and record perused.
3. A perusal of plaint reveals that the plaintiff in Para 3 averred that he got the knowledge of sale on 25.3.1995 at Havelian in his house in presence of persons who are marginal witnesses of notice Talb-e Ishhad dated 29.03.1995 and there and then announced to preempt the transaction in dispute. It is pertinent to mention that no time has been given in this para by the plaintiff. The witnesses of notice 'Talb-e-Ishhad' are PW.6 Abdur Raziq and Ghulam Hussain (PW.7). They have deposed nothing about the 'Talb-e-Muwathibat' as averred in Para 3 of the plaint by the plaintiff. They confined themselves regarding notice 'Talb-e-Ishhad' and have not uttered a single word about their presence at the time of making 'Talb-e-Muwathibat' by the plaintiff which is clear negation to the stance taken by the plaintiff. Though the son of plaintiff has not been mentioned in the plaint as an informer however the plaintiff has made improvement in his stance while deposing as PW.5 that he was present on 25.3.1995 at 11.00 hours in his house when his son Haji Zardad came and informed him about the transaction. This addition of his son as informer as well as the time mentioned in his Court statement amounts to departure from the pleadings. Needless to mention that parties are bound by their pleadings and could not be allowed to depart from their pleadings. It is also pertinent to mention that any evidence produced by departing from pleadings could not be allowed by the Court to be produced and if produced could not be considered by the Court. Apart from this the plaintiff has further added that on 26.3.1995 the defendant started dumping stone on the spot/disputed property and thereafter on 25.3.1995, he got scribe notice from Petition Writer whereas notice contains the date 29.05.1995 which too is not in line with the pleadings of the plaintiff and amounts to contradiction. The plaintiff named his son as informer in his Court statement for the first time but has abandoned him from examination for the reasons best known to him which is fatal to the case. The original notice Talb-e-Ishhad has not been produced by the plaintiff in Court. Similarly no application for production of secondary evidence has been moved and as such the provision of section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act has not been complied with properly.
4. The Courts below have decided the lis pending before them with conscious and application of independent mind, warrants no interference.
For the aforesaid reasons, this petition being devoid of merit is dismissed.
MM/214/P Petition dismissed.