KHANI ZAMAN vs SHAH HUSSAIN and others

ORDER

' SH. IJAZ NISAR, J.--Leave is sought against the judgment, dated 12-6-1996, of the Peshawar High Court, Peshawar, accepting Civil Revision No,107 of 1995 filed by Shah Hussain, respondent No, 1 .

2. The facts in brief are that Khani Zaman, petitioner herein, filed a suit for possession through pre- emption of land, described in the plaint, purchased by Shah Hussian respondent through mutations attested on 22-8-1989 and 21-9-1989. Shah Hussain vendee/respondent contested the suit and inter alia contended that the petitioner had failed to give notice of Talb-i-Ashhad in accordance with law, and further that it was not within the prescribed period. After recording evidence, the learned trial Court decreed the petitioner's suit vide judgment dated 5-7-1994. Shah Hussain respondent filed an appeal before the District Judge, Haripur, which was dismissed on 17- 9-1995 and the judgment and decree of the learned Civil Judge were maintained. He then filed a revision petition in the Peshawar High Court, which was accepted on 12-6-1996, and the findings of the Courts below were set aside and the pre-emption suit of Khani Zaman, petitioner was dismissed.

3. The learned Single Judge in the High Court non-suited the petitioner for having failed to prove that he had made the necessary 'Talb' in accordance with law. Dealing with this question he observed as under:- "The question of 'Talb-i-Muwathibat' is a pure question of fact and thus is bound to be mentioned in the pleadings. So far as the pleadings are concerned, the plaint shows that 'Talb-i-Muwathibat' and 'Talb-iIshhad' were done on one and the same day whereas in the evidence the pre-emptor has set up a different case to the effect that 'Talb-iMuwathibat' was done two days prior to 'Talb-i- Ishhad'. It is a settled principle of law that no evidence can be led on a question of fact which is contrary to that alleged in the plaint... ... .

' In the circumstances of the present case, I hold that the 'Talb-iMuwathibat' is neither distinctly alleged being independent of 'Talb-iIshhad' nor it is proved in the light of the pleadings. Unless 'Talb-iMuwathibat' is proved in a pre-emption case, no right of pre-emption comes into activation.

Both the Courts below have wrongly appreciated the evidence and have fallen into material irregularity."

4. Learned counsel for the petitioner has urged that the learned High Court has misread the evidence on the point of making 'Talbs' by his client and based its conclusions on wrong assumptions of law and fact.

5. Admittedly, no date of 'Talb-i-Muwathibat' is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned therein, nor the names of any of the witnesses are given.

Admittedly, the transactions preempted by the petitioner were distinct and separate but the plaint is silent with regard to making of 'Talb-i-Muwathibat' in respect of each transaction. The evidence examined by the petitioner about the time of making 'Talb-iMuwathibat' and 'Talb-i-Ishhad' is in conflict with the case set up by him in the plaint. In the plaint two 'Talbs' are said to have been made on one and the same day, whereas the evidence led by the petitioner showed that 'Talb-i- Muwathibat' was made two days prior to 'Talb-i-Ishhad'. The detail regarding time and place of 'Talb-i-Muwathibat' is an important factor because the period of limitation for 'Talb-i-Ishhad' is calculated therefrom.

6. Having considered the contentions raised by the learned counsel for the petitioner, we are of the view that the petitioner had failed to mention in the plaint necessary details as to the time and place of 'Talb-i-Muwathibat' which was necessary for the calculation of period of limitation for 'Talb-i-Ishhad'. The learned High Court has very ably dealt with this question and the conclusion arrived at by it is based on proper appreciation of law and facts and does not call for any interference. Hence, the petition is dismissed and .