Pakistan Case LawWAHEED AHMAD Versus ZAFARULLAH KHAN, And Other
This petition for leave to appeal is directed against the judgment of the Lahore High Court dismissing the petitioner's revision petition, which had upheld the dismissal of the petitioner's pre-emption suit. The petitioner sought to pre-empt a transaction of land disposal claimed to be a sale, whereas the revenue records and lower courts treated it as an exchange. The core legal questions involved whether the transaction constituted a sale or an exchange and whether the mandatory requirements regarding the performance of talabs under the law of pre-emption were duly fulfilled. The Supreme Court of Pakistan held that since the concurrent findings of fact by the lower courts regarding the contradictory and unfulfilled performance of talabs suffered from no illegality, misreading, or non-reading of evidence, the suit was rightly dismissed on that ground alone, rendering the nature of the transaction immaterial. The key principle laid down is that concurrent findings of fact on the failure to properly perform talabs are fatal to a pre-emption suit, making inquiries into the underlying nature of the transaction unnecessary.
- Whether concurrent findings of fact regarding the non-performance of talabs can be interfered with by the Supreme Court?
- Does the failure to fulfill the requirements of talabs render the question of whether a transaction is a sale or an exchange insignificant in a pre-emption suit?
JUDGMENT MUNIR A. SHEIKH, J.~ This petition for leave to appeal is directed against the judgment dated 10.11.1999 of the Lahore High Court through which evasion petition filed by the petitioner has been dismissed.
2.The suit filed by the petitioner to pre-empt the disposal of land by sale was dismissed on 27.1.1998 on the ground that the ground that the transaction was in fact, an exchange as disclosed in the mutation sanctioned, on 20.3.1996 and the petitioner having also not fulfilled the requirements of performance of talabs on which question, his evidence was contradictory. The appeal filed by him was dismissed through judgment dated 8.2.1999. The first appellate Court though found that the transaction in question was not an exchange but a sale but affirmed the findings of the Trial Court that requirements of law as to performance of talabs had not been complied with. The revision petition filed by the petitioner too has been dismissed through the impugned judgment dated 10.11.1999 by the Lahore High Court against which leave to appeal has been sought.
3.According to office note, the petition is barred by 14 days. Learned counsel for the petitioner has stated in the application seeking condonation of delay that no notice was given to the petitioner by the Copying Agency for the collection of the copy or that the same was ready, therefore, from the date of delivery of certified copy of the judgment of the High Court, the petition is within time. The application for supply of certified copy was made on 15.1.2000 according to the entries, it was ready for delivery on 22.1.2000 and was delivered to the petitioner on 8.2.2000.
4.In view of the averments that no notice was given to the petitioner about the date on which he was to collect the certified copy of the judgment, we are inclined to hear the petition on merits.
5.Learned counsel for the petitioner submitted that land measuring 25 kanals was exchanged with land measuring 4 kanals. He stated that there were material differences between the areas subject matter of exchange, therefore, this was sufficient circumstance to hold that it was not an exchange but a sale. He also stated that the said land measuring 4 kanals was sold to Talib Hussain on the same date through mutation sanctioned on the said date by the same revenue officer immediately after mutation of exchange was sanctioned. Both the learned Judges of the High Court and the Trial Court have elaborately and carefully appraised the evidence on this question produced by the parties and came to the conclusion that the transaction was, in fact, an exchange which findings of facts had not been shown to have suffered from any illegality.
6.We have also scrutinized the evidence of the petitioner on the question of making of talabs and find that findings of facts by all the Courts below that the same is contradictory to each other, therefore, the requirements of making of talabs had not been fully performed, are correct, therefore, it was rightly held that the suit was liable to be dismissed on that score alone, therefore, the question wither the transaction was a sale or an exchange pales into insignificance.
7.These findings recorded by all the Courts on the question of talabs also do not suffer from any illegality such as misreading or non- reading of any material piece of evidence, therefore, this petition has no merits which is accordingly dismissed and leave to appeal refused.
Judges on this bench
- Mian Muhammad Ajmal831 judgments
- Munir A. Sheikh1,362 judgments