MUHAMMAD MAL KHAN vs ALLAH YAR KHAN

' ABDUR REHMAN KHAN, J---This is plaintiff's appeal with leave of this Court as his suit for possession through pre-emption in respect of the disputed land had although been decreed by the original Court of the learned Civil Judge, but in appeal by the respondent the suit was dismissed and this dismissal order was affirmed in revision through the impugned judgment.

2. Leave was granted to consider the contention of the learned counsel that statement of the plaintiff/pre-emptor by itself would be sufficient to prove Talb-i-Muwathibat and that he would not be required to produce any other witness in this respect. The learned counsel had based reliance on "Abdul Ghias v. Syed Haji Taj Muhammad and 42 others" (PLD 1995 Quetta 1) in support of his contention.

3. Relevant facts are that the appellant/plaintiff brought a suit for possession through pre-emption in respect of the suit-land alleging superior right of pre-emption on the ground of co-sharership. It was alleged in the plaint that the requirement of Talbs had been fulfilled. The defendant in his written statement denied superior right of pre-emption and also fulfilment of Talbs and prayed for dismissal of the suit. The learned trial Court held that plaintiff had superior right of pre-emption as co-sharer and that the essentials of Talbs had been established and so decreed the suit. The learned Appellate Court upheld the finding of the trial Court on other issues but reversed it on issue of Talb holding "but in the present case except solitary statement of the plaintiff himself, not a single witness has been produced to corroborate the assertion of the plaintiff as far as Talb-e- Muwathibat is concerned. Therefore, the single statement of the witness cannot be held to be roof of the assertion made by the plaintiff as P. W.1. Even the plaintiff in his examination-in-chief has not mentioned the names of the witnesses in whose presence, he has come to know of the sale and declared his intention to exercise the right of pre-emption as such the evidence of the plaintiff has not fully corroborated the assertion of Talb-e-Muwathibat. The single statement of the plaintiff in his own favour cannot be considered as proof of assertion made by him until and unless, it is corroborated through independent source. Although the plaintiff during the cross-examination has stated that the fact of sale was disclosed to him by one Tayyab Khan but very astonishingly said Tayyab Khan was not produced as a witness, therefore, as far as Talb-i-Muwathibat is concerned, this remained unproved". Consequently, the suit of the plaintiff was dismissed. The High Court by the impugned judgment affirmed the decision of the appellate Court.

4. The learned counsel argued that the statement of the plaintiff by itself was sufficient to prove "Talb-e-Muwathibat" and it is not requirement of law to produce other witnesses in support of this Talb. He relied for his submission on the following decided cases:-

(i) PLD 1995 Quetta 1 (Abdul Ghias v. Taj Muhammad and others).

(ii) 1999 SCMR 717 (Abdul Malik v. Muhammad Latif).

(iii) 1999 SCMR 724 (Muhammad Gul v. Muhammad Afzal).

(iv) PLD 1997 SC 883 (Amir Jan and others v. Haji Ghulam Muhammad)

(v) PLD 1986 SC 360 (Government of N.-W.F.P. v. Malik Said Kamal Shah).

' The learned counsel for the respondent on the other hand argued that Talb-e-Muwathibat cannot be established unless the persons in whose presence it was made is examined to prove it. He relied on the following judgments:--

(i) PLD 2001 SC 13(Rana Muhammad Tufail v. Munir Ahmed) .

(ii) PLD 1997 SC 883 (Amir Jan and others v. Haji Ghulam Muhammad).

(iii) PLD 1995 Quetta 1(Abdul Ghias v. Taj Muhammad and others) .

No inflexible rule can be -laid for application of certain rule in a judgment to every and each case as each case proceeds on its own diverse facts. Although it is not necessary to mention the name of the person in the plaint in whose presence Talb-i-Muwathibat was made, but in this case the plaintiff admitted in his cross-examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also not clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to depose in favour of the plaintiff. Article 129(g) of Qanun-e-Shahadat reads:- ' "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."

' Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him. The cited judgments reported as PLD 1995 Quetta 1, does not help the appellant if it is read as a whole as it has not been held therein that it would be necessary to produce in evidence the person in whose presence Talb-i-Muwathibat had been made. 1999 SCMR 717 and 1999 SCMR 724 are not relevant and they deal with Talb-i-Ishhad, PLD 1997 SC 883 lays down. "The requirement of law would be fully met if it was alleged in pleadings that after having come to know of sale, pre-emptor declared his intention to pre-empt such sale-- -Material fact must be proved at trial through evidence on issue framed in that regard---Evidence to be led need not be alleged in plaint---Plaintiff had alleged Talb-i-Muwathibat in his plaint, issue therein had been framed and evidence was led in proof thereof Pleadings, however, should be liberally construed---Even if some fact was not stated with clarity and in detail in pleadings, Court was empowered to give finding on such issue in the light of evidence led". PLD 1986 SC 360 is distinguishable as it does not specifically deal with the point in issue before us. We are, therefore, not inclined to differ with the concurrent conclusion reached by the appellate and High Court and, accordingly; dismiss this appeal but leave the parties to bear their own costs.