MIAN SAQIB NISAR, J.--- The suit for the preemption filed by the respondent against the appellant was partly allowed by the learned Trial Court vide judgment and decree dated 14 5.2002 and the appeal of the appellant has been dismissed vide judgment and decree dated 9.8.2004.
2. Briefly stated the facts of the case are, that the appellant purchased the land measuring 81 kanals and 14 marlas, for a total consideration of Rs. 28,00,000/-; the respondent filed a suit for the pre-emption, challenging the said sale claiming that he on 12.11.1999 at 5 p.m., came to know about the transaction, through Zafar Ahmed (PW-4) and in the presence of Bahadar Khan (PW-6) and Muhammad Nawaz, made talb-i-muwathibat, whereafter, the notice of talb-i-ishhad was sent on 13.11.1990. The preemption claim of the respondent is based upon shafi-i-sharik, shaf-i-khalit and shaf-i-jar. The appellant consented the matter, denied the plaintiffs superior right of pre-emption and also refuted the making of the talbs, therefore, inter alia, requisite issues Nos. 1 and 2, were framed, which are as under:-
(1) Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP
(2) Whether talbs were made in accordance with law? OPP Parties were put to trial. The appellant himself appeared as PW-3, and also examined Zafar Ahmed (PW4), who disclosed the sale to him and Bahadar Khan (PW-6), in whose presence, he learnt about the sale and made the first talb further certain documentary evidence was brought on the record to establish the right of pre-emption. As against the above, the respondent examined Muhammad Safdar- as DW-1, from whom, Muhammad Zafar claims to have attained the knowledge of the sale. He has denied of disclosing the sale to Zafar (PW-4) and also stated that the plaintiff knew about the sale, which was earlier offered to him, but he declined.
DW-29Sibghat Ullah and DW-3, Ashiq Hussain, have deposed almost to the same effect. On the issue about the right of pre-emption, learned Civil Judge, on the basis of the record, has come to the conclusion that the respondent has failed to prove being a co-sharer of the khata, but while holding the right of pre-emption as being shaf-i-sharik and shaf-i-khalit qua a part of the land is proved, decreed the suit to the extent of 53 kanals and 14 marlas. The relevant para of the judgment of the learned Civil Judge in this behalf, reads as follows:-- "These khasra numbers are adjacent to the land of the plaintiff, while Khasra Nos. 66, 480, 184 are not adjacent to the land of the plaintiff. Measurement of the land of Kasra Nos. 1376, 1377 to 1382, 1385 and 1383 comes to 53 kanals, 14 marlas. To this extent, plaintiff has superior right to purchase the land qua the defendant while to the extent of landed property situated in Khewat No. 51, Khasra Nos. 66 and 480, he has no pre-emptive right. Similarly, no land of plaintiff is adjacent to khasras plaintiff has no superior right. Issue accordingly is decided in favour of the plaintiff."
As mentioned earlier, the suit was partly decreed and the corresponding sale price was directed to be paid by the respondent within one month from the date of the decree; the appellnt challenged this judgment and decree in appeal, but withc any success.
3. Learned counsel for the appellant contends that the respondent has failed to prove talb-i- muwatihbat for the reason that Muhammad Nawaz, the other person allegedly present at the time, when Zafar Ahmed (PW-4) informea the respondent about the sale, has not been produced. It is also submitted that Safdar Ahmed, from whom, Zafar PW-4, claims to have attained the knowledge of sale, has appeared as DW-1, and in clear and unequivocal terms has mentioned that he never informed the PW-4 about the sale, therefore, the entire story of learning the sale and the making of talb-i-muwathibat is a concoction. It is also submitted that the Courts below have not accepted the claim of the respondent regarding the whole of the land measuring 81 kanals and 14 marlas, rather only to the extent of 53 kanals and 14 marlas, therefore, in such a situation, the suit of the respondent is hit by the rule of partial pre-emption. It is further contended that in the notice of talb- i-ishhad, the respondent has not stated of having any right of pre-emption on the basis of being shafi khalit and shafi jar but it is only on the basis of shafi sharik, which the respondent has failed to prove in the trial, resultantly, the suit in such circumstances, should have been dismissed. It is also argued that in the plaint, the respondent has not mentioned that he is shafi kahlit and shafi jar of the property and therefore, once his claim about shafi sharik has been rejected, the suit could not have been decreed, as no one can be allowed to succeed on the basis of the claim beyond the scope of his pleadings.
4. I have heard learned counsel for the parties. As far as the question about the partial pre-emption is concerned, suffice it to say that the respondent has preempted the whole of the land, however, on account of lack of proof, his right regarding the total land is not established and the Trial Court has granted him a decree of the lesser area, thus the rule of partial pre-emption shall not be applicable.
5. As regards the argument that Muhammad Safdar (DW-1) has deposed of having never informed Zafar Ahmed (PW-1), it may be mentioned that from the cross-examination of Safdar, it has been proved that he is inimical towards the respondent on account of a criminal case got registered against him by the respondent; his statement has been disbelieved by the two Courts below, whereas those of the respondent's witnesses, have been believed. Obviously, it is the realm of the Court of facts, to appraise and appreciate the evidence, and when no misreading and non-reading or preversity of reasoning has been shown, such finding cannot be interfered in the second appeal. I am also not inclined to draw an adverse inference against the plaintiff, for the non-examination of Muhammad Nawaz.
6. For the question that the respondent in the notice of talb-i-ishhad has not mentioned of his being shafi khalit and shafi jar, suffice it to say that there is no requirement of law that such a fact must be mentioned in the notice. It is only the right of pre-emption, which should be - asserted and propounded by a pre-emptor and not the basis thereof. Rather, it is in the plaint that the pre- emptor should state the nature/basis of his right and to prove the same through evidence, in order to get a decree. I have checked the plaint, and in para 4 thereof, it is clearly mentioned that the plaintiff is asserting his pre-emption cause on account of all the three counts, therefore, the submission has no force.
In the light of above, I do not find any merit in this appeal, which is hereby dismissed.
7. At this stage, the learned counsel for the appellant has made an offer that without prejudice to his right to challenge this judgment further, he has no objection, if the suit of the respondent is decreed for the total land for the price of Rs. 28,00,000/- plus the expenses incurred by the appellant for the completion/registration of the sale-deed. This offer has been accepted by Syed Najam-ul-Hassan Kazmi, learned counsel for the respondent.
8. Therefore: on account of the above, the judgments and decrees of two Courts below, are modified and a decree is passed in favour of the respondent and against the appellant, for the entire suit land on the payment of Rs. 28,00,000/- plus Rs. 1,40,072/- (the expenses incurred by the appellant on account of the purchase of stamps and registration fees, etc.). Thus the respondent, after deducting the amount of zar-e-soem amounting to Rs. 9,33,334/- which has been deposited by him with the Trial Court, shall deposit the balance amount of consideration and the expenses i.e. Rs. 20,06,738/- with the Trial Court, within three months from today, otherwise his suit, shall stand dismissed without any further recourse to the Courts.
As regards the request of Syed Najam-ul-Hassan. Kazmi, learned counsel for the respondent to grant mesne profit, which according to him, was a condition attached while passing the order dated 10.9.2004 on C.M. No.' 1/2004 at the time of suspension of the operation of the decree, suffice it to say that in the facts and circumstances of the case, I do not find that the respondent is entitled to any mesne profit, particularly, because taking the benefit of the same order, the respondent also did not deposit the balance of the pre-emption money and also in view of the offer made by the appellant for giving the whole land, which has been accepted by the respondent, the scenario has changed. .