' This is a revision petition against the judgment and decree dated 6-5-1996 passed by the learned Additional District Judge, Mianwali whereby he had accepted an appeal against the judgment and decree dated 5-12-1994 passed by Mr. Sana Ullah Malik, Civil Judge 1st Class, Camp at Esa Khel and in consequence had decreed the suit for possession through pre-emption filed by the respondent/plaintiff in his favour.
2. The brief facts are that Ghulam Yasin, plaintiff/respondent filed a suit for possession through pre- emption against Faiz Muhammad, petitioner/defendant on the plea that the suit-land measuring 8 Kanals and 10 Marlas belonging to one Madad Khan son of Jehan Khan situated in Mauza Manda Khel, Tehsil Esa Khel District Mianwali was sold by him to the defendant for an amount of Rs.25,000 through Mutation No. 2576 attested on 17-8-1992. The plaintiff claimed that he had superior right of pre-emption qua the defendant as he was having common source of irrigation and joint passage qua the suit-land which was sought to be pre-empted and that he is also a Bannadar of the said land. The plaintiff also claimed that he had made the legal demands i.e. Talb-i-Muwathibat and Talb-iIshhad for exercising the right of preemption. He called upon the defendant a number of times to transfer the suit-land to him for the consideration of Rs.25,000. But he refused to do so and hence the suit.
3. The defendant controverted the plea of the plaintiff and on the basis of the pleadings of the parties the learned trial Court framed the following issues:-
(1) Whether suit is incorrectly valued for the purposes of court-fee and jurisdiction; if not, what is correct valuation? OPD
(2) Whether the plaintiff has got no cause of action? OPD
(3) Whether plaintiff has made valid Talbs to exercise his right of preemption as required by law?
OPP
(4) Whether plaintiff has got superior right of pre-emption? OPP
(5) Whether defendant is entitled to recover expenses incurred on the completion of sale? If so, to what amount? OPD
(6) Relief.
4. After recording the evidence of the parties, the learned Civil Judge vide his judgment dated 5-12- 1994 decided Issue No.1 against the defendant. Issue No.4, which relates to the superior right of the plaintiff was decided against the plaintiff and in favour of the defendant. Issues Nos.2 and 3 were also decided against the plaintiff and in favour of the defendant. Issue No.5 was however, decided against the defendant. In consequence of the findings on Issues Nos.2 and 4 the learned Civil Judge proceeded to dismiss the suit vide his judgment and decree dated 5-12-1994.
5. The plaintiff went up in appeal, which was accepted by the learned Additional District Judge, Mianwali vide his judgment and decree dated 6-5-1996. The learned Appellate Court set aside the judgment and decree of the learned trial Court and held that the plaintiff being Shafi Khalit has the superior right of pre-emption qua the defendant and hence it proceeded to decree the suit for pre-emption in favour of the plaintiff/respondent.
6. Aggrieved of the judgment and decree dated 6-5-1996 passed by the learned Additional District Judge, Mianwali the petitioner has come up in revision.
7. Arguments have been heard and record perused.
8. In this case from the side of the plaintiff two witnesses were examined i.e. P.W.1, Aziz Ullah who was a marginal witness of the notice and P.W.2, Zareef Khan who is the son and general attorney of the plaintiff. The plaintiff also produced in evidence copy of the Notice mark-A, copy of Jamabandi Exh.P.2, copy of the Khasra Girdawari Exh.P.4, Aks Kishtwar Exh.P.6, Fard Jamabandi Exh.P.7 and postal receipts Exh.P.8.
9. From the side of the defendant, D.W.1, Muhammad Hashim, who is the general attorney of the defendant, was examined and who denied that the plaintiff had the superior right of pre-emption.
10. So far as Issue No.3 is concerned, although the learned trial Court had not given any finding on the said Issue, the learned Appellate Court found the said issue in favour of the plaintiff and held that necessary Talbs had been made by the plaintiff before filing the pre-emption suit. P.W.1, Aziz Ullah in his statement deposed that when he came to know about the sale of the land he informed the plaintiff about the same and the plaintiff announced that he would file the suit for pre-emption.
Thereafter he and Muhammad Khan came to Mianwali Kutchery where a notice was sent to the defendant. He as well as Muhammad Khan had thumb-marked the notice Mark-A and it was also thumb-marked by the plaintiff. From the side of the plaintiff, P.W.2 also deposed on the same lines.
Postal receipts were also produced in evidence as Exh.P.8. Thereafter the plaintiff had filed the present suit. Hence it stood established that the requisite Talbs had been made. The finding of the learned Appellate Court on Issue No.3 is an order and there is no justification for interference with the said finding.
11. Now we come to Issue No.4, P.W.2 is the son and general attorney of the plaintiff. He stated that the right of preemption of his father i.e. The plaintiff was superior because they had a common source of irrigation and a joint passage qua the suit-land. However, he did not give any further detail in that respect. During cross-examination he denied that source of irrigation or the passage was not joint. From the other side, D.W.1, Muhammad Hashim, who is general attorney of the defendant stated that plaintiff's land did not have a joint Banna with the land in dispute. While discussing Issue No.3 the learned Civil Judge had observed that the plaintiff had miserably failed to prove his right of pre-emption qua the vendee/defendant. However, the learned Additional District Judge in the impugned judgment observed that so far as the right of pre-emption on the basis of source of irrigation claimed by the plaintiff was concerned, he had not said a single word about the same and no evidence had been produced to prove the same. He also observed that the documents Exh.D.2 and Exh.D.5 indicate that the plaintiff's land (who claims to be the owner A of the land falling in Khasra No.1571/1) is not contiguous to the disputed land situated in Khasra Nos.1571/4 and 1571/5. The learned Additional District Judge, however, observed that the plaintiff has claimed that he has common passage i.e. The path for his land (with the suit-land) and his son while appearing as D.W.2 claimed that the passage of (their land is common with the suit-land and that aspect of the superior right of pre-emption has not been denied by the defendant. But the solitary witness of the defendant i.e. D.W.1, who is son of the defendant has stated that the Banna of the land of plaintiff is not adjacent to the Banna of the suit-land but the defendant has failed to deny that the plaintiff had a common passage for his land qua the suit-land. The learned Additional District Judge observed that none of the parties has produced any documentary evidence in this regard but there is no justification to disbelieve the plaintiff that he has common passage for his land with the suit-land. He, therefore, held that being Shafi Khalit the plaintiff has the superior right of pre-emption qua the defendant.
12. After going through the evidence on the file it appears that the said finding of the learned Appellate Court is the result of misreading of evidence. It was for the plaintiff to prove his claim of being a Shafi Khalit and in case he has not produced any documentary evidence in that respect.
Admittedly the claim of the plaintiff in that respect is based on merely the statement of his son and general attorney P.W.2 and which finds no corroboration from any other evidence on record.
Besides that, it was held in PLD 2003 Lahore 413 that not its user but ownership in passage would equip a person with superior right of preemption being Shafi Khalit. In the aforesaid authority it was held that a pre-emptor could not claim superior right of preemption on proof of mere fact that both lands were situated on a thoroughfare. In the said authority a reference was made to a judgment of the Honourable Shariat Appellate Bench wherein it had been concluded that the owner of a property at a thoroughfare which runs through and through and is liable to be used by the public, cannot claim superior right of preemption qua the sale of common property abutting on the said thoroughfare and it was ruled that it was not user but the ownership in the passage which equips a person having share in the passage, with superior right of pre-emption being Shafi Khalit.
13. In this case the plaintiff has nowhere claimed the ownership in the common passage and hence in the light of the aforesaid authority he cannot claim to be a Shafi Khalit. Besides that, other than the bald statement of P.W.2 regarding a joint passage, there is no other evidence on record to support the claim of the plaintiff in that respect. As such, he has not succeeded in proving his superior right qua the defendant. The finding of the learned Additional District Judge in that respect on Issue No.4 is clearly the result of misreading of evidence and hence the same is set aside and Issue No.4 stands decided against the plaintiff/respondent.
14. In consequence of the above finding on Issue No.4, the revision petition is accepted, the judgment and decree passed by the learned Additional District Judge dated 6-5-1996 is set aside and that of the learned Civil Judge dated 5-12-1994, whereby he had dismissed the suit for preemption , is restored.
15. Under the circumstances of the case, the parties are left to bear their own cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.