MUHAMMAD KHALID ALVI, J.--- Today only C.M. No. 1 of 2005 and C.M. No. 2 of 2005 are listed for hearing. The said applications are for the grant of interim relief and the other is for vacation of interim relief already granted by this Court. Instead of going into merits of these applications the learned counsel of the parties were asked as to whether they are ready to argue the main case, the answer was in the affirmative, therefore, the main case is being taken up for final arguments.
2. Brief facts of the case are that the shop in dispute was purchased by the appellants through registered sale-deed dated 11.9.2000. The respondent in order to preempt the sale filed a suit and claimed that he acquired knowledge of the sale on 5.12.2000 and immediately performed Talb-e- Muwathibat. Learned counsel for the appellants has restricted his arguments only with respect to the performance of Talb-e-Muwathibat by the respondent/plaintiff, therefore, these are the only relevant facts for this case. Learned Trial Court after recording evidence of the parties decreed the suit vide judgment and decree dated 31.7.2004. Appellants' appeal was also dismissed vide judgment and decree dated 12.2.2005. Both these judgments and decrees are being assailed through the instant second appeal.
3. It is contended by the learned counsel for the appellants that they had specifically taken up the plea in para 2 of the preliminary objections of their written statement that possession of the shop in dispute was taken over by them or 10.3.2000 when the bargain was struck between the parties. The shop in question being adjoining, wall to wall with the shop of the respondent on the basis of which he has claimed his superior right, the fact of sale could not have escaped from the knowledge of the respondent on the said date i.e. 10.3.2000, therefore, the knowledge claimed by the respondent on 5.12.2000 and performance of Talb-eMuwathibat is not in consonance with law. It is also argued that the fact of taking over of possession was specifically put to PW-3 and PW-5 but they have shown their ignorance about the same. It is further added that this fact was again reiterated by one of the appellants Younas while appearing as DW-1 in his examination-in-chief but the same was not subjected to cross-examination by the other side. In support he has relied upon NLR 2005 Civil 1 and NLR 2005 Civil 301. With reference to cross-examination of PW-3 it is submitted that the said witness has admitted that he might have lied with respect to some facts, therefore, statement of such witness could not be formed basis of decision, being not a truthful witness. Relied on NLR 2005 Civil 174. It is lastly argued that appellants had spent a huge amount on the incidental charges on the sale bargain to which they are entitled. At this stage, learned counsel for the respondent in consultation with his client has shown grace by offering a sum of Rs. 70,000/- in this behalf, which is acceptable to the learned counsel for the appellants.
4. On the other hand, learned counsel for the respondent while referring to the sale agreement dated 10.3.2000 produced by the appellants before this Court contends that according to said document only a sum of Rs. 2,00,000/- was paid as earnest money and the balance amount of Rs.
10,05,000/- was to be paid on 10.9.2000 and the possession was also to be delivered at the time of registration of the sale-deed. He has also referred to the impugned sale-deed (Exh.P/7) to contend that reading said document also indicates that sale consideration was paid on the date of registration of the sale-deed and possession was also delivered. Therefore, it is concluded that possession under the sale was never obtained by the appellants as claimed by them on 10.3.2000.
5. I have considered the arguments of the learned counsel for the parties.
6. The agreement to sell although was not part of the record of the Trial Court or the learned Appellate Court but has been placed on record of this appeal by appellants by their choice. The said document is also not disputed by the learned counsel for the respondent. First two lines of the said documents are relevant for the purposes of this case which are reproduced as below:-- (URDU)
The appellants have placed this document on record by their choice and they being party to the said document cannot wriggle out from the contents of the same. The said document clearly contains the fact that possession was not delivered to them on 10.3.2000 as is being asserted by the learned counsel for the appellants. Therefore, in view of this evidence alongwith the entries made in the registered sale-deed Exh.P-7 that sale consideration was paid and possession was delivered without specifying the date or period concludes that possession was not delivered to the appellants on 10.3.2000, therefore, respondent could not be presumed to have acquired knowledge on 10.3.2000. The judgment referred by the learned counsel for the appellants i.e. NLR 2005 Civil 301 is also distinguishable and lays down a different preposition of law. In the cited judgment, it was declared that Talb-e-Muwathibat performed by a pre-emptor before the actual sale but having acquired knowledge of sale was valid. Whereas the question involved in the instant case presumably would be that if Talb-e-Muwathibat is not performed despite. Having acquired knowledge but before actual sale, would the pre-emptor lose his right of preemption. But since as held above the possession was not taken over by the appellants on 10.3.2000 even this question would not arise in the present case. The other judgment NLR 2005 Civil 1 would also be not applicable in view of the findings recorded above with regard to possession.
7 The result of the above finding is that the appeal is dismissed with a modification that respondents shall deposit a sum of Rs. 70,000/- towards incidental charges within two months from today in addition to the sale consideration already determined by the Courts below if not already deposited. In case respondents fail to make deposit as directed, their suit shall stand dismissed. No order as to costs.
R.S.A. Dismissed Accordingly.