' This judgment shall decide C.Rs. Nos.927 and 928 of 2002 as common questions are involved.
2. The facts are common except that in the matter of C.R. No.927 of 2002 the suit-land was purchased by the respondents for a sum of Rs.90,000 vide Mutation No.634 attested on 18-7-1996 while in the matter of C.R. 928 of 2002 the suit-land was purchased by the respondents vide Mutation No.403 attested on 18-7-1996. The consideration noted in the first case is Rs.90,000 while in the second case it is Rs.50,000. Both the suits were filed on 7-10-1996. The petitioner claimed to be co-sharer, owner of adjacent land and sharing common means of irrigation. Talbs were pleaded. The respondents while denying the said allegations pleaded that in fact the petitioner had first entered into an agreement with the vendor for sale for the said land but later he could not perform his part of agreement and then the land was purchased by the respondents. Issues were framed. Evidence of the parties was recorded. The learned trial Court found that the petitioner has a superior right of preemption, that the said amount in the mutation were in fact paid by the respondents as price to the vendor. However, it was found that the Talbs had not been performed in the manner prescribed and on the basis of the same findings it was held that the petitioner is estopped from filing the suits. Both the suits were accordingly dismissed vide judgment and decree, dated 21-7-1999. The first appeals filed by the petitioner were dismissed by a learned Additional District Judge, Bhalwal, on 10-4-2002.
3. Learned counsel for the petitioner contends that the learned Courts below have misread the evidence on record and have opted to proceed on conjectures while the learned Additional District Judge has laid down a rule which is not warranted by law inasmuch as he has posted the petitioner with the knowledge of the sale within 14 days of the same. Learned counsel for the respondents, on the other hand, while agreeing that the reasoning recorded by the learned Additional District Judge may not be correct, vehemently contends that the petitioner being owner of the adjacent property and vendor being his first cousin it is to be presumed that he had knowledge of the same. Further contends that informer i.e. P.W.2 stated in cross-examination that notice was served 1-1/2 months after the receipt of information which places date of knowledge much prior to the one claimed in the plaint, thus, rendering the Talb void. Learned counsel has also asserted that this Court should not interfere in the concurrent findings recorded by the learned Courts below.
4. I have gone through the records of both the, cases with the assistance of the learned counsel for the parties. It will be seen that it is matter of Talb-i-Muwathabit which is being agitated before this Court. Now in both the plaints it has been stated in para.2 thereof that the sale was kept as a secret. The provisions of section 31 of the Punjab Pre-emption Act, 1991, were not complied with and that the petitioner came to know about the sale on 19-8-1996 through Fazal Muhammad when Allah Bakhsh was present and he immediately made the Talb. Now in both the cases the petitioner appeared as P.W.1 to state in accordance with said pleadings. He did state that Fazal Muhammad was son-in-law while Allah Bakhsh was a collateral and the vendors are his first cousin. He denied that he had entered into an agreement with the vendors. P.W.2 is Fazal Muhammad while P.W.3 is Allah Bakhsh. Both of them have supported the said pleadings of the petitioner and his statement in the witness-box. Ghulam Akbar respondent appeared as D.W.1 in both the cases to state that the petitioner had entered into agreement with the vendors. He had paid earnest money as well but could not pay balance. Ahmad Yar D.W.2 appeared in both the cases to prove the payment of price. He further stated that the agreement was entered into between the petitioner and the vendors but could not be performed because of non-payment of the price. Suggestions to the contrary were denied by both the witnesses.
5. To my mind, nothing derogatory to the said pleadings or evidence of petitioner has come on record in the cross-examination or rebuttal. Regarding the contentions of the learned counsel that since he was owner of the adjacent land he must have known about the sale. The plea would have been attractive in case the respondents had come out with the version that they had taken possession of the land under the sale but this is neither their plea nor is there any evidence and it has certainly not been suggested to the petitioner that the possession had been taken over under the sale. On the other hand, the admitted position is that the sale was made from a joint Khata and the petitioner is one of the co-sharers. As to the relationship between the vendors and the petitioner the same also does not at all raise inference of knowledge in the absence of any evidence that the vendors had informed the petitioners about the sale in favour of the respondents. So far as the said matter of statement of P.W.2 informer is concerned that after 1-1/2 months of knowledge they went to the Court for getting notices scribed, is concerned, nothing turns on the same. Event took place in August, 1996, whereas the witness was examined in April, 1999 and was stated to be age of 65 years. Besides the contention looses sight of the fact that the said period of time takes us back to a point before attestation of the sale mutations.
6. Now learned trial Court has proceeded to hold that the petitioner obtained copy of mutation on 19-8-1996 i.e. The day when Talab was performed. Learned trial Court has then proceeded to observe that normally application for obtaining a copy is made some day prior to receiving the same. To my mind, the observation is baseless. The mutation is copy of "Part Patwar" and was delivered by the Patwari to the petitioner on 19-8-1996. The learned Trial Court also failed to take note of the fact that the petitioner while in the witness-box was not confronted or called upon to explain regarding obtaining the said copy. Learned trial Court has then further indulged in conjecture in the matter of determining "Chah Wala" (tea time). The fact remains that all the witnesses are consistent that it was at 9 a.m. That the information was laid before the petitioner on the said date. Learned trial Court has then stated that since mutation was attested in the open assembly it is impossible that the petitioner did not have its knowledge.
7. Learned Additional District of Judge has taken the matter further. He says that the mutation was attested on 18-7-1996 and public notice must have been displayed by the Revenue Officer and petitioner must have been deemed to have got the knowledge on or before 1-8-1996. I have noted with some concern the deliberate misreading reflected in this judgment inasmuch as the learned Additional District Judge has observed that the petitioner had not asserted specific plea in the plaint that the said notice was not given or displayed by the Revenue Officer within 14 days. I have already reproduced above the relevant portion of the plaint wherein it has been specifically asserted that the provisions of section 31 of the said Act had not been complied with. This being a negative statement. It was for the respondents to have asserted and to' have proved that the provisions were complied with. There is neither plea nor evidence in this behalf on the file. In the said judgment in the case of Muhammad Ramzan v. Lal Khan (1995 SCM R 1510) their Lordships have observed that there is no allegation in the plaint that a notice had not been displayed.
8. For all that has been discussed above, I find that the learned Courts below have acted with material irregularity in exercise of their respective jurisdiction inasmuch as they have misread the pleadings as well as evidence on record while passing the impugned judgments and decrees. Both the civil revisions are accordingly allowed. The impugned judgments and decrees passed by both the learned Courts below are set aside. In the matter of C.R. No.927 of 2002 the suit of the petitioner is decreed subject to deposit of Rs.95,410 (Rs.90,000 as price and Rs.5,410 as mutation charges) in the learned trial Court on or before 31-5-2004. In case the petitioner fails to make said deposit after adjustment of any amount that might have been earlier deposited on or before the said date, his suit shall stand dismissed with costs.
9. In the matter of C.R. No.928 of 2002 the suit of the petitioner is decreed subject to deposit of Rs.53,010 (Rs.50,000 as price and Rs.3010 as mutation charges) in the learned trial Court on or before 31-5-2004. In case the petitioner fails to make the said deposit after adjustment of any amount already deposited on or before the said date, the suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs.