JAWWAD S. KHAWAJA, J.--- The case has been repeatedly called at intervals. None has appeared for the respondent although the name of his learned counsel is duly printed in the cause list. He is, therefore, proceeded against ex parte.
2. This revision petition impugns the concurrent findings of the learned Trial Court dated 10.5.1999 and of the learned Appellate Court dated 11.12.2000.
3. The petitioner/plaintiff filed a suit seeking possession through pre-emption, of suit land measuring 2 kanals, 3 marlas. The sale of the suit land was effected vide Mutation No. 1294 sanctioned on 25.3.1996. It was the petitioner's case that she had a superior right of pre-emption.
This claim was based on the fact that the land sold was comprised in Khasra No. 88 in which she was co-owner alongwith her brother Asghar, who had sold the suit land. She also claimed that she was co-owner of adjoining Khasra Nos. 81 and 87. The petitioner/plaintiff further averred that the consideration for the sale was Rs. 40,000/- and the figure had been exaggerated to evade pre- emption.
4. The suit was resisted by the respondent/defendant, who denied that the petitioner had a superior right of pre-emption. He moreover claimed that the sale consideration was Rs, .1,70,000/- and also that the petitioner had failed to fulfill the requirements of talabs. - 5. The learned Trial Court framed as many as 16 issues including that of relief. However, issues Nos. 12, 13 and 14 are relevant for the purpose of the present petition. These issues were framed in the following terms:- "(12) Whether land in dispute was purchased by defendant secretly for Rs. 40,000/- vide Mutation No. 1294, dated 25.3.1996 but to stop exercise of pre-emption right by plaintiff, the ostensible and nominal sale price Rs. 1,40,000/- was entered in mutation, whereas, the market value and the bona fidely fixed price of land in dispute is not more than Rs. 40,000/? OPP.
(13) Whether plaintiff performed talbs according to law, in light of detail as mentioned in paras Nos.
3, .4 of plaint? OPP.
(14) Whether plaintiff has superior right of pre emption than defendant on the base of, grounds as mentioned in para 5 of plaint? OPP."
6. The learned Courts below have concurrently held that the petitioner did not have a superior right of preemption and that he had failed to perform the requisite talabs. As to the consideration for the sale, the learned Courts below have held that the same was Rs. 1,32,000/- as mentioned in Mutation No. 1294
7. Learned counsel for the petitioner has argued that the learned Courts below have not cared to read the entire evidence on record and even otherwise, the decision,. Particularly in respect of issue No. 13, is entirely conjectural.
8. I have considered the record, with the assistance of learned counsel for the petitioner. Firstly, I take up issue No. 14 for consideration. From the jamabandi (Ex.P-7) and khasra kishtwar (Ex.P-11), it is established that the petitioner, who is the sister of the vendor, is co-owner of Khasra No. 81, which is contiguous to Khasra No. 88 in which the disputed land is comprised. Even Muhammad lqbal respondent/defendant, who appeared as DW-1, admitted in his cross- examination that the plaintiff was the sister of the seller Asghar and she was a co-owner of the khata. From this documentary' and oral evidence, the superior right of pre-emption of the petitioner is clearly established. The learned Courts-below have not read or considered the above evidence. In the circumstances, the finding of the learned Courts below on issue No. 14 is not legally sustainable. The said finding is reversed.
9. Coming next to* the question of tala' bs, the petitioner has produced the witnesses, namely, Abdul Aziz (PW.6), who informed her of the sale in the presence of Yousuf (PW.7) and her husband Fazal Elahi. She herself appeared as PW.5. There are no material inconsistencies-or contradictions in the testimony of these witnesses. Each of them has proved the talb-e-muviathibat on 11.5.1996.
Furthermore, through the testimony c'' PW.6 and PW.7, the giving of the notice of talb-e-ishhad is also proved. The fact thatthe notice of talb-e-ishhad is also proved. The fact that the notice of talb-e-ishhad was given, is also proved through The Postal Clerk, Muhammad Shafi, who appeared as PW.1 and proved the postal receipt (Ex.P-1).
10. At this juncture, it is also relevant to note that the respondent/defendant appeared as his sole witness. He denied having received any notice of talb-e-ishhad. The petitioner, through her own testimony and the evidence of the Postal Clerk (PW,1) proved the acknowledgement receipt signed by the respondent/defendant, whereby he had acknowledged receipt of a registered letter. The learned Trial Court made a _comparison of the signatures on the acknowledgement receipt (Ex.P- 2) and the signatures-of therespondent/defendant on the written statement and came to the conclusion that both signatures were identical. In the circumstances , the issuance of notice of talb-e-ishhad was also proved on record.
11. The learned Courts below have proceeded on premises , which are flimsy and conjectural, while deciding issue No. 13 against the petitioner/plaintiff. It has, firstly, been noted by the learned Trial Court that PW.6 and PW.7, namely, Abdul Aziz and Muhammad Yousuf respectively, are closely related to the plaintiff and, therefore, a doubt has been cast on their testimony. Mere relationship does not render-the testimony of a witness doubtful if his testimony otherwise is not undermined in cross-examination. The learned Trial Court has also come to the conclusion that Abdul Aziz did not thumb mark the notice of talb-e-ishhad (Ex.P-3) and the thumb mark appearing on this document was affixed by someone else. There is no evidence, at all, to support this conclusion. Abdul Aziz himself appeared as PW.6 and testified that he had thumb marked the notice (Ex.P-3). If, at all, the respondent/defendant wished to establish that the notice (Ex.P-3) had not 'been thumb marked by Abdul Aziz, he could have produced evidence for this purpose. He has not done so. The conclusion, therefore, reached by the learned Trial Court, is unfounded.
12. The learned Trial Court also observed that PW.7 had stated that the witnesses had signed the notice of talb-e-ishhad, while Abdul Aziz (PW.6) had said that he had thumb marked it. This itself is not a material contradiction, particularly when the two witnesses have otherwise given evidence which is consistent and their credibility has not been shaken. Finally, while dealing with the question of talabs, the learned Trial Court has not proceeded on conjectures while holding that the petitioner became aware of the sale because the respondent had taken possession of the suit land at the time of the sale. There is no evidence to ,justify this conclusion.. On the other hand, learned counsel 'for the petitioner, with justification, pointed out that the land in question was only 2 kanals, 3 marlas and was already cultivated at the time of the sale. It was part of a joint khata in which there was no means of taking separate possession of the disputed land prior to cultivation of the crop. Considering the aforesaid, the decision of the learned Courts below in respect of talabs is also not legally warranted. .
13. Coming lastly to issue No 12, the petitioner had asserted that the sale -consideration was Rs.
40,000/- only. To support his content he had produced the aust bai (Ex.P-2) for the previous year which comes to an average sale price of Rs. 22,136/- per kanal. On this basis, it was contended that the total sale price was not more than Rs. 48,000/-. The respondent claimed that the sale consideration Rs. 1,70,000/-. The mutation of sale mentioned the price of Rs. 1,32,000/-. It is this amount which has been declared to be the consideration for the sale fixed bona fide between the vendor and the respondent. Learned counsel for the petitioner, however, drew my attention to the testimony of the respondent/defendant, who appeared as DW-1. In his cross-examination, he has himself admitted that the vendor Asghar had demanded Rs. 2,000/- per marla to which he had agreed. If this statement is accepted, the total consideration of the sale comes to Rs. 86,000/-. In the light of this admission, I do not see how the learned Appellate. Court relied on the sale consideration mentioned in the sale mutation. In the circumstances, the decision of the Courts below on issue No. 12 is modified. It is held that the sale consideration was Rs. 86,000/- only.
14. In view of the above discussion, the impugned decrees are ,set aside. The suit of the petitioner/plaintiff is decreed, subject to deposit of Rs. 86,000/- (less amounts, if any, already deposited) with the learned Trial Court within 30 days from today.
Civil Revision Allowed.
20051445 [Lahore] Present: MUHAMMAD KHALID ALVI, J.
Muhammad Bashir Versus Muhammad Nazir and others Civil Revision No. 107 of 2005, decided on 9th May, 2005.
Civil Procedure Code (V of 1908)- ---S. 115, 0. XXXIX, Rr. 1, 2---Suit for partition-Temporary injunction of-Question of---Civil revision p.Etition in High Court---Held: Jamabandi for the year 1998-99 placed on record; prima facie indicated that petitioners were co-shaiers in the disputed khara numbers,However, if respondents felt the necessity of raising any construction over property in dispute in their possession, they might do so on their .Own risk and cost---Any construction raised by respondents after institution of 'suit would not prejudice rights of petitioner in any at the time of final partition---.
(Para 5)
Application for interim restrained order in suit for partition disposed of with observation that respondent may raise construction on their own risk and cost.
For the Petitioner: Liaqat All Butt, Advocate.
For the. Respondents Nos.
1. To 7, 9 and 10: Ch. Muhammad Rafique Warraich, Advocate.
Date of hearing: 9th May, 2005.
MUHAMMAD KHALID ALVI, J.--- Brief facts of the case are that petitioner filed a suit for partition of joint Khasra Nos. 6,87, 688 and 689 falling in Khewat No. 170, Khatuni No. 970, Khewat No. 625 Khatuni No. 1058 according to Jamabandi for the year 1998-99 Kalra KaIan. Alongwith the suit the petitioner also. Filed an application under Order 39, Rules 1 and 2, C.RC. Seeking restraint from raising further construction over the property in dispute. Respondents 'Nos. 8 to 10 made a statement before the Trial Court that they will raise construction at their own risk and cost, accordingly the learned Trial Court vide order dated 4.10.2004 dismissed the said application. The same was assailed by the petitioner through an appeal which was also dismissed vide order dated 27.10.2004.
2. - It is contended by the learned counsel for the petitioner that the petitioner is a co-owner of the property in dispute and without partition its nature should not be changed so as to prejudice the rights of the petitioner.
3. On the other hand, learned counsel for the respondents contends that respondents have disputed the title of the petitioner and the respondents being absolute owners are entitled to raise construction of their choice over the property in dispute.
4. I have considered the arguments of the learned counsel for the parties.
5. Jamabandi for the year 1998-99 placed on record, prima facie indicates that the petitioners are co-sharers in the disputed khasra numbers. In the circumstances, any change brought in the property in dispute can cause damage to the rights of the petitioner with respect to its partition.
However, if the respondents feel the necessity of raising any construction over the property in dispute in their possession, they may do so at their own risk and cost. However, any construction raised by them after the institution of the suit would not prejudice the rights of the petitioner in any manner at the time of final partition. With this observation, this petition stands disposed of.
2005 .C.L.R. 1447 [Lahore] Present: JAWWAD S. KHAWAJA, J. Irshad Hussain and others Versus Mst. Kaneez Fatima and others Regular Second Appeal No. 106 of 2000, decided on 13th April, 2005.
Civil Procedure Code (V of 1908)--- - --S. 100---Specific Relief Act, 1877, S. 42---Declaratory suit- - -Dispute qua title of---Appraisal of evidence--- Respondent/plaintiff's declaratory suit claiming title of land.In question was decreed by Trial Court but such determination was upset and suit stood dismissed---Regular Second Appeal thereagainst in High Court---Validity---Said pleas however, were extraneous to contents of plaint filed by appellants wherein there was no mention of any shamlat or permissive possession of respondents---Appellate Court below had justifiably concluded that like of respondents/defendants had matured through adverse possession---R.S.A.
Dismissed.
(Paras 2,3)
Title matured through adverse possession/R.S.A. Dismissed.
For the Appellants: Muhammad Farooq Qureshi Chishti, Advocate.
For the Respondents: Hafiz Khalil Ahmad, Advocate. Date of hearing: 13th April, 2005.
JAWWAD S. KHAWAJA, J.--- This Regular Second Appeal filed by the plaintiffs impugns the judgment and decree of the Court of first appeal dated 8.3.2000 whereby the decree of the learned Trial Court dated 13.12.1993 was set aside and the suit filed by the appellants/plaintiffs seeking declaration of title and possession of the suit property, was dismissed. The facts of the case have been elaborately set out in the appellate judgment and need not, therefore, be reproduced in extenso.
2. The entire documentary evidence comprising of the relevant revenue record shows that the respondents/defendants were in possession of the suit land since long, and were not paying any lagan to the appellants. The case being set up by the appellants before me is that the land was originally comprised in the shamlat and the appellants became owners thereof after the shamlat land had been partitioned. It was also argued on behalf of the appellants that the possession of the respondents/defendants was permissive as they had continued in possession after the partition of the shamlat. These pleas, however, are extraneous to the contents of the plaint filed by the appellants wherein there is no mention of any shamlat or permissible possession of the respondents. alp
3. In the foregoing circumstances, the learned Appellate Court has justifiably concluded that the title of the respondents/defendants had matured through adverse possession. Learned counsel for the appellants was not in a position to show the existence of any of the grounds mentioned in Section 100, CPC which would justify interference in the appellate decrees.
4. In the circumstances, this appeal is dismissed. R.S.A. Dismissed.