' IJAZ-UL-HASSAN KHAN, J---Through this Civil Revision Gul Sharbat Khan, plaintiff-petitioner has called in question the judgment and decree dated 15-4-2005, passed by the learned District Judge, Karak, whereby reversing the judgment and decree dated 7-7-2004 of the learned civil Judge, Karak, appeal of Zaeef Khan, defendant-respondentwas accepted and suit for possession through pre-emption was dismissed.
2. Shortly narrated the facts leading to the filing of instant civilrevision are, that Gul Sharbat Khan, plaintiff-petitioner had filed a suit on 23-12-2002, for possession through pre-emption against Zaeef Khan defendant-respondent, in respect of sale of land measuring 7 marlas bearing Khasra No,1638, situated in Mauza Karak, on payment of Rs,14,000. The plaintiff-petitioner claimed to have expressed his intention to pre-empt suit-land on gaining knowledge of suit transactionon 29-10- 2002, at 1.00 PM, in 'Patwar Khana' Karak. He also claimed to have fulfilled requirements of 'talbs'.
3. The said suit was contested by the defendant-respondent through written statement, wherein besides denying the alleged pre-emptive right of the plaintiff-petitioner, he also pleaded that no sale transaction had taken place and it was a 'family arrangement' for the purpose of resolving family disputes. In view of the pleadings of the parties, following issues were framed:--
(1) Whether plaintiff has got a cause of action?
(2) Is the suit against facts, based on mala fide and in fact no sale with respect to suit property has been taken place whatsoever?
(3) Whether the plaintiff is estopped to sue?
(4) Whether the suit in hand has been instituted by the plaintiff so as to tease them, therefore, defendants are entitled to receive special costs.?
(5) Whether plaintiff has got superior rights of pre-emption over the suit property?
(6) Whether the plaintiff has made compliance with three 'talbs' as prescribed under the law?
(7) Market value of the suit property?
(8) Whether the plaintiff is entitled to the possession of the suit property by means of pre-emption having Khata No,1638 measuring 7 Marlas, situated at Mauza Karak mutated through Mutation No,5512 dated 29-10-2002, sold for consideration of Rs,14,000 as prayed for?
(9) Relief.
4. At the conclusion of trial, learned Civil Judge, Karak, seized ofthe matter, after appreciating the material placed before him, proceeded to hold that plaintiff has successfully established his case.
Resultantly, suit was allowed by judgment and decree dated 7-7-2004. An appeal was preferred thereagainst before learned District Judge, Karak, which was accepted by judgment dated 15-4- 2005. The judgment and decree of trial Court was set aside and suit was dismissed, principally on the ground that factum of sale and passing of sale consideration has not been proved.
5. Appearing on behalf of the petitioner, Mr. Maazullah Barkandi, Advocate contended that the findings of the appellate Court suffer from the vice of misreading and non-reading of evidence on record and that the reasons given by the appellate Court while reversing Verdict of the trial Court, are not sustainable.
6. Mr. Hidayatuallh Khattak. Advocate, learned counsel for the respondent, on the other hand, contended that evidence produced by the petitioner regarding performance of 'talbs' is not only vague and ambiguous but is also not confidence inspiring. The learned counsel contended that in fact no sale transaction had taken place between the parties and it was a family arrangement, which was reduced into writing vide 'Iqrar Nama' dated 21-11-2002, which has been rightly taken into consideration and made basis of the impugned judgment of appellate Court.
7. I have considered the submission of the learned counsel for the parties and have also examined the record relied upon by the learned counsel for the parties and attached herewith. In the present case reliable evidence was produced by the petitioner to prove transmission of notice through registered mail and its receipt by the respondent. The trial Court had given lawful findings about 'talbs' and about superior right of preemption of the petitioner while decreeing the suit against the respondent. The appellate Court has reversed these findings for no lawful reason. The 'talb' has been proved by producing all the material witnesses and it is also in the evidence that the petitioner is 'Shafi Khalit' and Shafi Jar' in suit-land and has got preferential right of pre-emption as compared to the respondent, who is devoid of this qualification. Adverting to the alleged settlement deed dated 21-11-2002, I find myself in agreement with learned counsel for the petitioner that the said deed is an after-through and has been fabricated in order to frustrate pre-emptive rights of the petitioner. The alleged settlement deed cannot affect the nature of the sale mutation, while reversing the judgment of the trial Court. The submission of learned counsel for the respondent that factum of sale transaction has not been proved, is misconceived. Admittedly, the petitioner is participator in immunities and appendages of the suit-land qua the respondent, who is bereft of this qualification. It may be observed here that date of attestation of mutation is 29-10- 2002, while date of alleged agreement deed is 21-11-2002. The notice of 'Talb-iIshhad' was given on 2-11-2002 and suit was filed on 23-12-2002. There is a gape of about 20 days in execution of mutation and writing of deed, which is clearly indicative of the fact that deed was executed with sole purpose to defeat pre-emptive,right of the petitioner. The comparative approach of the two Courts below when considered in the light of the evidence on record objectively leads me to the conclusion that findings recorded by the trial Court on issues found in favour of the petitioner, Were consistent with the evidence on the record, whereas the approach adopted by the learned appellate Court was not based by the evidence and is unsustainable in law.
In view of the above, by setting aside the judgment of the appellate Court dated 15-4-2005, the judgment of the trial Court dated 7-7-2004 is restored. No order as to costs.