On the basis of sale-deed dated 1.12.2001, suit land measuring 10 marlas, bearing Khasra Nos, 947 and 948, situate in Mauza Rajar, Tehsil and District Charsadda, owned by Ajmal, was purchased by Ibadullah, vendee-defendant, for an ostensible sale consideration of Rs, 70,000/-.
2. Sher Afzal Khan plaintiff, feeling aggrieved, instituted suit to enforce his right of pre-emption on the ground that he had preferential right of pre-emption in respect of suit land qua the vendee- defendant, who was devoid of these qualifications. He also maintained that the amount of Rs,70,000/- was fictitiously inserted in the sale-deed in order to frustrate his right of pre-emption.
The suit was resisted on all grounds, legal as well as factual and the amount of Rs, 70,000/- was stated to have been fixed and paid in good faith as market price of the demised land. Out of the pleadings of the parties, relevant issues were framed and after recording such evidence as the parties wished to adduce, learned Civil Judge, Charsadda decreed the suit on payment of Rs, 70,000/- as market price of suit land, by his judgment and decree dated 20.10.2004. An appeal was preferred thereagainst, qua market price of suit land, which was accepted by learned Additional District Judge, Charsadda by judgment dated 29.1.2005 and an amount of Rs, 8,305/- was fixed as sale price of the land in question.
3. Ibadullah has filed instant civil revision under Section 115 CPC to call in question the judgment and decree dated 29.1.2005.
4. I have heard at length S.M. Attique Shah, Advocate for the petitioner and Mr. Zia-ur-Rehman, Advocate for the respondent in the light of the material on the record.
5. Learned counsel for the petitioner confined his arguments to Issue No, 9, relating to market price of suit land and attempted to argue that sufficient material was available on the file to prove that suit property was purchased in consideration of Rs, 70,000/- and the learned appellate Court had no justification to take contrary view and reverse the finding of the learned trial Court on Issue No,
9. The learned counsel maintained that finding returned on Issue No, 9 suffers from the vice of mis- reading and non-reading of evidence and cannot be allowed to remain intact. To supplement the contentions, reliance was place on Feroz Khan petitioner vs. Haji Abdul Salam and another respondents (1984 CLC 974 Peshawar), Noor Khan and others, Appellants vs. Muhammad Hayat Shah and others respondents (1983 CLC 2520 Lahore) and Abdul Akbar petitioner vs. Fazal, Mehmood and two others respondents (1990 M LD 1019 Peshawar).
6. Having adjudged the matter from all angles with reference to the evidence on the record, I am of the view that the finding given on Issue No, 9 by the learned appellate Court is flawless and is not open to legitimate exception. The petitioner has not been able to satisfactorily prove that suit land was in fact purchased in consideration of Rs, 70,000/ and this amount was actually paid by the vendee defendant to the vendor. The sale-deed in question dated 1.12.2001 has not been satisfactorily proved. Abbas, Kausar, Amir, Shah Afzal, Ziarat and Zahir etc. witnesses to the deed and subsequent receipts regarding payment of price of suit property, have not been proved. No reasons for withholding these witnesses have been given. It is well settled principle of law that if a best piece of evidence is available by a party, then it is presumed that the said party has some sinister motive behind it and a presumption under illustration 'g' of Article 129 of Qanun-e- Shahadat Order can be drawn that had the said evidence been produce, it would have not been favourable to the party concerned. The `ausat yaksala' (Ex. PW. 1/6) prepared by Patwari Halqa, has been rightly taken into consideration and made basis of the price of suit land. The mere assertion of the learned counsel for the petitioner that the impugned finding has been recorded in a mechanical manner without application of judicial mind, without a positive attempt on his part to substantiate the same is of no consequence. The case law produced by him is distinguishable and speaks of the different situation. It is of no help to him.
7.In the wake of above discussion, I find that judgment of the learned Additional District Judge is well-reasoned and suffers from no legal or factual infirmity calling for interference of this Court in its revisional jurisdiction under Section 115 C.P.C. The revision petition is dismissed with no order as to costs.