A Suit No, 270/1 was instituted by Muhammad Sultan Khan on 1.9.2000. It was alleged in the plaint that 14 and a half marlas land to the extent of 53/432 shares. out of 5 kanals 19 marlas land in Khasra No, 2207 situated in the area of Mauza Tanda of District Mansehra, according to Jamabandi for the year 1995-96 was sold vide Mutation No, 7006 attested on 29.4.2000 only for Rs, 25000/-. But the defendant refused to transfer the suit property to the plaintiff on receiving the actual sale amount. It was further contended that the plaintiff was informed at 5 p.m. (Asar time) at Bajna Stop Shinkidari by Momin Khan when Malang Khan was also present and the plaintiff made talb-i- muwathibat, and then sent notice to the defendant through registered A.D. cover which was duly scribed in the presence of Momin Khan and Malang Khan. The defendant contested the suit.
2. Another suit was instituted by Hajat Khan in which the market value of the suit property was shown Rs, 26000/-, the time of information was shown as 3 p.m. on 22.8.2000 and it was alleged that the defendant had wrongly mentioned amount of Rs, 72500./- in order to ward off the right of pre-emption of Hajat Khan. The defendant contested that said suit also.
3. The learned Civil Judge, Mansehra vide consolidated judgment in Suit No, 270/1 of 2000 of Muhammad Sultan (petitioner) and Suit No, 273/1 of 2000 of Hajat Khan (rival pre-emptor) dismissed both the suits. On Civil Appeal No, 3/13 of 2004 instituted on 8.1.2004 by Muhammad Sultan and Civil Appeal No, 56/13 of 2004 of Hajat Khan, the learned Addl. District Judge, Mansehra, vide his judgment and decree dated 15.2.2005, dismissed both the appeals. Hajat Khan did not come forward with a civil revision, and there is no need to discuss his case, while Muhammad Sultan filed this Civil Revision No, 132 of 2005 on the grounds mentioned in his petition.
4. Pre-admission notice was given to the respondent.
5. I heard the arguments of the learned counsel for the parties and perused the available record.
During the arguments, the case was admitted to full arguments, which were heard.
6. It is an admitted fact on record, through the statement of patwari halqa and the record produced by him, that Muhammad Sultan is owner of the property contiguous to the suit property, while respondent, Gohar Aman, has no right of pre-emption in respect of the suit property as he is a stranger in the area. This fact was accepted by the learned Civil Judge while deciding Issue No, 8.
This fact was not agitated before the learned appellate Court and, even, was not argued by the learned counsel for the respondent before me. It is, therefore, by now a proved fact that the petitioner has superior right of pre-emption as against the respondent in respect of the suit property.
7. The learned Civil Judge contended that according to the averages prepared by patwari, the market value was different from that mentioned as Rs, 72500/- vide Mutation No, 7006 dated 29.4.2000, and there was no evidence about the fact that sum of Rs, 72500/- was not paid by the defendant. It was held that mutation had been exhibited without any objection, which amounted to admission of the amount mentioned therein.
8. The learned appellate Court also came to the conclusion that the learned trial Court was of the opinion that sale consideration mentioned in the mutation was fixed in good faith and actually paid, and same was the market value of the suit property. He further contended that, according to one year average, the market value of the suit property was Rs, 20076/- but that average was fixed on the basis of two mutations while, according to five years average, value of the suit property was Rs, 14500/- and that average was based on seven mutations. He was of the view that those averages could not be considered in determination of the actual market value of the suit property.
9. The learned Civil Judge shifted the burden of proof of nonpayment of Rs, 72500/- to the plaintiff, inspite of the fact that Issue No, 9 was to be proved by the defendant and he was to produce evidence regarding payment of the said amount. The learned appellate Court did not take such shifting of burden to the plaintiff into consideration while recording his judgment. The defendant had produced only Babu Hussain son of Suleman as his attorney who was cross-examined on the point of fixation of the value as mentioned above. But no other evidence was produced by the defendant in this respect. The learned Addl. District Judge had no other alternative for fixation of the market value of the suit property, and ascertainment of the fact whether an amount of Rs, 72500/- was fixed in good faith and paid to the vendor, except to either take into consideration the statement of patwari halqa and the documents produced by him into consideration or order further proceedings for ascertainment of the market value. He just relied on the incorrect assessm ent of the learned Civil Judge, and wrongly held that the averages prepared by the patwari were not reliable. According to five years average, based on seven mutations, the market value was Rs, 14500/-while, according to the one year average, the market value was Rs, 20076/-.
The plaintiff had himself accepted the sale consideration as Rs, 25000/- in his plaint.
10.In the circumstances of this case, I hold that the learned Civil Judge and the learned Addl.
District Judge wrongly fixed the market value of the suit property as Rs, 72500/-. In fact, they were to accept the amount of Rs, 20076/- as the market value of the suit property if the plaintiff had not accepted the market value/sale consideration as Rs, 25000/-. I, therefore, declare that the sale consideration of the suit property is Rs, 25000/- as admitted by the plaintiff through his plaint.
11.The learned Addl. District Judge declared that formalities required in performance of talb-i- ishhad were fulfilled in accordance with law. There is no revision or cross objection by the respondent in this respect. It is, therefore, held that talb-i-ishhad was properly made. The learned appellate Court, however, came to the conclusion that talb-i-muwathibat was not proved by Muhammad Sultan. He mentioned that the plaintiff had mentioned in the plaint that he came to know about the sale through Momin Khan at Bajna Stop, Shinkiari, at 5 p.m. on 12.8.2000 but he did not mention the time in his statement as P.W.5, though he explained that Bajna Stop extended from a bridge to one school. The learned appellate Court further referred that Momin Khan, as P.W.6, did not mention the time whether it was morning, evening or night time. He was of the view that talb-i- muwathibat was an immediate demand and non-mentioning of time in the statement by plaintiff was the basis for adverse inference.
12.The statement of Malang Khan P.W. 7 starts with the words that he was going to his house from performing duty and was waiting at Shinkiari Stop when the plaintiff was informed by Momin Khan in his presence. There was no suggestion by the defendant to any of the witnesses named above that the time on 12.8.2000 was not the time as mentioned by the plaintiff in his plaint, and that the plaintiff was not referring to the same time while recording his statement and the statement of his witnesses. The defendant could not prove any other date and time on which information was given to the plaintiff. There is no evidence on record that any other meeting or sitting was the scene of information to the plaintiff regarding the sale in question. The mentioning of time by itself is not fatal to the suit of the plaintiff if it is not disputed at the time of evidence, which is the position in this case. In the circumstances of this case, the learned Civil Judge, Mansehra, and the learned Addl. District Judge, Mansehra did not properly appreciate the evidence of the parties and formed opinion out of the context of the said evidence.
13.The learned counsel for the respondent contended that the mutation was attested on 29.4.2000 while the information given to the plaintiff was shown on 12.8.2000, while the suit was instituted on 1.9.2000, and therefore, the suit was time barred. The issue of this objection was taken by the respondent in his writ statement, but no issue was framed on the basis of the said plea of the defendant. The learned Civil Judge, therefore, did not discuss the question whether the suit was or was not within time. That fact was not brought to the notice of the Court by the defendant either at the time of framing issues or at the time of arguments. The written statement shows that the words meaning "suit of the plaintiff is time barred" appeared to be later insertion in the written statement and the numbers of preliminary issues have been changed. It is not sure whether this objection was or was not available at the time of framing of issues, or at the time of evidence of the parties and whether this insertion was made initially at the time of submission of the written statement or it was made at some later stage.
14.The learned counsel for the respondent contended that the time of 120 days was to complete on 27th August, 2000 but the suit was instituted on 1.9.2000 and, therefore, the suit was time barred.
He contended that judicial officers were to remain on duty during the summer vacations turn by turn and office was to receive the suits/appeals, but the appeal was not filed in time.
15.The learned counsel for the petitioner, on the other hand, relied on the Notification No, 3465- 80/Admn. (LA-25) dated 2.5.2000 issued by the Registrar, Peshawar High Court, by the order of the Chief Justice and Judges of Peshawar High Court, wherein it was declared that all the Civil Courts original and appellate subordinate to the Peshawar High Court, Peshawar would remain closed for annual summer vacations w,e,f, 1st August, 2000 till 31st August 2000 except Chitral and Shangla.
He also referred to the Circular No, 3391-3438/Admn. (LA 25) dated 2.5.2000 on the subject of grant of vacations leave to District/Addl. District & Sessions Judges during the year 2000.
16. He mentioned para 2 of the said circular wherein it was held that at places where there were more than one officer, the period of vacations would be so adjusted between 20th July to 4th September, 2000 that at least one officer, i,e, District/Addl. District & Sessions Judge remains at the station in the absence of the other for entertaining and disposing of urgent civil and criminal matters like stay and bail applications etc. He also mentioned para 5 of the said circular wherein it has been mentioned that all the District & Sessions Judges were requested to forward consolidated programme of vacations leave in such a manner that one Civil Judge cum Judicial Magistrate remained at the station for entertaining and disposing of the urgent civil and criminal matters like stay and bail applications etc. throughout the vacation period. He contended that the presence of the judicial officer at the station during the summer vacations was not for normal civil work but was only for entertaining and disposing of urgent civil and criminal matters like stay and bail applications etc, while the filing of appeal was not a matter of urgent nature. The plaintiff, therefore, filed the appeal immediately on the first day of re-opening of the Court, and the period of vacations was to be excluded for the purposes of counting the period of 120 days.
17.The contention of the learned counsel for the plaintiff-petitioner is correct and needs no further explanation.
18.In the light of the above, I hold that the plaintiff has got superior right of pre-emption, that the market value of the suit property is Rs, 25000/- and the same is taken as the sale consideration paid by the vendee defendant to the vendor, that the plaintiff had made talb-i-Ishhad properly as accepted by the learned appellate Court, and not objected to by the respondent, and that the plaintiff had properly made talb-imuwathibat as duly proved by him through his own statement, through the contents of the notice of talb-i-ishhad, and through the statements of his witnesses, and that the suit of the plaintiff was within time.
19. I, therefore, set aside both the impugned judgments, and decrees and grant the decree for possession through pre-emption of the suit property in favour of the plaintiff against the defendant, on the payment of Rs, 25000/- as the pre-emption amount, alongwith the mutation fee and the District Council fee duly paid by the vendee-defendant on official rates. The plaintiff- petitioner is directed to deposit the amount of Rs, 25000/- or its un-deposited part, within one month from today otherwise his suit shall stand dismissed on this ground. He is further to pay the mutation fee and the District Council fee on the official rates at the time of execution of the decree in his favour when either the defendant/judgment-debtor produces the actual receipts of payment of such fees or the Executing Court ascertains the same amount otherwise. The parties are, however, left to bear their own costs.