' 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 along with 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 preemption. He moreover claimed that the sale consideration was Rs.1,70,000 and also that the petitioner had failed to fulfil the requirements of Talbs.
5. The learned trial Court framed as many as 16 issued 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 bonafidely 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 is paras.
Nos.3 and 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 pre-emption and that he had failed to perform the requisite Talbs. 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 (Exh.P.7) and Khasra Kishtwar (Exh.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 Iqbal respondent/defendant, who appeared as D.W.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 Talbs. The petitioner has produced the witnesses, namely. Abdul Aziz (P.W.6), who informed her of the sale in the presence of Yousuf (P.W.7) and her husband Fazal Elahi. She herself appeared as P.W.S. There are no material inconsistencies or contradictions in the testimony of these witnesses. Each of them has proved the Talb-e-Muwathibat on 11-5- l 996.
Furthermore, through the testimony of P.W.6 and P.W.7, the giving of the notice of Talb-e-Ishhad is also proved. The fact that the notice of Talb-eIshhad was given is also proved through the Postal Clerk, Muhammad Shall, who appeared as P.W.1 and proved the postal receipt. (Exh.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-eIshhad. The petitioner, through her own testimony and the evidence of the postal clerk (P.W.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 (Exh.P.2) and the signatures of the respondentLdefendant 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 P.W.6 and P W.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 (Exh.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 P.W.6 and testified that he had thumb-marked the notice (Exh.P.3).
If. At all. The respondent/defendant wished to establish that the . Notice (Exh.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 P.W.7 had stated that the witnesses had signed the notice of Talb-eIshhad, while Abdul Aziz (P.W.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 Talbs, the learned trial Court has not proceeded on conjectures while holding that the petitioner became award of the sale because the respondent had taken possession of the suit-land at the time of the sale. There is no F 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 Talbs is also not legally warranted.
13. Coming lastly to Igue No.12, the petitioner had asserted that the sale consideration was Rs 40,000 only. To support his contention he had produced the Aust Bai (Exh.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 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 D.W.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.