' JAWWAD S. KHAWAJA, J.---The petitioner-plaintiff filed a suit for preemption against the respondents-defendants, which was decreed by the learned trial Court on 28-9-1999. The respondents preferred an appeal which has been allowed by the learned Additional District Judge on the ground that the petitioner-plaintiff had failed to prove the requisite Talbs.
2. I have gone through the testimony of the P.Ws. And find that the learned trial Court had fully examined their statements while holding that these were sufficient for the purpose of proving Talbs.
The learned appellate Court, however, I am afraid, has neither met the reasoning of the learned trial Court and nor has it adhered to legal principles.
3. The learned appellate Court has proceeded on the basis of conjectures as reflected in the following extract from the appellate judgment:-- "In the present society where the principles of "might is right" and the "fittest of the survival" have taken force, than the law of country and specially those principles have more applications in the village than in the cities. Only the mighter can perform that sort of act as maintained by the respondent. There is nothing on the record which shows that the respondent had such a dominant position in the area. If the respondent had such a dominant position in the area, then the appellants would have not purchased the disputed property without the prior permission of the respondent. So, in such circumstances, it shows that the respondent with the collusion of the P.Ws.
Have originated the false and frivolous story of jumping demand, just to establish his right of preemption in the Court and to deprive of the appellants from their legal rights in the property, which have accrued to them, by virtue of non-fulfilling of the Talbs by the respondent as required by statute. The secret agreement between the respondent and the P.W.2 and P.W.3 is for bad purposes and this sort of collusion is amount to fraud with the appellants rights. The fraud does not, creat any right or give any cause of action to the respondent to come in the Court and to be heard by this Court. The respondent and the P.Ws. Are liars. The respondents have come in the Court with un-clean hands, and it is a settled rule of law that a person, who comes in the Court with un-clean hands, is not entitled to get any relief from the Court. The P.W.2 and P.W.3 are the attesting witnesses of the notice of Talb-i-Ishhad. They are collusive with the respondent in originating false and frivolous story of Talb-iMuwathibat and Talb-i-Ishhad. It means that the P.W.2 and P.W.3 are interested in the benefits of the respondent and have come in the Court with the respondent to establish Talb-i-Muwathibat and Talb-i-Ishhad, so that the suit of the respondent be decreed against the appellants. The P.W.2 and the P.W.3 are the partisan witnesses. So, their depositions are untrustworthy and cannot be relied upon."
4. It is to be noted that there is no evidence on record to substantiate the view that there was any "secret agreement" between the petitioner and P.Ws. 2 and 3 or that they had colluded with the object of the defrauding the respondents-defendants. Furthermore, the observation made by the learned appellate Court that the respondents would not have purchased the property if the petitioner had a dominant position is based on a presumption which is not substantiated by the evidence on record.
5. In addition to the above, it has been held by the learned appellate Court that the mutation of sale .Was sanctioned in an open meeting and, therefore, it is not possible to hold that the petitioner did not get information of the sale on the date of the mutation. This assumption is also based on conjecture and not on the evidence adduced on record.
6. The testimony of the P.Ws. As to the time and place of Talb-i-Muwathibat is consistent and has not been undermined in cross-examination. The learned appellate Court, however, has held that because the petitioner's witnesses had not mentioned that the Dera of the petitioner was in Killa No.13 of Square No.54, they had contradicted the contents of paragraph 3 of the plaint wherein the exact location of the Dera has been given. I am afraid, this constitutes misinterpretation of the evidence. The P.Ws. Have consistently deposed that the Talb-i-Muwathibat was made at the Dera of the petitioner. The mere fact that they did mention Killa No.13 of Square No.54 while referring to the Dera is of no consequence. This is particularly so when these witnesses were not cross- examined on this factual issue.
7. In view of the foregoing discussion, I find that , the impugned appellate decree is not legally sustainable. The same is, therefore, set aside. As a consequence, the decree of the learned trial Court dated 28-9-1999 stands restored.