' MAULVI ANWARUL HAQ, J.- Vide registered sale-deed dated 26-8-2000, the respondent purchased the suit property for consideration of Rs. 12,00,000. On 12-9-2000, the appellant filed a suit for possession of the suit property (a house) by pre-emption. According to him the market value of the house is not more than Rs.7,00,000 which was in fact paid. He claimed to be a co-sharer in the house. He further pleaded that the house of the petitioner is adjacent to the suit house with a common wall supporting the roof of both the houses. Performance of Talbs was pleaded. The respondent in /his written statement insisted that he has not only actually paid Rs. 12,00,000 for the house but has also incurred expense of Rs.70,000 on the registration of the sale-deed. Other .Pleadings were denied. Following issues were framed:-
(1) Whether the plaintiff has got right of pre-emption against the defendant?
(2) Whether the plaintiff has performed necessary Talbs in accordance with law?
(3) Whether the ostensible sale price was actually fixed in good faith as Rs. 12,00,000 which was paid by the vendee to the vendor?
(4) Whether the plaintiff waived his right of pre-emption?
(5) Whether the defendant is entitled to incidental charges, if so, to what extent?
(6) Relief.
' Evidence of the parties was recorded. Learned trial Court found that the petitioner has superior right of pre-emption being "Shafi-e-Shareek" and "Shafi-e-Jar". Consequently, Issue No.l was found in his favour. Under Issue No.3, it was found that the respondent has actually paid Rs. 12,00,000 for the property. Issue No.4 as to waiver, was answered against the respondent. Under Issue No.5, it was found that the incidental charges have not been proved. Issue No.2 pertaining to Talbs was found against the appellant. The suit was accordingly dismissed on 8-2-2003. First appeal filed by.
The petitioner was dismissed by learned A.D.J., Kharian, on 7-8-2004 who affirmed all the said findings of the learned trial 'Court.
2. Learned counsel for the appellant has conceded the findings on Issue No.3 and states that his client is willing to pay Rs. 12,00,000 as price of the property to the respondent. He questions the findings on Issue No.2, pertaining to Talb. His contention is that the learned Courts below have failed to consider the entire evidence on record and have based their findings picking up a portion of the statement which upon reading of the entire evidence is apparent to be either a slip of tongue or misrecording by the learned trial Court. According to the. Learned counsel performance of both the initial Talbs has not been duly proved on record. Learned counsel for the respondent, on the other hand, contends that it is not a case of misreading and that the learned Courts below correctly answered Issue No.2 while relying on the said portion of the statement of the appellant.
Learned counsel also questions the findings on Issue No.5, as according to him the sale-deed is present on record and the- stamp duty can be calculated by reading the same.
3. I have gone through the records with the assistance of the learned counsel for the parties. It will be seen that before the Court of appeal Issues Nos.2, 3 and 5 were agitated whereas before me only Issues Nos.2 and 5 have, been addressed as the learned counsel for the appellant has admitted the ostensible sale price. In para.3 of the plaint, the appellant pleaded that he came to know about the sale on 27-8-2000 at 9-00 a.m. While he was present in his shop. Information was laid by Ghulam Haider and Anwar Saeed. Muhammad Faazal was also present. He immediately made the first Talb. A notice was issued to' confirm the first Talb under registered cover A.D. On 5- 9-2000.
4. The appellant i.e. Rehmat Ali, appeared as P.W.l. I deem it appropriate to note that it was on 27- 9-2001 when his statement was recorded. He proceeded to make a statement in accordance with the said pleadings. However, instead of describing the second informant as Anwar Saeed, he named him as Dr. Muhammad Ashraf and further in 4th line of examination-in-chief he stated the date as 27-9-2000 instead of 27-8-2000, mentioned in the plaint. On page 4 of his statement in 3rd and 4th lines thereof he, answered the two suggestions given to him as follows:- {{URDU TEXT}}
5. Both the learned Courts below have observed that since he has stated the date of knowledge as 27-9-2000, and further the name of Saeed Anwar as Dr. Muhammad Ashraf the same is not in consonance with the pleadings and have proceeded to hold that the performance of first Talb has not been proved.
6. I have examined the entire evidence on the issue with the assistance of learned counsel for the parties. I may repeat here the sequence of the events. According to the plaint, knowledge was acquired on 27-8-2000. Notice (Exh.P-1) was posted under registered cover vide receipt (Exh.P.2) on 5-9-2000. The suit was filed on 13-9-2000. At the same page-4, in first line the following suggestion was given and admitted by the appellant:- {{URDU TEXT}} Notice (Exh.P.l) was proved by Ch. Munir Akhtar, Advocate, P.W.3, the scribe of the same which bears the said date. P.W.4, Ehsanul Haq, Postman, with reference to his records, stated that a registered, document was delivered to. The respondent, Muhammad Yousaf Baig, vide receipt Exh.P.4/1 which was signed by him. P.W.5 is Anwar Saeed, one of the informants who has stated that he came to know about the sale of the house on 27-8-2000 and he went to the appellant along with Ghulam Haider at his shop and informed him. Ghulam Haider, the other informant, appeared as P.W.6" and stated that Sadiq had told him and P.W.5 about the sale on 27-8-2000 anil they informed the appellant on the same date and he made the first Talb.
7. Having read the entire evidence, I do find that the said date i.e. 27-9-2000 occurring in the statement of P.W.l i.e. The appellant, is either a slip of tongue or otherwise the date has not been correctly recorded by the learned trial Court. This does become a case of misreading rather non- reading of the evidence as upon reading of whole evidence, only conclusion that can be arrived at is that the witness had stated on 27-8-2000, particularly, when it was suggested by the respondent himself that he acquired knowledge in the month of August, 2000.
8. So far as the alleged misdescription of Anwar Saeed, (P.W.5) as Dr. Muhammad Ashraf in the statement of P.W.l is concerned, the same also is of no avail as Muhammad Yousaf Baig, (D.W.l), himself stated, as following, in the course of his cross-examination:- ' Answer Saeed, (P.W.5), was also suggested in the course of his cross-examination and he admitted that he. Is "Ham Zulf" of Muhammad Yousaf son of Rehmat Ali, appellant.
9. Otherwise, there is no discrepancy in the statements of said witnesses. Notice of "Talb-e-Ishhad" has also been duly proved by the attesting witnesses and the delivery of notice also stands proved on record. To my mind, the .Case is fully covered by the dictum of Hon'ble Supreme Court of Pakistan in the case "Haji Feroze Khan and others v. Amir Hussain through Rs. And others (2004 SCM R 1719). The findings recorded on Issue No.2 are accordingly reversed and the issue is answered in favour of the appellant.
10. As regards Issue No.5, I find that a copy of the sale-deed dated 26-8-2000 has been produced by the appellant himself on record as Exh.P.4. An examination of the said document reveals that the stamp duty of Rs.60,000 has been affixed thereon. The appellant, therefore, is entitled to payment of the said charges. Issue No.5 is answered accordingly.
11. For all what has been discussed above, RSA is allowed and both the impugned judgments and decrees, passed by the learned Courts below, are set aside and the suit filed by the appellant/plaintiff is decreed against the respondent/defendant subject to deposit of total amount of Rs.l2;60,000 on or before 31-5-2007 in the trial Court. He will be entitled to adjust the amount already deposited by way of l/3rd. In case the appellant fails to deposit the said amount in the learned trial Court on or before the $aid dale, his suit shall stand dismissed with costs throughout.
At the moment, the parties are left to bear their own costs.
12.Records of the learned lower Courts be returned back immediately.