MAULVI ANWAR-UL-HAQ, J. - This judgment shall decide R.S.A. No. 22/03 and R.S.A. No. 23/03 as common questions are involved and these were ordered to be heard together.
2. Vide sale-deeds dated 13.9.1995 Mst. Firdous Shafique appellant in R.S.A. No. 22/03 and Muhammad Shafique, the husband of the said lady and Tahir Mahmood, her son, appellants in R.S.A. No 23/03 (hereinafter to be referred to as the- defendants) purchased portions of an evacuee property bearing No. P-76 in Khasra No. 975 in chak No. 212/RB located in Faisalabad city.
The consideration in each case was Rs. 2,85,000/-. On 9.1.1996 Mst. Zubaida Khanum, the deceased respondent (hereinafter to be referred to as the plaintiff) filed two suits for possession of the said properly by pre-emption. It was stated in the plaints, that she is the owner of the Western part of the said property. She and one Mst. Fatima-un-Nisa were residing in the same since the independence of-the country. Both of them filed C.H. Form. The property which is stated to be a house was divided into two portions i.e. A and B. The portion B was transferred to the plaintiff while portion A was transferred to the said other lady. It is the successors of the said lady who have sold the property to the defendants. She claimed superior right of pre-emption as Shafi Sharik, Khalit and Jar. Performance of talbs was pleaded. The defendants in their written statements stated that the plaintiff-lady was fully aware of the sale. The other allegations were also denied. Following identical issues were framed in the two cases by the learned Trial Courts:---
(1) Whether the plaintiff has got superior right of pre-emption against the defendant? OPP.
(2) Whether the plaintiff has fulfilled the demands of Talabs as required under the law? OPP.
(3) Whether the plaintiff has no cause of action? OPD.
(4) Whether the suit is mala fide? OPD.
(5) Whether the defendants are entitled to special costs u/S. 35-A of C.P.C.? OPD
(6) Whether the plaint is liable to be rejected u/O. 7, Rule 11, C.P.C.? OPD.
(7) Relief.
Evidence of the parties was recorded Vide judgments and decrees dated 20.5.1999 the learned Trial Court decreed both the suits subject to deposit of Rs. 2,85,000/- in, each case. First appeals filed by the defendants were heard by a learned A.J.D., Faisalabad, who dismissed the same on 28.4.2003. R:S.A. No. 22103 has been filed by Mst. Firdous Shafique while R.S.A. No. 23103 has been filed by the said Muhammad Shafique and his son Tahir Mahmood.
3. Mr. S.M. Masood, Advocate/learned counsel for the defendants in these . Two cases contends that evidence on record has been mis-read in the matter of the making of the talbs particularly the first talb. He has also tried to argue that the property being erstwhile evacuee property was, admittedly, partitioned before its transfer to. The said two ladies and as such the plaintiff-lady has no superior right of pre-emption. Syed Muhammad Kaleem Ahmad Khurshid, Advocate/learned counsel for the plaintiff, on the other hand, contends that the evidence has been properly read and discrepancy, if any, is a result of natural variation. He relies on the cases of Abdul Qayyum through Legal Heirs v Mushk-e-Alam and another (NLR 2001 AC 589) and Azmatullah through L.Rs. v. Mst.
Hameeda Bibi and others (2005 SCM R 1201). While replying fo the said second contention, Mr. Khurshid, urged that, admittedly, the properties are adjacent and as such his clients do have a superior right of pre-emption.
4. I have gone through the Trial Court records of both these cases. I may note here that the identical evidence was given by the parties and recorded by the learned Trial Court in both these cases. The plaints are also identical. It will further be seen that before the learned Court of first appeal as well as before me, only the matter of superior right of pre-emption covered , by the said issue No. 1 and the matter of performance of talbs covered by the said issue No. 2 have been agitated. The findings recorded on the other issues by the learned Trial Court are accordingly confirmed:
5. I will dispose of the matter of superior right of pre-emption, first. It is almost an admitted position on record that the property admittedly, owned by the plaintiff-lady and The property subject- matter of these two suits formed part of the same house before it has partitioned by the Settlement Authorities and there is no dispute that they lie adjacent to each other. This being so, the findings recorded in the matter of superior right of pre-emption by the learned Trial Court affirmed by the learned. A.D.J. Do not call for any interference and the findings on issue No. 1 are accordingly affirmed.
6. Coming to the matter of talbs, it was stated in para-1 of the said plaints that on 25.12.1995 Rana Shah Nawaz son of Allah Dad Khan and Muhammad Tahir son of Muhammad Shafi told plaintiff that the property has been purchased by the defendants and she made the first talb. Thereafter, accompanied by the said two persons, she went to the house of the defendants at the address mentioned in the plaint and made the Talb-i-Ishhad. On 27.12.1995 she served. As notice through an Advocate attested by the said two persons under registered cover A.D. The examination of Ex. P1, the envelope shows that the defendants had refused to accept the notice which was returned. Ex.
P.3 is the said notice whereby the learned Advocate informed the defendants that on 25.12.1995 his- client came to know through Rana Shah Nawaz and Muhammad Tahir at 5.00 p.m. About the sale and she made a first talb. Ex. P.4 is the postal receipt.
7. Unfortunately, the said lady died before her statement could be recorded and her LRs were brought on record who included the said Rana Shah Nawaz her son. The said Muhammad Tahir appeared as PW-5 on 26.9.1997, he stated that on 25.12.1995 he was present in the house of Rana Shah Nawaz. He went out of the house and saw that some carts were being loaded. Shah Nawaz was with him. Both of them called upon the said persons not to carry, out the said operation as it is a residential area, whereupon the said persons went away and brought along Shafique and Tahir (these are the appellants in R.S.A. No. 23/03). The said persons declared that they have purchased the property and they would use it in any manner they like fit. They also informed that half the house was purchased by Mst. Firdous Shafique and The remaining half has been purchased by them. Thereafter, the witness and Shah Nawaz went to Mst. Zubaida and told her that the adjacent house in being used for commercial purpose and has been purchased. The said lady stated that she will file a pre-emption suit. Thereafter, Mst. Zubaida accompanied by the witness PW-5 and the said Shah Nawaz went to House No. 235, Muslim Town, Sargodha Road and met Shafique who stated that he will not be transferring the house to Mst, Zubaida.
8. Rana Shah Nawaz appeared as PW-6 on the same date. He stated that he is an LR of Mst.
Zubaida Khanum being has son and special attorney of his other brother and sisters. He stated that he was present in his house on 25.12.1995 at 3.00 p.m. When the carts came there and started unloading drums. He told the cart-men that this is a residential, area and why a godown has been made. They went and informed the owners whereupon Shafique and Tahir reached there is about 1/2 hour. At that time, Tahir and his mother were present and all of. Them told Shafique that this is a residential area but they stated that they have purchased it. His mother stated that it is their right arid-that they will file a pre-emption suit. The said persons replied that they may do whatever they want. Thereafter, they proceeded to the house of Shafique in Muslim Town and his mother again reiterated, her claim but he Refused. In his cross- examination, he stated that he met Tahir witness in the street and he does not remember whether he came to him or was just passing through.
However, he met him when he came out of the house in the street. He stated that his mother did not go there. After he reprimanded the cart-men, they went to bring Shafique and Tahir and returned after about 45 minutes. Shafique and Tahir came to their house and told that they have purchased the property. His mother was present in the room' attached to the drawing room. He called his mother and they talked for 15 minutes and then they left.
9. Muhammad Shafique defendant appeared as DW-3. He categorically -stated in his examination-in-chief that no cart-man came to him and neither do they employ cart-man.
Although the witness stopped at that time but the cross-examiner deemed it appropriate to indulge and procured his denials in the course of cross-examination that he had gone to the street where he had informed Tahir and Shah Nawaz PWs that the defendants have purchased the property; that Shah Nawaz went and informed his mother whereupon she started in a very loud voice that she will file a pre-emption.
10. A reading of the said statements made by PWs 5 and 6 would show that the same are absolutely discrepant so as to render either one of them to be false. The defendants rebutted the said evidence by denying the said allegations. To my mind, this is not a case of natural variation.
Tahir PW-5 stated that they were informed by Tahir and ShafiqUe vendees and they went and informed Mst. Zubaida Khanum who made the talb while her son Rana Shah Nawaz PW-6 stated that the said vendees met them in the street and informed them of the sale whereupon the first talb was. Made. The said Shah Nawaz further contradicting himself in the course of cross- examination.
11. It was not a matter of as to how many donkey carts were there as observed by the learned A.D.J.
At page 6 in his impugned judgment but very fabrics of the statements made by the said two witnesses stood tarnished. I,. Therefore, do find that the learned Courts below have failed to read the evidence and as such have committed an error of law while finding that a valid first talb has been proved to have been made by the deceased-lady. Needless to state that the Talb- i-Ishhad is a confirmation of the first talb and the Talb-i- Muwathibat having not been proved, there is no question of valid Talb-i-Ishhad. The findings on issue No. 2 are accordingly reversed. Both the R.S.As. Are accordingly allowed. The impugned judgments and decrees passed by the learned Courts below are set aside and the suits filed by the plaintiff are dismissed. However, no orders as to costs.
10. The records of the learned Courts-below be returned back immediately.