By means of this revision petition the judgment and decree dated 12.09.2008 passed by the Learned Additional District Judge and that of the learned trial Judge dated 12.01.2007 have been brought under impeachment.
2. Facts in brief as disclosed in this petition are that Muhammad Hussain son of Hakim Din was owner of the property measuring 1 kanal 9 marla fully described in the head note of the plaint. He sold it through a registered sale-deed dated 12.10.2004 for consideration of Rs, 19,500/- to the petitioners but with a view to defeat the superior right of pre-emption, an amount of Rs, 60.000/ was ostensibly shown. The petitioner-plaintiff came to know about the sale on 14.10.2004 at about 7.00 p.m by Mushtaq Ahmed son of Ibrahim in his house in the presence of Muhammad Yousaf son of Muhammad Din and Munir Ahmed son Alim. It is alleged that without wasting further time on getting knowledge, Talb-e-Muwathibat was made disclosing his intention to pre-empt the sale transaction. Talb-e-Muwathibat was followed by Talb-e-Ishad whereafter the suit was instituted.
The suit was instituted on the ground that he is co-sharer in the property and had the common source of irrigation. The averments contained in the plaint were emphatically denied apart from the certain preliminary objections. On facts and merits it was pleaded that the suitor has no case to succeed and ultimately claimed dismissal. Divergent pleading of the parties gave rise as many as 10 issues including one of relief.
3. Issue No, 1 was framed with regard to the superior right of pre-emption. The onus of which was proposed upon the plaintiff. Issue No, 2 was also proposed to prove the factum of Talbs, the onus of which was also proposed upon the suitor. Learned trial Judge ultimately, after recording evidence and on conclusion of trial decreed the suit in the terms prayed for. On Issue No, 3 it was stated that an amount of Rs,60,000/- has rightly been shown. An appeal taken against the said judgment and decree failed before the Learned Additional District Judge on 12.09.2008.
4. Learned counsel for the petitioner mainly challenged the finding of the learned Courts below on Issue No, 2 which relates to the performance of the Talab. It is argued that the Talabs were performed in accordance with law. Bitterly argued that both the Courts below misread and mis- interpreted the evidence available on the record to the advantage of the suitor.
5. Learned counsel for the respondent defended the impugned judgment and decree of the Courts below almost for the same reasons, which weighed before the learned Courts below. It was also argued that there are concurrent finding of fact rich in detailed, which cannot be interfered within the revisional jurisdiction of this Court.
6. I have heard the learned counsel for the parties at considerable length and perused the record.
Muhammad Ishaq PW-3 appeared as a witness of his own who in the cross-examination stated that he would do every work after consulting and with full concentration and he decided to pre- empt the sale transaction and he declared the intention to pre-empt the sale transaction after thinking over the matter and deliberation. Muhammad Yousaf appeared as PW-5. He in the cross- examination stated that when the respondent/suitor gained knowledge of the sale transaction after 10/15 minutes he made a performance of Talb-e-Muwathibat. He stated that they remained available in the house of Mushtaq for 25/30 minutes. Mushtaq Ahmad son of Ibrahim, entered in the witness box as PW-4. He stated that after about five minutes, jumping demand was made. The learned Addl: District Judge while returning his finding on Issue No, 2, noted this fact and the relevant statements of the two witnesses namely Mushtaq Ahmed and Muhammad Yousaf PW-4 & PW-5, have been reproduced in vernacular but gone by the consideration that the parties belong to the rural area and after lapse of time this type of discrepancy is natural. The learned trial Judge while answering Issue No, 2 observed that in the preemption law no time is specified for the jumping-demand. This question came up for consideration in Ghulam Abbas and 2 others V.
Muhammad Ilyas (2007 M LD 1978), wherein the controversy, has been set at rest. In the case mentioned supra the Talb-e-Muwathibat was with the delay of 10/15 minutes. Informer in that case has also deposed that the jumping demand was made after 10/15 minutes. The relevant portion of the judgment reproduced hereunder:-- "In the circumstances, the story set up by the respondent that he was informed of the sale much later on 25.11.99 by Tanvir Ahmad (PW.2) who was a Moeen, does not ring true. Furthermore, when Tanvir Ahmad appeared as a witness, he stated that when he informed the respondent of the sale, the respondent remained silent for about 10/15 minutes and thereafter expressed his desire to pre- empt the sale. This fact is also sufficient to show that no immediate jumping demand was made by the respondent-plaintiff. Moreover, there are serious discrepancies in the testimony of the PWs from which it can be easily seen that they were not being truthful:"
7. The right of pre-emption is a feeble right and until it is proved through unshaken evidence that the Talb-e-Muwathibat was performed in accordance with Section 13 of the Punjab Pre-emption Act 1991, the suit cannot be decreed. If the necessary Talb were not performed in accordance with law and in a mode provided by Section 13, the right of pre-emption would be extinguished. I am fortified in my view by Muhammad Siddique Vs Muhammad Sharif and others (2005 SCM R 1231) and Muhammad Saba Vs. Akbar Ali (2008 YLR 43). Both the Courts below, have misread the evidence and made incorrect interpretation of the deposition of the two material witnesses. If the Courts below have misread the evidence or the material available on the record interference in provisional jurisdiction of this Court is justified. Reference may be made to Nabi Bakhsh Vs. Fazal Hussain (2008 SCM R 1454).
8. I have come to the inescapable conclusion that the impugned judgment and decree passed by both the Courts below cannot sustain and the Courts below acted illegally and with material irregularity. The revision petition is accepted and the impugned judgment and decree of the Courts below are set-aside. Resultantly the suit brought by the respondent-pre-emptor shall be dismissed with costs throughout.