' ZAFAR IQBAL CHAUDHRY, J.---A suit for possession through pre-emption filed by Muhammad Hayat Khan petitioner was dismissed by the learned Civil Judge Class III, Mianwali on 13-4-2006, and an appeal against the said judgment and decree filed by the petitioner has also been dismissed by the learned District Judge, Mianwali through judgment and decree, dated 23-9-2006.
Both these judgments and decrees have been challenge through this revision petition.
2. Compendiously and tersely put, the facts forming part of this petition are that the petitioner filed a suit for possession through preemption alleging therein that the suit-land well detailed in the head-note of the plaint was owned by one Abdul Ghaffar Khan who sold the same to the respondent, vide Mutation No,4819, dated 15-3-2003 for a sum of Rs,60,000 but in order to jeopardize the pre-emptive right of the petitioner got incorporated Rs,1,20,000 in the said mutation.
According to the petitioner the sale of the suit-land was kept secret and he gained knowledge of the same on 25-3-2003 at Sham Vela through Amir Ali Nawaz Khan in the presence of Muhammad Tariq Khan and he then and there in the said Majlis declared his intention to pre-empt the same and on the following day sent a registered notice duly attested by the witnesses to the respondent and in this way fulfilled the requisite Talbs. The petitioner pre-empted the sale of the suit-land being co-sharer in the Khata and prayed that a decree for possession through pre-emption of the same on the payment of Rs,60,000 may be passed in his favour and against the respondent.
3. The suit of the petitioner was strongly resisted by the respondent and he also raised preliminary objection of limitation, estoppel and court-fee.
4. Out of the divergent pleadings of the parties, following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has the superior right of pre-emption qua the vendee/defendant? OPP.
(2) Whether the plaintiff fulfilled the requirements of Talbs and prescribed by law? OPP.
(3) If the above issue is not proved then what would be the market value of the suit-land? OP- Parties.
(4) Whether the plaintiff is estopped by his words and conduct? OPD.
(5) Whether the suit is time barred? OPD.
(6) Whether the defendant is entitled to recover improvements and incidental charges in case of decree of the suit? OPD.
(7) Relief.
4A. Both parties to the suit led evidence in support of their A respective contentions. The learned trial Court holding that the petitioner failed to fulfil the requirements of Talbs as prescribed by law dismissed the suit vide judgment and decree, dated 13-4-2006. The petitioner being aggrieved of the said judgment and' decree filed an appeal before the learned District Judge, Mianwali which was also dismissed through judgment and decree, dated 23-9-2006.##TE#
5. The learned counsel for the petitioner contends that the petitioner had proved performance of all the required "Talbs" through consistent/positive evidence but a contrary view taken by the two Courts below, opposed to the evidence on the file, is not sustainable. It is further submitted that the petitioner had a superior pre-emptive right which could not be refused in the manner it has been done by the Courts below. It is next contended that evidence produced by the petitioner during the trial has been misread by both the Courts below. It is also contended that judgments and decrees of both the Courts below being against law and facts are liable to be set aside.
6. On the contrary, learned counsel for the respondent opposes this civil revision and prays for dismissal of the same on the ground that the requisite "Talbs" were not performed by the petitioner and no notice of Talb-e-Ishhad was ever received by him allegedly sent by the petitioner and the suit being bad by law and not properly valued for the purpose of court fee had rightly been dismissed.
7. I have heard the arguments of the learned counsel for the parties and also gone through the judgments and decrees passed by both the Courts below as well as the evidence attached with this file.
8. Muhammad Hayat Khan petitioner in order to substantiate his plea himself appeared as P.W.1., produced Tariq Khan his son as P.W.2., Ali Nawaz Khan his nephew (Bhaanja) as P.W.3 and tendered photo-stat copy of notice of Talb-e-Ishhad as Mark-1 and postal receipt (under objection) as Exh.P-1. Muhammad Hayat Khan (P.W.1) and Tariq Khan his son (P.W.2) deposed that on 25-3-2003 at evening time when they were sitting in their house, Ali Nawaz Khan (P.W.3) came there and informed about the sale of the suit-land. On this information, the petitioner (P.W.1.) announced that he would pre-empt the same. Ali Nawaz Khan (P.W.3.) also stated in line with the deposition of P.W.1.
And P.W.2 by saying that on the said date and time he informed the petitioner about the sale of the suit-land. They further deposed that on 26-3-2003, a notice duly singed by them, a copy of which has been tendered as Mark-1, was got prepared in the Katchery which was sent to the respondent through registered post. During the cross-examination P.W.1. Admitted that Abdul Ghaffar vendor was his nephew and that he had no enmity with him and further the mutation in question was sanctioned in the office of the Patwari on 15-3-2003.
9. On the other hand, Mehar Muhammad appeared as D. W.1. Who did not mention any right of the petitioner, so he was not.Cross-examined in this regard while Din Muhammad respondent himself appeared as D.W.2. And during the cross-examination he admitted that the petitioner was co- sharer in the disputed Khata. Din Muhammad respondent while appearing as D.W.2., categorically stated that Abdul Ghaffar vendor had to return the loan advanced to him by the petitioner and in this connection the vendor along with the petitioner and his son Tariq came to him and asked to purchase the suit-land. The bargain of the suit-land was thus effected in their presence. Abdul Ghaffar vendor appeared as D.W.3 and supported the version of the respondent.
9A. It is notable that the petitioner in his cross-examination admitted that Abdul Ghaffar vendor (D.W.3) was his nephew and he had no enmity with him and that the mutation was attested in the office of Patwari on 15-3-2003. From this admission of the petitioner coupled with the statement of the respondent (D.W.2) and Abdul Ghaffar. (D.W.3) it can be safely inferred that the petitioner was having the knowledge of the sale of the suit-land right from the day the mutation in question was sanctioned and in this way Talb-e-Muwathibat allegedly made on 25-3-2003 as stated by the P.
Ws. Appear to be concocted story. It is worth mentioning here that the petitioner in his evidence simply tendered photo stat copy of the notice was Mark-1 and the postal receipt (under objection) as Exh.P-1. In the presence of specific denial of the respondent about the receipt of the notice of Talb-e-Ishhad it was obligatory for the peiitioner to prove the factum of delivery of the said notice. ##TE#The witnesses had been shown only photo-copy of the notice. Original notice was neither got produced in the Court nor procedure for production of the secondary evidence was adopted.
Further, no postman or other witness was produced to prove the factum of delivering the notice.
During the pendency of appeal the petitioner moved an application seeking permission to prove the notice through secondary evidence, which was also dismissed by the learned Appellate Court on the ground that under section 27 Order XLI C.P.C. There was no scope of production of secondary evidence at the appellate stage and request for additional evidence could not be made as the petitioner could not be allowed to fill the lacunas of his case. The said order was not challenged any further and attained finality.
10. The learned trial Court as well as the learned Appellate Court have properly thrashed the evidence on record and the learned Appellate Court has right concurred with the finding of the trial Court I feel no illegality or irregularity in the judgments and decrees passed by both the Courts below. This civil revision having no merits is hereby dismissed.##TE#