' MUHAMMAD KHALID MEHMOOD KHAN, J.--- This Civil Revision was remanded by the honourable Supreme Court of Pakistan vide judgment dated 24-1-2007 with the direction to decide afresh. Both the parties have provided better copies of statement of witnesses which are admitted to be the true copy of evidence recorded by the learned Civil Court.
2. The petitioner filed a suit for possession through pre-emption against respondents regarding land detailed in the plaint, claiming that on 8-9-1996 one Mst.Muniba Bibi sold land measuring 63 Kanals, 11 Marlas situated in village Thatha Bawa Tehsil Pasrur to respondents against consideration of Rs.2,00,000 but the consideration was wrongly mentioned in the mutation of sale as Rs.3,00,000 against the prevailing market rate which is Rs.2,00,000. The right of pre-emption was claimed on the basis of Shafi-e-Sharik, Shafi-e-Khalit and Shafi-e-Jar. As per averments of para. 5 of plaint the petitioner came to know about the pre-empted sale on 8-8-1996, the same day of attestation of mutation of sale he immediately in a `Majlas' announced his right of pre-emption and on 9-8-1996, issued notice under section 13 of Punjab Pre-emption Act duly signed by two truthful witnesses i.e. Abdul Jabbar son of Nazeer Ahmed and Muhammad Akhtar son of Abdul Majeed. The respondents controverted the assertion of plaint. The learned Trial Court framed the following issues:- "ISSUES".
(1) Whether the ostensible sale price of the disputed property was fixed in good faith and actually paid? OPP
(2) If issue No.1 is not proved what was the market price of the disputed land at the time of sale?
OPPs
(3) Whether the plaintiff has got a superior right of pre-emption qua the defendants? OPP
(4) Whether the requisite talabs were duly made in accordance with law? OPP
(5) Whether the plaintiffs are estopped to file the present suit and they have waived their right?
OPD
(6) Whether the suit is incorrectly valued for the purpose of court-fee? OPD
(7) Whether the suit is for partial pre-emption? If so, its effect? OPD (7-A) Whether plaintiff's suit is collusive one? OPD
(8) Relief.
3. Both the parties adduced their verbal as well as documentary evidence and the learned Trial Court vide judgment and decree dated 15-6-1999 decreed the suit subject to deposit of Rs.3,35,000.
The respondents assailed the said judgment and decree through an appeal which was allowed vide judgment dated 9-5-2002, hence, the present civil revision.
4. Learned counsel for the petitioner submits that Appellate Court has failed to appreciate that Talabs in terms of section 13 of the Punjab Pre-emption Act, 1991 have been proved beyond any shadow of doubt and as such the appeal was liable to be dismissed. He further submits that judgment of learned Appellate Court suffers from non-reading and misreading of record. He further submits that learned Appellate Court erred in law to hold that petitioner has failed to mention the names of witnesses of `Talab-i-Mowathibat' in the plaint along with place of `Talab- iMowathibat". He submits that the judgment Mian Pir Muhammad and another v. Faqir Muhammad through legal representative and others (PLD 2007 SC 302) was passed after the filing of the suit and as such the ratio of said judgment is not applicable on this case and relies on Nadir Khan v.
Itebar Khan (2001 SCM R 539), Haji Noor Muhammad v. Abdul Ghani and. 2 others (2000 SCM R 329), Muhammad Ilyas v. Ghulam Muhammad and another (1999 SCMR 958), Haji Abdullah through Legal heirs v. 'Haji Abdul Majeed (1999 M LD 2670) and Khursheed Akbar v. Saadullah Khan (2001 CLC 981).
5. Learned counsel for the respondents submits that petitioners have miserably failed to establish on record that `Talabs' have not been proved in terms of section 13 of Punjab Pre-emption Act. He further submits that negotiation of sale was in the knowledge of petitioners prior to attestation of mutation. He further submits that pre-emptor has failed to appear in witness box and it is, thus, proved that suit was not filed by. Him and beneficiary of the same is P.W.1. He further submits that petitioner has failed to mention in the plaint about the name of informer and as such the learned Appellate Court has rightly set aside the judgment of learned Trial Court.
6. The controversy required consideration between the parties is about "Talab-i-Mowathibat" in terms of section 13 of Punjab Pre-emption Act. It is an admitted fact that petitioner pre-emptor has failed to appear in witness box, his special attorney appeared as P.W.2. When he appeared in the witness box he has not stated that all facts in the knowledge of petitioner are known to him or petitioner has told him about the facts of the case. In his power of attorney these facts are also not find mentioned, hence, the crucial question is whether P.W.2 can depose on behalf of petitioner about those facts which he has not made known to him. The reason for non-appearing of petitioner in witness box given by P.W.2 is his old age and weak health. It is a proven fact on record that petitioner has two sons and according to P.W.2 he is living with his son Zulfiqar but instead of appointing his own son as attorney why he opted to appoint P.W.2 as his attorney who claims to be son of his sister. There is no evidence available on record about the age of petitioner and his health, rather, it is an admitted fact on record that petitioner himself is working on his agricultural land, he can easily walk. No medical prescription has been placed on record confirming that pre- emptor is unable to appear or is unable to make statement before the Court. In the absence of any evidence about his age and health inference will be that he is not interested in prosecuting the suit.
The defence of respondent is that it is P.W.2, who managed to file the suit and would be the beneficiary of decree if passed. The petitioner when filed the suit in his plaint he averred as under:- {{URDU TEXT}}
7. The contents of this para show that it is the pre-emptor petitioner who himself came know to about the pre-empted sale. He has not mentioned in this para who informed him in which Majlis he was sitting and where the said Majlis took place. He averred that two witnesses Abdul Jabbar son of Nazeer Ahmed and Muhammad Akhtar son of Abdul Majeed were his two truthful witnesses who signed the notice of `Talab-i-Ishhad' but he is not claiming that these witnesses were present when he came to know about the preempted sale. Muhammad Akhtar one of the witnesses of notice of `Talab-i-Ishhad' appeared in the witness box as P.W.2. He deposed that pre-empted land was sold two years nine months and twenty six days ago, the petitioner came to know about the said sale in the evening of same day at 8'O Clock when he was present in his own house through Abdul Jabbar.
He immediately announced his intention to preempt the sale and chalked out a programme to issue notice tomorrow. Afterward he, petitioner and Abdul Jabbar assembled and went to the house of Advocate on Friday and got prepared this notices. Notices were read over to them and he affixed his thumb impression on the notices and were dispatched on Saturday. In cross- examination P.W.2 admits that petitioner was appearing himself in the suit and due to his ill health for the last six months he is unable to appear personally. The petitioner can talk easily, however, he offers his pray in his house, used to go outside to answer the call of nature. He is looking after his land. Petitioner has two sons, one of mentally deranged and the other son is illiterate whose age is 35 years. He is agriculturist by profession, his name is Zulfiqar. The petitioner has no confidence upon his son that is the reason he has appointed him as his special attorney. He admits that Abdul Rashid and Zulfiqar are living with each other and it is Zulfiqar who looks after the petitioner. The land of petitioner is 15/20 acres which is in possession of his son. He admits that Muniba Bibi has sold her 8 acres of land against consideration of Rs.2,00,000/ 2,50,000. Notice of Talab-i-Ishhad were sent to Munshi Khan, Shahbaz Khan etc. And their two sons whose names are not known to him. He deposed that Abdul Jabbar told him that he went to Pasrur and Muniba Bibi's husband told him about the sale. He further admits that petitioner came to know about the pre-empted sale while sitting in the courtyard of his house, when Abdul Jabbar came and he told about the sale. The house of Lawyer was known to him and they reached to the house of Lawyer at 10-00' 0 Clock in the morning. The notices were written by Munshi of Lawyer. The Advocate read over the notices to him.
The notices were dispatched by Munshi. Abdul Jabbar appeared as P.W.3. He deposed in his examination-inchief that two years nine months and twenty six days ago he came to know about the pre-empted sale. He told petitioner at 8' 0 Clock in the evening where the petitioner, and his brother was sitting. On hearing about the sale petitioner immediately announced that he will exercise his right of pre-emption. Second day they came to Pasrur and went to the Lawyer's house.
In those clays Friday was the public holiday. Notices were read over to them. Notices were dispatched next day. In cross-examination he admits that bus stop is near the Courts and at 4' 0 Clock husband of seller told him about the sale but he has not asked about the consideration of sale. He has not informed any person about the sale in the village. The wife of petitioner was earning bread and butter for petitioner and now Zulfiqar is providing these facilities to petitioner.
There is dispute between petitioner and Zulfiqar that is the reason petitioner has appointed Akhtar as his attorney. He admits that petitioner can walk easily but he is weak. He admits that notices were prepared by Munshi of Lawyer who was present there before we reached there. The evidence of P.W.1 and P.W.2 read with plaint shows that Abdul Jabbar is the informer of pre-empted sale and is the signatory of notice of `Talab-iIshhad' but in plaint the petitioner has not mentioned that Abdul Jabbar informed him about the sale and P.W.2 was present with him. P.W.2 Akhtar deposed in his examination-in-chief as well in cross-examination that he was sitting in the house of petitioner when Abdul Jabbar came and informed about the sale whereas Abdul Jabbar in his examination-in-chief deposed that when he reached the house of petitioner, his brother was sitting there. He does not depose that P.W.2 Akhtar was there. If the story narrated by two P.Ws.
About the knowledge of pre-empted sale admitted true, the position emerges that Abdul Jabbar is person who provided the information to petitioner. Abdul Jabbar clearly deposed that when he informed petitioner, petitioner and his brother was there. He has not pointed out the presence of P.W.2 Muhammad Akhtar, meaning thereby the testimony of Muhammad Akhtar is false, Muhammad Akhtar deposed in his examination-in-chief that he, Abdul Rashid and Abdul Jabbar were there. This shows that it is Muhammad Akhtar who managed to file the suit and the story narrated by him is false. Both the witnesses are unanimous on the point that petitioner is looking after his land personally. He is living with his son Zulfiqar, Zulfiqar is looking after him, so the question of disconfidence on the part of Zulfiqar according to these witnesses become irrelevant and illogical. Nonappearance of Abdul Rashid in witness box shows that it is P.W.2 Muhammad Akhtar who managed to institute the said suit and he alone is beneficiary of the same. If Zulfiqar son of Abdul Rashid is looking after his father why the father has not appointed his real son and selected the son of his sister for looking after the affairs of his litigation. Further the perusal of attorney will show that except sale every powers have been delegated to the attorney including the power to receive `Zar-eSoem' deposited with the Court. Admittedly the amount was deposited by petitioner why he will forego his right to receive his own money in case the suit fails. The entire document of power of attorney does not shows that petitioner has briefed Muhammad Akhtar about the facts of sale. If the story of knowledge of petitioner is admitted to be true then Muhammad Akhtar was not present at the time of first knowledge of petitioner. Muhammad Akhtar came into the picture subsequently, he managed to file the suit through petitioner but for his own benefit. Petitioner admits that he was not aware about the price of land but at the time of institution of suit how he came to know that the land was sold for Rs.2,00,000. If the certified copy of mutation was in their knowledge, why they have not mentioned the amount mentioned in the mutation of sale. The perusal of notice of `Talab-iIshhad' shows that they are not aware about the consideration of sale. They have not deposed in their statement that they obtained certified copy of mutation and came to know about the sale price. The story to contact the Lawyer for preparation of notice of Talab-i-Ishhad further also proves to be fake. It is an admitted fact that in those days the Friday was the public holiday and without informing the Lawyer when P.Ws. And petitioner visited the house of Lawyer who was not admittedly their old Lawyer, the Lawyer was in their waiting specially when the P.Ws. Have not claimed that they have not informed the Lawyer about their visit. The Munshi of the Lawyer was also present there. Admittedly the Lawyer is running his office not in his house, why the Munshi of Lawyer was present in the house of Lawyer. Further the Munshi has not appeared as witness especially when P.W.2 states that it is the Munshi who wrote and dispatched notices to respondents. There is another angle of the evidence of witness.
According to Muhammad Akhtar, Abdul Jabbar came to know about the pre-empted sale through the husband of vendor one Iqbal. The said Iqbal has not been produced in evidence. Iqbal was the most important witness for corroborating the knowledge of Abdul Jabbar. Admittedly Abdul Jabbar is not the employee of Revenue Department and his source of information is only Iqbal. It is established on record how Iqbal met to Abdul Jabbar and why he disclosed his personal affair to Abdul Jabbar. If incident of information and pronouncement of Talab was genuine why this fact was not mentioned in plaint. The plaint is completely silent about this incident.' The witnesses who appeared on behalf of petitioner have failed to disclose the true facts. There is a big gap between the statement of two witnesses as such the reasoning given by the learned Trial Court was logical and reasoning given by the learned Appellate Court about the incident is not correct. As far as the argument of learned counsel for the petitioner that the judgment (PLD 2007 SC 302) came subsequent to the institution of suit is devoid of merit. Admittedly when the authoritative judgment of Supreme Court of Pakistan was pronounced about the requirement of section 13 of Punjab Preemption Act, the suit was pending and as such the dictum of the above said judgment is fully applicable to the present proceedings.
8. In view of above it is established on record that the incident narrated by P.W.1 and P.W.2 about the knowledge of petitioner is concocted and is not credible especially when Abdul Rashid failed to appeal in witness box and as such the suit is bound to fail and the judgment appealed bound to prevail.
9. The appeal is dismissed with no order as to costs.