' LIAQAT ALI SHAH, J.--- Through this petition under section 115, C.P.C., the petitioner has challenged the legality of the judgment and decree dated 19-1-2009 of the learned Additional District Judge, Charsadda vide which the appeal of the respondent-defendant, against the judgment and decree of Civil Judge-VII, dated 10-7-2008, was allowed. It was held that the petitioner plaintiff had not proved the performance of Talb-e-Muwathibat and consequently the judgment/ decree of the learned trial Court was reversed.
2. Brief facts of the case are that Asif Rashid petitioner-plaintiff filed suit against the respondent- defendant exercising his superior right of pre-emption with regard to Mutation No.1698 attested on 26-4-2006 through which an area of 15 Kanals in Khata Nos.125/327 to 338 measuring 793 Kanals and 1 Marla situated in village Aziz Abad, Tehsil and District Charsadda was sold by the vendor to the defendant-respondent. It is averred by the petitioner-plaintiff that the transaction had been made secretly for the sum of Rs.5,00,000 but in order to defeat the pre-emption right of the plaintiff, an exaggerated amount of Rs.10,00,000 was entered in the mutation. It is further stated in the plaint, that the petitioner-plaintiff came to know about the sale in question on 8-7-2006 at 2-00 p.m. In his Hujra at village Shpano when Murad Ali son of Ashraf-ud-Din P.W.7, in presence of Khalid son of Lal Zamin P.W.6 and Mir Nawaz son of Multan P.W.5, informed him about the sale of the property in dispute and he declared Talb-e-Muwathibat in their presence at the same time. It has been further stated that on 15-7-2008 he sent registered notice of Talb-e-Ishhad in the name of the defendant- respondent with acknowledgement due.
3. The suit was contested by the respondent-defendant by filing written statement wherein various legal and factual pleas were raised. From the pleadings of the parties, the following issues were framed. :--
(1) Whether the plaintiff has got a cause of action?
(2) Whether plaintiff is estopped to sue?
(3) Whether suit is time-barred?
(4) Whether plaintiff has fulfilled the. Prerequisite condition of Talbs?
(5) Whether plaintiff has got superior right of pre-emption?
(6) What is the market value of the land in dispute?
(7) Whether in case of decree defendant would be entitled for expenditure incurred on the land in dispute?
(8) Whether plaintiff is entitled to the decree as prayed for?
(9) Relief.
4. After recording pro and contra evidence of the parties and hearing rival arguments, the learned trial Court decreed the suit vide judgment and decree dated 10-7-2008.
5.. The defendant-respondent preferred an appeal before the appellate Court. The learned Additional District Judge, Charsadda vide judgment dated 19-1-2009 reversed the judgment/decree dated 10-7-2008 by holding that the petitioner-plaintiff has failed to establish the performance of Talb-e-Muwathibat. About Talb-e-Ishhad, the learned appellate Court has observed that "receipt of notice by the son of the respondent does not stand establisheu. .
However, as observed in 2006IA SCMR page 4 and 2008 M LD 307 (Lahore), receipt of the notice is immaterial. It is to be noted that when as in the present case Talb-eMuwathibat is not proved, performance of Talb-e-Ishhad is inconsequential in nature having got no value in the eyes of law.
The findings of the learned trial Court on issue No.4 are liable to be reversed in the circumstances".
In para.15, the learned appellate Court has observed that "in light of what has been discussed above, the appeal in hand is partially accepted to the extent that the respondent has not performed the Talb-e-Muwathibat and Talb-e-Ishhad. The impugned judgment/decree is modified accordingly."
6. I have heard arguments from both sides, considered the same and perused the record with the valuable assistance of the learned counsel for the parties.
7. The learned counsel for the petitioner contended that the first appellate Court has materially erred by holding that the petitioner/ plaintiff has failed to establish the performance of Talb-e- Muwathibat and that the evidence has not been appreciated according to the principles laid down for appreciation of evidence in the civil cases. It was further contended that the evidence in the case was perused and evaluated by the learned appellate Court against the principle of appreciation of evidence and as such committed material irregularity; that the appellate Court has erred by picking a single sentence from the statement of P.W.4 petitioner wherein it is so recorded that {{URDU TEXT}} that the sentence can either be a slip of tongue or typographic mistake as the entire evidence is consistent on all material points including that the plaintiff was informed about the sale by Murad Ali; that the petitioner has established his right of pre-emption, cause of action and has complied with all the formalities required under section 13 of the N.-W.F.P.
Pre-emption Act.
1987.
8. On the other hand, the learned counsel for the respondent-defendant submitted that the revisional Court, on reappraisal of evidence, is not required to disturb the finding on a question of fact recorded by the appellant Court. Further that the same cannot be interfered with by the revisional Court under section 115, C.P.C. Merely because on reappraisal the revisional Court forms a different opinion about the evidence and that such finding could only be set aside if the same had proceeded upon on misapprehension or had suffered from misreading or non-reading of material piece of evidence on record. The learned counsel further argued that the judgment of the appellate Court is based on proper appreciation of evidence and the suit of the petitioner/plaintiff has rightly been dismissed. However, he was not happy with the finding of the learned appellate Court about Tale-e-Ishhad.
9. It is the case of the petitioner in plaint as well as in his statement in Court that he was informed by Murad Ali- P.W.7 at about 2-00 p.m. About the sale in question in presence of P.W.6 Khalid and Amir Nawaz P.W.5. The said Khalid and Amir Nawaz also appeared in the Court at P.W.5 and P.W.6 while Murad Ali informant appeared as P.W.7. All the three P. Ws supported the stance of the plaintiff on every material aspects. . It was only a sentence in the cross-examination of. P.W.4 petitioner/plaintiff which has been reproduced in the preceding paras., that led the appellate Court to the conclusion that if the informant had not met the plaintiff on 8-7-2006, how could the plaintiff allege that he was informed by the said informer and consequent upon such information he performed Talb-e-Muwathibat. While holding so, the learned appellate Court has altogether ignored the consistent evidence of the three witnesses, thoroughly cross examines' by the other side but nothing contradictor could be ,brought from them and such evidence could not have been discarded on the basis of a,single sentence more particularly when the sentence is totally inconsistent with the evidence produced by the petitioner/plaintiff in this case. .
10. On going through the entire cross-examination of the plaintiff/P.W.4 including the sentence under discussion, the submission of the learned counsel for the petitioner seems to be convincing one. This sentence is either a clerical mistake on part of the official who was recording the st-, 'ment or a slip of tongue on part of P.W.4. In 2007 PLR 768 at page 771 in para.7, it has been observed that the standard of appraisal of evidence in civil cases is different from that applied in criminal cases as both the laws have laid different standard of proof. Similarly in 2009 CLC 223, it was observed by the Honourable High Court:--- "After perusal of evidence of P.W.2, P.W.3 and P.W.4 as a whole, the mentioning of date by P.W.3 as 10-8-2000 can be termed as a slip of tongue and the same could not be made basis for outright rejection of the claim of the petitioner"
11. . After taking into consideration the evidence of the P.Ws as a whole, I hold that the single sentence is either slip of tongue or a clerical mistake and the plaintiff has proved the making of Talb-e-Muwathibat through evidence which is consistent and confidence inspiring.
12. So far Talb-e-Ishhad is concerned, the learned appellate Court in para.13 of its judgment has held that when Talb-e-Muwathibat is not proved, performance of Talb-e-Ishhad is inconsequential having got no value in the eyes of law. It has been mentioned in the plaint and established in the evidence, and admitted by the appellate Court that notice was prepared and sent by the plaintiff to the defendant but the receipt thereof, by the son or the defendant does not ,stand established.
At the same time, the learned appellate Court has observed, with reference to case-law that receipt of the notice by the defendant is immaterial. The finding of the learned appellate Court that "to establish the receipt of notice by defendant is not material" is based on proper appreciation of law as under the law, a pre-emptor is required to establish that notice was prepared and sent to the defendant in accordance with law. A pre-emptor is not required to prove that the same was received by the defendant. .
13. . The upshot of the above discussion is that the finding of the learned Appellate Court on the relevant issue is not based on proper appreciation of evidence, as such I accept this petition, set aside the impugned judgment/decree of the learned appellate Court and restore that of the learned trial Court with no order as to costs. .