IJAZ-UL-AHSAN, J. ---" The petitioners assail judgment and decree dated 17.6.2004 passed by a learned Additional District Judge, Jhelum. Through the impugned judgment and decree the learned Appellate Court, while abcepting the respondent's appeal, set aside the judgment and decree of the learned Civil Court and decreed the suit of the respondent. The learned Civil Court had dismissed the suit of the respondent.
2. The brief facts of the case are that the petitioners purchased agricultural land measuring 9- kanals and 16-marlas vide mutation No. 513, dated 31.10.2000 from Dr. Javed lqbal for a consideration of Rs. 300,000/-. The respondent filed a suit for pre-emption alleging his right of pre- emption as co-sharer in a joint khata. He also claimed to be co-owner of adjacent land having common watercourse. It was alleged in the plaint that he came to know about the impugned sale through Muhammad lnayat son of Shah Muhammad in the presence of his son Amjad lqbal on 15.12.2000 at 3.00 p.m. At his residence. He immediately announced his intention to exercise his right of pre-emption. On 19.12.2000, he sent notice of Talb-e-Ishhad through registered post to the petitioners, who did not respond. Subsequently, he filed suit for possession through pre -emption.
The suit was contested by the petitioners. Out of divergent pleadings of the parties, the learned Trial Court famed as many as ten issues. Issue No. 2, being the pivotal issue, is reproduced below:-- -
2. Whether the plaintiff has fulfilled the requirements of talabs under Islamic law or Pre-emotion Act? OPP.
The respondent appeared as PW.1 and produced Muhammad Inayat son of Shah Muhammad as PW.2 and his son Amjad lqbal as PW.3. In documentary evidence the respondent produced 12 documents as Exh.P.1 to Exh.P.12. On the other hand, one of the petitioners namely Yar Muhammad appeared as DW.1 and also produced Dr. Javed lqbal, vendor as DW.2. The petitioners tendered documentary evidence as Exh.D.1 to Exh.D.5.
3. The learned Trial Court dismissed the suit of the respondent vide judgment and decree dated 28.5.2003. Feeling aggrieved of the said judgment and decree, the respondent filed an appeal in the Court of District Judge, Jhelum. The appeal was accepted vide judgment and decree dated 17.6.2004 and the suit filed by the respondent decreed. The petitioners are aggrieved of the said judgment and decree passed by the learned Appellate Court praying that the judgment and decree recorded by the learned Trial Court be restored and confirmed.
4. The learned counsel for the petitioners submits that the first Appellate Court erred in law in ignoring material discrepancies and contradictions in the evidence of the respondent. He submits that the learned lower Appellate Court drew unwarranted conclusions from the pleadings and evidence available on record. He further submits that the learned subordinate Court misread the evidence which resulted in miscarriage of justice. He has pointed out that it is evident from the record that petitioner No. 2 is an advocate practicing at Lahore. However, the respondent, who is his real uncle deliberately dispatched the so-called notice of Talb-e-lshhad at the address of village Sugharpur, Tehsil Pind Dadan Khan, District Jhelum. He has argued that the alleged performance of Talb-e-Ishhad is not a valid ,performance in the eye of law. The learned counsel has further pointed out that the vendor of the property, namely, Dr. Javed lqbal, who appeared as DW.2 deposed that he had asked the respondent if he wanted to purchase the property, he refused to do so and advised him to sell the property in question to the petitioner, who is the real nephew of the respondent. He also deposed that the respondent was present at the time of the mutation and was fully aware of the transaction.
5. The learned counsel further submits that the evidence of the respondent and his witnesses was contradictory on material facts, insofar as, PW-1 and PW-2 both claimed that they had dictated their identity card numbers to the scribe of the notice of Talb-e-Ishhad. However, the notice did not carry their Identity Card numbers. Similarly, the respondent claimed that he alongwith his witnesses and their counsel went to Pind Dadan Khan and remained there for one hour; whereas PW1 Muhammad lnayat belied the same by saying that they remained with him for 15/16 minutes.
As opposed to that, PW.3 Amjad lqbal deposed that they remained for about two hours with the scribe of the notice of Talb-e-Ishhad. Likewise, the witness deposed that notice of Talb-e-Ishhad was made on a stamp paper, whereas the alleged notice of Talb-e-lshhad available on record was on plain paper. The learned counsel finally argues that under the provisions of Punjab Pre- emption Act, 1991, Talb-e-Ishhad has to be made within two weeks from the date of knowledge of the sale. There was enough material on record to establish that the respondent had knowledge about the sale on the date it was made. However, he chose to send notice of Talb-eIshhad more than 11/2 month later. Consequently, he failed to establish Talb-e-Ishhad and the suit was correctly dismissed by the learned Trial Court.
6. The learned counsel for the respondent, on the other hand, submits that the respondent had no knowledge about the sale, mutations were concealed from him and the petitioners made every possible effort to ensure that the fact of sale remained secret. He submits that a presumption cannot be drawn that if the entire village knew about the sale, he knew about the sale too. He further submits that the allegation that the notice was sent at the wrong address is falsified by the fact that the same was sent at the address of petitioner No. 2 given in his written statement. He finally argues that an exercise of reappraisal of evidence cannot be undertaken in revisional jurisdiction.
7. I have heard the learned counsel for the parties and gone through the record.
8. The main question that requires determination is whether the respondent fulfilled the requirement of Talbs in accordance with the provisions of Punjab Pre-emption Act on the basis of the evidence and material available on the record. The answer has to be in the negative for the following reasons:---
(i) The respondent appeared as PW-1 and also examined both marginal witnesses of Talb-eIshhad namely, Muhammad lnayat s/o Shah Muhammad (PW.2) and his son Amjad lqbal, (PW.3). The evidence produced by the respondent is materially discrepant and contradictory in nature.
(ii) One of the witnesses namely Amjad lqbal is the real son of the respondent, whose evidence, being that an interested witness had to be carefully considered and could not blindly be accepted.
Reference in this regard may be made to NLR 2000 Cr. 650.
(iii) It also appears that a conscious effort was made to mis-state and conceal facts from the Court. It is interesting to note that despite the fact that petitioner No. 2 is the real nephew of the respondent, he expressed lack of knowledge about his vocation. However, his son PW.3 categorically admitted that petitioner No. 2 was lawyer practicing at Lahore. By misstating facts the petitioner has created doubts about being a truthful witness. It is an established principle of law that when a witness makes a false statement about one material issue, his remaining evidence cannot be believed. Reference in this regard may be made to AIR 1939 P.C.95.
(iv) Both PW.1 and PW.2 claimed that they had dictated their I.D. Card numbers to the scribe of notice of Talb-e-Ishhad. However, the notice did not carry their identity card numbers.
(v) There was complete contradiction between PW.1, PW.2 and PW.3 about the time spent in the office of their counsel when notice of Talbe-Ishhad was being drafted.
(vi) It is significant to note that Muhammad Inayat son of Shah Muhammad conceded that when the said land was sold on 31.10.2000, all residents of the village came to know about the same. It is strange to note that the petitioner, who is a retired patwari and admittedly lives in the same village, was the last to learn. About the sale and that too more than 11/2 month after the sale had taken place. He allegedly performed Talb-i-Muwathibat one and a half month after the actual sale. He allegedly came to know about the sale on 15.12.2000 which is not plausible.
(vii) Muhammad Inayat son of Shah Muhammad (PW.2) failed to state in his cross-examination when he had met the respondent for the last time prior to 15.12.2000, However, he knew the exact date of knowledge of sale and the exact date of dispatch of notice of Talb-eIshhad. His credibility is questionable.
(viii) PW.2 admitted that the plaintiff asked him to accompany him to Pind Dadan Khan the morning after he informed him about the sale. Reckoned from the date that he claims to have informed the respondent about the sale i.e. 15.12.2000, the next morning was 16.12.2000 and not 19.12.2000, when the notice was dispatched. This casts serious doubts about the veracity and truthfulness of the version canvassed by the respondent.
(ix) It is also noticed that admittedly the respondent was in possession of the suit property. As such it is hard to believe that he did not come to know about its sale for the next 11/2 month. Even otherwise, the parties are closely related, the petitioners being the nephews of the respondent. It is therefore hard to believe that the respondent remained ignorant about the sale for such a long period of time.
(x) The statement of the vendor namely Dr. Javed lqbal that he had offered the land in question to the respondent and he had refused -to purchase the same, has not seriously been contested. DW.1 and DW.2 were consistent on the point that the respondent was offered the land in question, was consulted in this regard and he had refused to purchase the land. On the question of consultation DW.1 was not specifically cross-examined nor was a suggestion put to him that he was not telling the truth. Consequently, this fact will be deemed to have been admitted by the respondent. I am, therefore, in no manner of doubt that the respondent came to know about the sale on 31.10.2000, when it took place and not on 15.12.2000 when he alleges and claims that he came to know about it.
(xi) Finally, notice of Talb-e-lshhad appears to have been intentionally sent at the wrong address.
Further, service was denied. The respondent should have produced the postman alongwith the postal record in evidence. The same having not been done, proof of due performance of Talb-e- Ishhad has also become doubtful. In this context reference may be made to 2007 SCM R 1105.
9. I find that the evidence produced by the respondent had material discrepancies and contradictions and the respondent failed to prove performance of Talb-e-Muwathibat within the time specified. Further, performance of Talb-e-Ishhad is also open to question. It is settled law that pre-emption is a feeble right and in order to succeed performance of the Talbs at the time and in the manner specified in law must be established to the hilt. I am not convinced that the respondent was able to do that on the basis of evidence produced by him before the learned Trial Court.
10. For the aforesaid reasons, this petition is allowed. The judgment and decree recorded by the learned first Appellate Court dated 17.6.2004 is set aside. The judgment and decree dated 28.5.2003 passed by the learned Trial Court is restored and confirmed. In result, the suit filed by the respondent stands dismissed.
Civil review .