ZAKAULLAH LODHI, ACTG. C. J.-Respondents Nos. 5 to 8 (hereinafter described as contesting respondents) allegedly purchased some agricultural land, adequately described in the plaint, and this transaction was mutated in the revenue records as an exchange. The petitioner who owned adjoining land, in order to assert his right of pre-emption filed a suit in the Court of Assistant Commissioner, Sibi who tried the case under Civil Procedure (Special Provisions) Ordinance, 1968 (hereinafter referred to as the Ordinance). Among others it was stated in the plaint that the transaction was in fact in the nature of sale but to defeat his right of pre-emption it was termed to be an exchange. He also asserted to have made necessary "Talabs" before filing the suit. In their written statement the contesting respondents did not deny the transaction but asserted that it was an exchange, therefore, right to pre-empt the disputed land did not accrue to the petitioner. The Assistant Commissioner, Sibi after collecting the pleadings referred the case to the Tribunal on 22nd September, 1973 and also framed the following issues :-
(1) Whether the suit of the plaintiff for pre-emption is correct? If so what relief can be granted? And
(2) Whether the Tribunal wants to make any other recommedations?
2. The very order of reference was challenged by the contesting res--pondents by way of appeal to the Commissioner, Sibi Division who set it aside on 11th November, 1974. The petitioner filed a revision petition to the Member, Board of Revenue against the order of the Commissioner who accepted the same. This revisional order was also unsuccessfully challenged in this Court by the respondents. As a result of this the order of the Assistant Commissioner occupied the field. The case was tried by the Tribunal, who after examining the parties arrived at the conclusion by Majority that the transaction was in the nature of Exchange, therefore, there was no occasion to assert the right of pre-emption. One of the members. However, gave dissenting view. Accordingly the Deputy Commissioner agreeing with the majority, dismissed the petitioner's suit on 20th November 1976.
3. The Deputy Commissioner's order was challenged in appeal before the Commissioner, Sibi Division and it was mainly contended that ample opportunity to lead evidence was not given to the petitioner. Accordingly the Commissioner remanded the case back to the Tribunal with the directions to record evidence of all the parties and return the file to him. He fixed a date for this purpose obviously to avoid any unnecessary delay. On 30th April, 1977, the case was submitted to him after recording additional evidence. However, he again remanded it to the Tribunal to give finding on the two issues framed by him, namely :- "(1) Whether the transaction of transfer of the pre-empted land is an exchange or sale ?
(2) Has the plaintiff-appellant a right of pre-emption ?"
Here it may be remarked that these issues did not clinch any such controversy which was not covered by the issues framed earlier. However, the case went back to the Tribunal with the directions to record their findings on the above-noted issues on the basis of evidence already on record. This time the finding was split into three divergent opinions. Two of the members held the transaction in question to be an Exchange, the other two held it to be sale while the Chairman of the Tribunal also held it to be sale, but he further held that as the petitioner had failed to prove that he had made the requisite demands, the suit was liable to dismissal. The Commissioner instead of deciding the case himself referred the parties to a pious person by the name of Haji Mir Ahmed and further complicated a simple case. The petitioner however, did not approach this gentleman and the Commissioner was obliged to hear the case himself. He dismissed the appeal on 25th June, 1977. As against this order the petitioner preferred a revision petition -hick too was dismissed on 29th December, 1977.
The petitioner has assailed the order of Deputy Commissioner dismissing his suit on 20th November, 1976, the Appellate Order dismissing the appeal slated 25th June, 197'7 and the -order passed by the Member, Board of Revenue who dismissed the revision petition on 29th December.
1977.
4. Mr. Muquim Ansari, Advocate appearing for the petitioner firstly contended that the Commissioner while remanding the case to the Tribunal after framing the abovesaid issues did not allow the recording of further evidence by the parties which prejudiced the petitioner's case. He in fact treats the issues framed by the Commissioner different than those which the Assistant Commissioner had settled earlier. That not being so, the' argument is altogether misconceived. Let it be said here that the points desired to be determined by the issues framed at two occasions aimed at finding out as to whether the transaction was in the nature of sale or exchange. On this point the petitioner had already produced the evidence and the position could not be improved by simply adding to the number of the witnesses. The contention has, therefore, no force. While disposing of this contention, we may also mention that Mr. Muquim Ansari Advocate has also made a grievance that at the earlier stage also, his entire evidence was not brought on record and by that his case was adversely affected. We have perused the record and find that after examining the evidence of their choice, the petitioner brought an application after about three and a half years praying for adducing more evidence and this belated application was rightly dismissed.
5. Mr. Ansari next contended that it had been clearly stated in the plaint that two "Talabs" had been made by the petitioner in accordance with Muhammadan Law and this fact was not denied in the written statement, therefore, learned Commissioner while concurring with the findings of the Naib- Tehsildar to the effect that although the transaction was in the nature of sale, but the petitioner's suit could not be decreed as he did not make mandatory "Talabs", was patently erroneous. He relied upon the provision of Order VIII, rule 5, C. P. C. Read with section 58 of the Evidence Act. These provisians lay down that on averments not in controversy between' the parties, no issues were to be framed and in the instant case it was asserted that "Talabs" had been made and such averment was not denied. But the legal position is that the fact of making `Talab' is to be proved with all its attending circumstances such as the time of making the `Talab', its form and contents.
And the witnesses, if any, to such `Talab'. Unless these facts are proved the burden of the petitioner would not be discharged simply by saying that he made the `Talabs' or its acceptance by the other side. Therefore, the onus lay heavily upon the petitioner to show that he made such `Talabs' in accordance with law and such a proof not forthcoming, the Naib-Tehsildar and the learned Commissioner, rightly held the suit liable to dismissal. Haji Sarfaraz Khan, Advocate appearing for the respondents referred us to section 3(a) of Regulation II of 1913 which requires that in case of pre-emption the rule of decision shall be the Muhammadan Law. These provisions when read with section 10 of the Ordinance, requiring that the decision of the cases shall be in accordance with the law or the custom or usage having the force of law, it becomes crystal clear that the proof of the petitioner's claim rested on three elements. The first being that the transaction was in the nature of sale, the second that the first and second 'Talabs' were made in time and in such terms as were recognized by Muhammadan Law, and the third that the suit was brought in Court within time. The findings of facts of the Naib-Tehsildar and the Commissioner which were also upheld by the Member, Board of Revenue reveal that there was no proof of 'Talabs' and this being a fundamental requirement, the suit was bound to fail. Here it B may also be remarked that the C. P. C. Does not strictly apply to the proceedings drawn under the Ordinance, though its principles may be followed C to facilitate the proceedings. Moreover the decisions of the Court below are based on the findings of facts. Their decisions may be erroneous but they are neither without jurisdiction nor in excess or abuse of jurisdiction. Accordingly there is no justification to interfere with the same in our extra--ordinary constitutional jurisdiction. (See Muhammad Hussain Munir and others v. Sikandar and others (1), Pir Muhammad Farid Jan v. Colonisation Officer, Sukkur Barrage, Hyderabad and others (2) and Ghulam Sarwar v. Member, Board of Revenue II Baluchistan and 4 others (3).
7. The above are our reasons for dismissing the petition with no orders as to costs vide short order dated 7th June, 1981.
(1).PLD1974SC139 (2)PLD1965SC399