Through instant petition, the petitioner, has challenged the judgment and decree dated 13.1.2011, passed by the learned Additional District Judge-VII, Mardan, whereby he dismissed the appeal of the petitioner and maintained the judgment and decree of trial Court dated 1.7.2010.
2. Precisely the facts of the case are that respondent purchased property through Mmutation No, 842 dated 10.6.2008. The petitioner filed a suit for possession through pre-emption against the suit property through Suit No, 243/1 of 2008, which was contested by the respondent and through judgment and decree dated 1.7.2010, the learned trial Court dismissed the suit. Feeling aggrieved, the petitioner filed Civil Appeal No, 63/1 of 2010 and the learned Appellate Court through judgment and decree dated 13.1.2011, while maintaining the judgment of the learned lower Court, dismissed the appeal. Feeling still dissatisfied, the petitioner seeks redressal of his grievance through instant revision petition.
Arguments heard and record perused.
3. The learned counsel for the petitioner argued that the petitioner has established his right of pre- emption through examining the witnesses of `Talb-e-Muwathibat' and `Talb-e-Ishhad'. The suit was within time and all the `Talabs' were performed in accordance with law. He further submitted that mutation was attested on 10.6.2008 while the petitioner got knowledge of the sale on 11.6.2008 at 6:00 p.m. through Muhammad Tariq P-W.5. Notice was served through registered post AD on 18.6.2008 and the suit was filed on 27.6.2008. Thus all the requirements were made well within time.
He further submitted that all the witnesses were consistent on the material issue, thus both the Courts below failed to appreciate the evidence and apply the correct law in the circumstances of the case.
4. Conversely, the learned counsel for the respondent argued that there were inconsistencies regarding testimony of witnesses of `Talabs', thus the same were not reliable being unbelievable and unacceptable. The learned counsel further stressed with vehemence that the witnesses of plaintiff were not consistent on the point that whether the informer was in standing position or sitting position while passing information, thus they do not come within the definition of truthful witness. Lastly, he argued that concurrent findings of both the Courts below cannot be disturbed in limited revisional jurisdiction.
5. In order to see whether the plaintiff/petitioner has successfully performed and proved the requirement of `Talabs', this Court has noticed that the petitioner has mentioned in the plaint that he got knowledge of the sale on 11.6.2008 at 6:00 p.m., when he was present with one Niaz Ali and Fazal-e-Hadi sitting near their house beside a stream, where Tariq Khan P-W.5 informed him about the sale of disputed land. This fact is proved through recording statement of Niaz Ali P-W.6 and Muhammad Tariq P-W.5. The statement of both the witnesses are consistent with the statement of petitioner who recorded his statement as P-W.4. Similarly, the record keeper of GPO, Mardan was produced as P-W.3, in order to prove the receipt regarding sending of notice from GPO, Mardan.
Whereas Patwari Halqa' was produced to establish the fact that petitioner is co-owner in the property and has got superior right of pre-emption. The objection taken by the learned counsel for the respondent that the witnesses are not consistent about the condition of the petitioner whether he was in standing or sitting condition is very strange and funny. This fact is established that the moment the petitioner got information, he then and there performed the immediate lalb-e- Muwathibat' in presence of witnesses duly produced in Court.
6. This fact has judicially been taken notice by this Court as well as by the Apex Supreme Court of Pakistan that in case of pre-emption, the witnesses appeared after lapse of considerable period while deposing in Court, thus if there are any minor points gone unnoticed because of human faculty of memory, such testimony of witnesses should not be discarded on the basis of such minor discrepancies because after a lapse of considerable time the person cannot be expected to give 100% accurate statement on each and every minor point. This view was followed in Yar Muhammad vs. Bashir Ahmad (PLD 2003 Peshawar 179), Fazal Rehman vs. Mst Zavedi Jan (2005 CLC 1415), Hayat Muhammad vs. Mazhar Hussain (2006 SCM R 1410) and Abdul Latif vs. Dil Mir (2010 SCM R 1087). The contentions of the learned counsel for the respondent are misconceived and both the learned Courts below failed to appreciate this important factor in its true perspective, while delivering the impugned judgments.
7. It is settled principle of law that minor discrepancies or omission in the statement of witnesses, whose statements were recorded after sufficient time cannot mar to case of plaintiff. Such approach by Court below ran counter to sound judicial principles because rules and standards for appraisal of evidence in civil cases were different from those employed in criminal cases, as the law has laid down different standards of proof for different categories of cases. The petitioner established his right of pre-emption through the standard settled by law. The law does not favour that the pre-emptor would be thrown away just for technicalities.
8. It is well settled that if the revisional Court finds that the subordinate Courts have exercised their jurisdiction not legally and properly then it can legitimately interfere in finding of both the Courts below. There is no hard and fast rule that High Court cannot interfere in the concurrent findings, in exercise of its revisional jurisdiction. In the present case the Trial Court as well as the Appellate Court have wrongly interpreted the provision of Section 13 sub-section (3) of Pre-emption Act.
Since the learned Courts below have acted in disregard of law and well settled principles relating to appraisal of evidence, as a result whereof both have reached at a wrong conclusion resulting into miscarriage of justice, which is not immuned from correcting the same under the provision of Section 115 CPC.
Keeping in view the above facts and circumstances of case, this revision petition is accepted, both the impugned judgments and decrees' of learned Courts below are set aside and consequently the suit of plaintiff is decreed.
The market value assessed by the learned trial Court as Rs, 330,000/-, which has not been disputed in appeal as well as in this revision petition, therefore, the same is maintained. The petitioner is directed to deposit the same within a period of 40 days. However, if he has already deposited any amount in the trial Court, then the remaining amount shall be deposited within the above mentioned period.