' SHUJAAT ALI KHAN, J.---By virtue of this revision petition the petitioners have challenged judgments & decreesdated 31.10.2006 and 1.2.2007 passed by the learned Civil Judge-, Khushab and the learned Additional District Judge, Khushab, respectively.
2. Unnecessary details apart, the petitioners filed a suit for possession through pre-emption qua land measuring 35-Kanals & 6-Marlas. After framing of necessary issues and recording evidence of the parties the learned Trial Court dismissed the same vide judgment & decree dated 31.10.2006 against which the petitioners preferred an appeal before the learned Additional District Judge which too met with the same fate vide judgment & decree dated 1.2.2007; hence this petition.
3. Learned counsel for the petitioners contends that observation of the learned Trial Court that the requisite Talabs were not fulfilled by the petitioners within stipulated time is not maintainable as the sale, subject-matter of the suit, took place on 18.6.2000; that the agreement to sell, relied upon by both the Courts below, is of no worth as suit for pre-emption can only be filed against final sale; that the judgments of both the Courts below are result of misreading and non-reading of evidence; that the learned Trial Court only gave its findings under Issue No 5 and rest of the issues were left undecided, therefore, the impugned judgment of the learned Trial Court is not tenable and that Khasra Gardawri (Exh.P-11) negates the observation of the learned Trial Court. In addition to his oral submissions, learned counsel has relied upon the cases reported as Muhammad Inayat and 5 others v. Mst. Nisar Fatima (PLD 1994 SC 120), Hayat Muhammad and 8 others v. Tajuddin and another (1994 SCM R 1188), Muhammad Aslam and 4 others v. Surkharu Khan (2007 CLC 765), Syed Zulfiqar Hussain Naqvi v. Syed Gulzar Hussain Shah (2005 YLR 2817), Province of Punjab through Secretary to Government of the Punjab, Irrigation and Power Department, Lahore and another v.
Raoof Corporation (Pvt.) Ltd. (2004 CLC 1438), Mst. Feroza v. Anjuman Eittehad-e-Baluchan and others (2004 YLR 1535) and Muhammad Bakhsh and others v. Ghulanz Farid and others (K. L. R.
2000 Revenue Cases 107).
4. Conversely, learned counsel for the respondent submits that under section 115 of CPC this Court can only take care of any jurisdictional defect in the judgment of the Court below and there is no such defect in the impugned judgments, therefore, instant revision petition is not maintainable; that the petitioners being plaintiffs in a suit for pre-emption were under Obligation to produce original Acknowledgment Due receipt 'in the evidence which has not been done; that there is nothing on the record to prove that Zar-e-Soem, as ordered by the Trial Court, was ever deposited by the petitioners; that notice under section 31 of the Punjab Pre-emption Act, 1991, was not given by the petitioners/plaintiffs; that as the sale was struck between the parties by virtue of agreement to sell dated, 24.9.1998, therefore, the requisite Talabs were not performed within the stipulated period and that concurrent. Findings of facts cannot be upset in revisional jurisdiction. In support of his last submission, learned counsel has relied upon Muhammad Amir through L.Rs, v. Muhammad Sher and others (2006 SCM R 185).
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with this petition as well as the case-law cited at the bar.
6. Firstly taking up the question that which is the date from where the limitation for requisite Talabs shall be reckoned. According to section 5 of Punjab Pre-emption Act, 1991, the right of pre-emption is available to the plaintiff on the sale of immovable property. In this respect the observation of both the Courts below that as the agreement to sell was signed between the vendee and vendor the petitioners/plaintiffs were required to perform requisite Talabs within the stipulated, time from the date of execution of the agreement to sell. In this regard the observation of the learned Trial Court is not sustainable for the reason that an agreement to sell cannot be equated with final sale.
Reliance in this regard can be placed on the case of Mst. Nisar Fatima (Supra) wherein it has' inter alia been held as under:-- "In this case it is not disputed that the parties had expressed and intended that the sale would be complete only on the registration of the sale-deed and not earlier. Such being the, intention and the content of the document, the sale cannot be said to be complete with the execution of the agreement to sell nor possession obtained under the sale so as to afford' a cause of action to the pre-emptor to bring a suit."
7. Now corning to the objections raised by learned 'counsel for the respondent that as there is nothing on the record to show that Zar-e-Soern was ever deposited by the petitioners, therefore, this petition is liable to be dismissed on this. Score alone. On this point, I do not find myself in agreement with learned counsel for the respondent for the reason that judgments of both the Courts below are silent about this fact. Further, if Zar-e-Soem was not deposited by the petitioners/plaintiffs their suit ought to have been dismissed on the said score alone. The suit filed by the petitioners/ plaintiffs' was decided after tilin4 of written statement and framing of issues and the presumption is that the Zar-e-Soem was deposited by the petitioners/plaintiffs within the stipulated period.
8. Insofar as contention of learned counsel for the respondent qua jurisdiction of this Court to the extent of jurisdictional defect is conceited, suffice it to observe that it is well entrenched by, now that this Court while exercising its revisional jurisdiction can look into \fires of the judgments passed by subordinate Courts suo motu and scope of revision cannot be curtailed only to the jurisdictional defect.
9. There is no denying the fact that concurrent findings of facts recorded by the Courts below cannot be upset in revisional jurisdiction in routine, however, if the impugned judgments/orders otherwise are result of misreading and non-reading of evidence or misapplication of law on the subject, this Court has ample power to set aside the same. Reliance in this regard is placed on the case reported. As Mubarak All through L.Rs v. Ainroo Khan through L.Rs, (2007 SCM R 1714).
10. Further, a perusal of judgment of the learned Trial Court shows that the whole judgment is based on findings under Issue No, 5 whereas other issues have been dealt with in a very casual manner which approach, being contrary, to the law on the subject, cannot be approved of.
11. For what has been discussed above, instant revision petition is accepted, the impugned judgments & decrees are set aside and the matter is remanded to the learned Trial Court for decision afresh. Parties are direcied to appear before the Trial Court on 22.4.2013.