' ZAFAR AHMED RAJPUT, J.--- This Civil Revision under section 115, C.P.C. Is directed against the judgment and decree dated 22-8-2009 passed by Additional District Judge-V, Sukkur whereby Civil Appeal No.27 of 2009 filed by the applicant against the judgment and decree dated 24-2- 2009 and 28-2-2009, respectively, passed by Senior Civil Judge-II, Sukkur in F.C. Suit No. 135 of 2006 (Old No. 01 of 1999) was dismissed.
2. The brief facts of the case are that the applicant/plaintiff filed a suit for possession through pre- emption and permanent injunction on 4-1-1999 in the Court of Senior Civil Judge-II, Sukkur averring therein that he is owner of a'house bearing C.S. NO.C.443/10-F, situated at Upper Queen's Road, Sukkur, while the respondent No.3 was his neighbour being owner of adjacent house bearing C.S. No.C-442/6, admeasuring 368/3 sq.Yds., situated at Queen's Road, Sukkur (hereinafter referred to as the "suit property"), who sold out her said house to respondents Nos.1 and 2 by way of two separate registered Sale Deeds Nos.24 and 25, registered on 8-1-1998 with Sub-Registrar, Sukkur. It is also stated that when on 24-10-1998 it came into knowledge of applicant, he immediately made Talb-e-Muwasibat before the informer Shahabuddin as the property was adjacent to his house; therefore, he was Shafi-e-Jar. It is further stated that on the same day viz. 24-10-1998 the applicant came at the house of respondents Nos.1 and 2 but they avoided to meet with him; therefore, in presence of witnesses Shahabuddin and Muhammad Salah, he made Talb-e-Ishhad at the suit property, by referring first demand.
3. The respondents Nos.1 and 2 filed their joint written statement on 18-2-1999 contesting the suit on legal and factual grounds, wherein they have admitted that the respondent No.3 is the owner of the suit property; however, denying the assertions of applicant, they have alleged that the suit property is not situated adjacent to house of the applicant, as such, he is not Shafi-e-Jar. They have also denied the claim of applicant that he had made Talb-e-Muwasibat and Talb-e-Ishhad.
4. Out of pleadings following issues were settled by the learned trial Court:---
(1) Whether the suit is not maintainable under the law?
(2) Whether Talbs as required under Muhammadan Law have been made by the plaintiff?
(3) Whether the property of the plaintiff is adjacent to the property of the defendant No.3 and the plaintiff is Shafi-e-Jar?
(4) Whether the plaintiff is entitled for any relief?
(5) What should the decree be?
5. In support of his claim the applicant examined himself as Exh.61 who produced the certified' true copy of Extract From Property Registered Card at Exh.62; certified copies of Sale-Deeds Nos.24 and 25 at Exhs.63 and 64; certified copy. Of the sketch of C.S. No. 442/6 and 443/10-E at Exh.65. He produced P.W.-2 Shahabuddin as Exh.66 and P.W-3 Muhammad Salah as Exh.67.
6. In rebuttal the respondent No.1 examined himself as Exh.76 who produced certified copy of Extract From Property Registered Card as Exh.76/A. Respondent No.2 Mst. Asfa examined herself as Exh.77.
7. After assessing the evidence on record, the learned Senior Civil Judge-II, Sukkur decided all the issues against the applicant and dismissed the suit vide judgment and decree dated 24-2-2004 and 28-2-2009, respectively. Civil Appeal No.27 of 2009 arising out of the same was also dismissed by the learned Additional District Judge-V, Sukkur vide judgment dated 22-8-2009. Aggrieved by the same the applicant has preferred this revision application.
8. Mr. Abdul Qadir Shaikh, Advocate for the applicant has contended:---
(i) That the suit of the applicant is maintainable in law as the suit property was sold out by the respondent No.3 to respondents Nos.1 and 2 and the applicant being Shafi-e-Jar has legal right to maintain the present suit.
(ii) That, the applicant made the required talbs in accordance with Muhammadan law.
(iii) That the applicant has proved through oral and documentary evidence that he is Shafi-e-Jar and in this regard he produced the certified copy of the sketch as Exh.65, and respondent No.1 has also admitted in the cross-examination that applicant's property is situated adjacent to the suit property from the Eastern side, but the Courts below have not considered the said oral and documentary evidence of the applicant, thus committed procedural irregularity justifying the remand of the case.
'In support of his arguments, Mr. Abdul Qadir Shaikh has relied upon the case of Amjad H. Malik v.
Razia Begum 1989 SCMR 1414.
9. In rebuttal, Mr. Zafar Eidan Mangi, Advocate for the respondents Nos. 1 and 2 has stated:---
(i) That suit was not maintainable under the Muhammadan Law as the suit property was not available for sale.
(ii) The Courts below rightly dismissed the suit of the applicant as the evidence produced by him is inconsistent with the plaint and self-contradictory.
(iii) That the applicant has failed to make out any case of remand as the oral as well as documentary evidence on record has been thoroughly discussed by the Courts below.
(iv) That the concurrent findings of facts cannot be interfered in revisional jurisdiction in absence of any misreading, non-reading or jurisdictional error.
' In support of his arguments, Mr. Zafar Eidan Mangi has relied upon the cases of Rehmat Ali and others v. Muhammad Nazir, 1997 MLD 1017 and Jadal v. Abdul Majeed and 2 others PLD 1978 Karachi 732.
10. Before adverting to the arguments of Mr. Abdul Qadir Shaikh, learned counsel for the applicant, it may be mentioned that it is now well-settled principle of law that powers of High Court in revisional jurisdiction under section 115, C.P.C. Are very limited. On reappraisal of the evidence, even if a different view is possible, the High Court cannot substitute its own view and upset the findings of facts concurrently arrived at by the Courts below. Such findings can only be interfered with if the Courts below have misread and misconstrued the evidence on record or have committed any jurisdictional error or any material irregularity and illegality in arriving at such findings.
11. Reverting to the arguments of Mr. Abdul Qadir Shaikh on the point of maintainability of the suit under Muhammadan Law, I would like to reproduce here para No. 232 of D. F. Mulla's Principle of Muhammadan Law, as under:-- "Sale alone gives rise to pre-emption,--- The right of preemption arises only out of valid, complete and bona fide sale. It does not arise out of gift (hiba), sadaqa, waqf, inheritance, bequest, or a lease even though in perpetuity. Nor does it arise out of a mortgage even though it may be by way of conditional sale, but the right will accrue, if the mortgage foreclosed".
' It appears from the perusal of the impugned judgments that the lower. Courts below have given the findings on this issue in the light of Muhammad Law after scrutiny of the evidence on record.
' It may be observed that in para 5 of the plaint, the applicant has stated that on 24-10-1998 he came to know about deal in respect of sale of suit property and immediately made Talb-e- Muwasibat before informer Shahabuddin, as his property is adjacent to the property of defendant No.3, therefore, he is Shafi-e-Jar. P.W-2, Shahabuddin has stated in his evidence (Exh.66) that he has a small flat and wanted to purchase a big flat; therefore, he went to the broker on 23-10-1998 who disclosed him that one residential house situated at Queen's Road was available for sale; that he went with broker and saw the house, which was adjacent to the house of plaintiff/applicant; that on next day he met with plaintiff and told him that his adjacent house was available for sale; that the plaintiff told him that he wanted to exercise his right of preemption.
' It is crystal clear that as per statement of P.W-2 Shahabuddin the house was not sold on 23-10- 1998, but it was shown to him by the broker as "available for sale" and then he informed the applicant that the house situated adjacent to his house was available "for sale". Certified true copies of the sale-deeds, produced by the appellant as Exh.63 and Exh.64 reveal that the sale- deeds were executed by the respondent No.3 in favour of respondents Nos.1 and 2. On 8-1-1998, with Sub-Registrar, Sukkur where under the possession of the suit property to the extent of 0-50 paisa share of each vendee (respondents Nos.1 and 2) had already been handed over to them by the respondent No.3: Meaning thereby, the respondent No.3 was owner of the suit property the most up to 8-1-1998. Hence, the applicant's contention that on 24-10-1998 he came to know through Shahabuddin about the deal of sale of the suit property between respondents Nos.1 and 2 and respondent No.3, who is his neighbour and the owner of suit property appears to be bereft of reason. On 8-1-1998 the respondents Nos.1 and 2 took the possession of the suit property and definitely it would be in the knowledge .Of applicant that the respondent No.3 have sold out the suit property to respondents Nos.1 and 2, then after 9-1/2 moths of the alleged sale of suit property applicant decided to make a case of pre-emption and managed it.
' The extract of above discussion is that the suit property was I neither available for sale on 24-10- 1998 nor it was sold out thereafter; therefore, the applicant's suit for pre-emption is not maintainable.
12. Now reverting to the next limb of arguments of Mr. Abdul Qadir Shaikh that the applicant made the required Talbs in accordance with Muhammadan law, I would like to reproduce here para No.236 of D.F. Mulla's Principle of Muhammadan Law, as under:--- "Demands for pre-emption.-- No person is entitled to the right of pre-emption unless:-
(1) he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talb-iMuwasibat (literally, demand of jumping, that is immediate demand); and unless
(2) he has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talb-e-Muwasibat had already been made, and has made a formal demand---
(a) either in the presence of the buyer, or the seller or on the premises which are subject of sale, and
(b) in the presence of at least two witnesses. This formality is called Talib-e-Ishhad (demand with invocation of witnesses)"
' It may be observed that in paras 6 and 7 of the plaint, the applicant has stated that on 24-10-1998 he went to the house of defendants Nos.1 and 2 but they avoided to meet with him to face his right of pre-emption as he wanted to exercise Talb-e-Ishhad before them in presence of two witness, namely, Shahabuddin and Muhammad Salah; that thereafter on very same day he went to the suit property and made second demand i.e. Talb-e-Ishhad in presence of above-named two witnesses. The applicant in his deposition has also stated that he along with his witnesses went to the suit property and made second demand Talb-e-Ishhad. P.W-2 Shahabuddin and P.W-3 Muhammad Salah have stated in their deposition that on 23-10-1998 they went along with applicant at the house of defendant's No.1, situated at March Bazar, Sukkur and ring the bell on that one boy came out from his house, the applicant asked him to inform the defendant No.1 that they want to meet with him in respect of suit property for claiming the demand; that the boy went in the house and after some time he came back and told him that defendant No.1 did not want to meet with him; thereafter, they came back to the house of applicant and the applicant shaken hands to the suit property and demanded for pre-emption as second demand. It is understandable from the statements of both P. Ws. That the applicant shaken his hands in his house to the suit property, meaning thereby the Talb-e- Ishhad was not made on the suit property. As per para 236(2)(e) of the Muhammadan Law the Talb-e-Ishhad must be made either in presence of the buyer, or the seller, or on the premises which are the subject-matter of sale. Since the house of applicant was/is not subject matter of the sale, the Talb-e-Ishhad made at his house is not in accordance with Muhammadan Law. This omission is fatal to the claim of the applicant. Pre-emption needs strict proof. The right of preemption being in the nature of a piratical right the Courts have always leaned(sic) against it and while allowing such a right have always insisted upon a strict compliance of the law applicable to pre-emption. Reference may be made to Lal Khan's case reported in 1973 SCMR 252.
13. Now regressing to the next appendage of arguments of Mr. Abdul Qadir Shaikh that the documentary and oral evidence was not considered by the Courts below, it may be observed here that the applicant produced sketch as Exh.65 in respect of the suit-land, which shows that the suit property is situated adjacent to the property of applicant and that D.W.1, Muhammad Mehtab Khan has deposed in his cross examination that the property of applicant is adjacent to the suit property from the Eastern side. The learned trial Court has not considered Exh.65 and alleged piece of evidence of D.W.-1 while, discussing the Issue No.3. It appears from the perusal of case file that the learned lower appellate Court has referred the sketch (Exh.65) in last page of the judgment. While, the applicant has himself clearly admitted in cross-examination that the suit property is not situated adjacent to his house, therefore, alleged piece of evidence of D.W-1 is of no significance.
' I am not in agreement with the learned counsel for the applicant that such non-reading of evidence amounts to procedural irregularity justifying the remand of case to learned trial Court.
The case of Amjad H. Malik v. Ms. Razia Begum and others, 1989 SCMR 1414, relied upon by the learned counsel is distinguishable as no case of misreading or non-reading of evidence is made out. The learned Courts rightly decided the issues which does not effect the validity of their decisions. The learned Courts arrived at concurrent findings of facts after considering the evidence available on record which has the effect of turning down the case of applicant.
' In view of the above as no case is made out on the ground of any material irregularity or exercise of jurisdiction not vested in the Courts or failure of exercise of jurisdiction vested in it and the impugned judgment does not call for any interference or exercise of discretion on any point of law in this case of concurrent finding. Accordingly, this instant revision application is dismissed.