' Through this single judgment, I intend to dispose of instant petition (CR No, 515-P/13) and connected CR No, 432-P/13, titled "Fazal Subhan -vs. Jan Bahadar" as both the petitions are arising out of one and same judgment dated 30.05.2013, passed by learned trial appellate Court whereby findings on Issues No, 1, 2, 3, 4, 5, 6, 11 and partial Issue No, 10, were maintained.
' Arguments heard record perused.
2. A perusal of record reveals that the respondent Fazal Subhan filed a suit for possession through pre-emption against the petitioner Jan Bahadar in respect of sale effected vide Mutation No, 4717 attested on 2.1.2012. It was averred in the plaint that on 13.1.2012 at 6.00 hours in the evening, the plaintiff came to know about transaction in dispute through Khan Muhammad who there and then announced to preempt the suit land and thereafter on 20.1.2012, notice Talb-e-lshhad' duly a ttested by two witnesses namely Khan Muhammad and Khaista Rehman was made in the name of defendant/petitioner. The parties led the evidence in support of their respective contentions and suit of the plaintiff was decreed on payment of sale consideration of Rs, 1,30,00,000/- (One Crore & Thirty Lac) mentioned in the disputed mutation alongwith decree of Rs,2,49,600/- as cost of improvement vide order dated 18.12.2012. The petitioner filed appeal against the said judgment whereas respondent also preferred appeal to the extent of market value of the suit land and learned Court of appeal vide consolidated judgment dated 30.5.2013 dismissed both the appeals, hence the instant petition alongwith connected petition filed by respondents to the extent of market value.
3. Learned counsel for petitioner has advanced arguments only on Issues No, 4 & 6 relating to performance of Talbs and waiver. Prior knowledge or waiver on the part of the respondent has not been proved on record. The evidence of petitioner to this effect has been property evaluated by the Courts below who has failed to prove substantiated his stance regarding waiver. Even otherwise there is no active participation of preemptor in the transaction of sale. Mere deposition of one of the vendors that he wanted to sell the property to the plaintiff but transaction could not be effected and later on it was sold to the defendant /vendee would not amount to waiver. So far as the Talbs are concerned, the averment made in the plaint by plaintiff/respondent have been reiterated by plaintiff and proved through production of informer and witnesses of Talb-e-Ishhad. No contradiction, even minor in nature, could be pointed out by petitioner nor the findings of Courts below concurrently arrived at have been proved to be misdirected or misled by the Courts below and as such conclusion arrived at are not open to any exception.
4. As far as market value of the suit land is concerned, the plaintiff/respondent (petitioner in connected Petition No, 432-P/13) has claimed Rs,31,20,000/- in the plaint as market value of the suit but this version has not been reiterated with the aid of confidence inspiring evidence. Mere oral assertion of the plaintiff to the effect that the property was sold for the amount mentioned in the plaint would not prevail over the documentary evidence supported by the statement of the vendor to the effect that the amount was bonafidely entered in the mutation, burden squarely lies upon the plaintiff to prove that the sale made in lieu of Rs,31,20,000/-who has failed to discharge the same and findings to this effective arrived at on Issues No, 7 & 8 are also not open to any exception.
5. Both the learned counsel for the parties pointed out mistake in the judgment of learned Court of appeal to the extent of improvement shown as 24,96000 which is in fact 249600 and submitted that necessary correction be made as Rs,2,49,600/- instead of Rs,24,96,000/- which is accordingly made and to be read and considered as Rs,2,49,600/-.
6. Learned counsel for petitioner submitted that Issue No, 10 in respect of standing trees as to whether these were included in the transaction of sale, the trial Court has observed while deciding the issue in favour of defendant that defendant is not entitled to the claim of cost of trees in the instant suit as these were purchased by the son of defendants who happens to be the attorney of the defendant. The son of the defendant has not been made party to the suit. The Court of appeal has not given any finding to this effect. The respondents have not questioned the same in their separate appeals as well as connected CR as the same confines only to Issue Nos. 7 to 9, market value of the suit land. The trial Court has held that the son of defendant has purchased the tree from vendor Ali Sher Khalil for sum of Rs, 6,00,000/- and to this effect the receipt Ex.DW.2/2 was also produced and declared the son of defendant entitled to cost of standing trees. However in order to eliminate the agony of parties and to save them from further round of litigation with special reference to the fact that plaintiff has not questioned the findings of trial Court on Issue No, 10, I deem it appropriate to held that the defendant is entitled for the cost of standing trees on his behalf & to be paid by him to his son. The plaintiff is bound to pay the same to the defendant as the right of defendant through his son/attorney stands established videfindings on Issue No, 10 in the judgment of trial Court in exercise of powers vested under Order VII Rule 7, CPC r/w Section 151, CPC.
' For the aforesaid reasons, the instant petition alongwith connected CR No, 432-P/13 are disposed of in the above terms.
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