' ABDUL LATIF KHAN, J.---Through this single judgment, I propose to dispose of instant C.R. No,454 of 2011 and connected C.R. No, 515 of 2011 as both the petitions are the outcome of one and the same judgment and decree.
2. Brief facts giving rise to the instant petitions are that Hakim Khan plaintiff filed a suit against Muhammad Amjad Wali, Asad Wali and Muhammad Waqas defendants for possession through pre-emption in respect of land purchased by the defendants through Mutation No,232 dated 16-4- 2013 in lieu of sale consideration of Rs.45,250 but in order to defeat the right of pre-emption of the plaintiff, an inflated amount of Rs.90,500 was entered in the sale mutation.
3. The suit was contested by the defendants by submitting their written statement. The learned trial Court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the arguments of learned counsel for the parties, the learned Civil Judge, Paharpur decreed the suit in favour of plaintiff vide judgment and decree dated 9-2-2010.
4. Aggrieved of the judgment and decree dated 9-2-2010, the defendants preferred an appeal whereas the plaintiff filed Cross objections to the extent of findings of trial Court on issue No 6. After hearing the arguments of learned counsel for the parties, the learned Additional District Judge Paharpur, D.I. Khan dismissed the appeal as well as Cross Objections vide judgment and decree dated 1-7-2011, hence the instant revision petitions.
5. Learned counsel fur the petitioners/defendant's contended that in Para-3 of written statement, petitioners/defendants specifically denied the receipt of notice Talb-e-Ishhad and it is the plaintiff who has to prove the delivery of notice Talb-e-Ishhad upon the defendants. It was added that neither postman produced nor. AID cards brought on record through evidence. He contended that plaintiff failed to perform Talbs as required under the law. He argued that plaintiff had prior knowledge of sale, as he obtained Fard from Patwari Halqa as reveals from Poznamcha Waqiati serial No,253. He argued that Courts below have travelled beyond jurisdiction and the judgments warrant interference by this Court.
6. As against that, learned counsel for the respondent/plaintiff (petitioner in connected C.R.No,515/2011 arising out of the same impugned judgment, in respect of issue No,6, market value) contended that the Courts below have ignored the provisions of section 28 of the NWFP Pre-emption Act, 1987 while deciding issue No,6. It is added that amount mentioned in disputed mutation has been considered whereas averages have been ignored, without any reason and justification.
7. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their able assistance.
8. The perusal of record reveals that plaintiff, Hakim Khan, instituted suit for possession through pre-emption against the defendants in respect of Mutation No,232 attested on 16-4-2003 for sale consideration of Rs.90,500. He alleged that on 8-8-2003 at 0530 hours he came to know about the sale transaction at the Baithak of Nasrullah through Nasrullah and immediately declared his intention to pre-empt the sale and notice Talb-e-Ishhad was sent on 9-8-2003.
9. In support of his stance, the plaintiff deposed as P.W.5 and reiterated his version P.W.6, Nasrullah appeared and deposed in support of plaintiff. Marginal witness of notice Talb-e-Ishhad appeared as P.W.7 and stated that on 9-8-2003, they came to Paharpur, plaintiff obtained Fard from patwari and then notice scribed which was thumb impressed ' by him. Shah Zaman, marginal witness, examined as P.W.8 who supported the narrations made by plaintiff and his witness P.W.9, petition writer, deposed that notices Talb-e-Ishhad were scribed by him and signed/thumb impressed by all concerned. No contradiction and infirmity pointed out in the evidence, as the same is consistent.
Despite lengthy and searching cross-examination, nothing digged out from them against the plaintiff in favour of defence, hence, sufficient compliance of section 13 of the NWFP Pre-emption Act, 1987 has been made.
10. So far as defence plea regarding prior knowledge of plaintiff in respect of sale is concerned, no plea with specific allegation of obtaining A Fard and entry in Roznamcha Waqiati in this regard, has been raised in written statement, except bald allegation to the extent that plaintiff had prior knowledge of sale. No evidence produced to this effect and as such plea stands not proved, though burden lies on defendants, as they assert the plea. P.W.1, Patwari Halqa deposed that Fard obtained by plaintiff and to this effect entry made in Roznamcha Waqiati. The perusal of Roznmacha reveals that it does not contain the details of actual receipt of Fard by plaintiff. Mere entry of the name of plaintiff qua the deficiency and loopholes and blanks left open in it, can safely suggest that it was manipulated. It has no presumption attached to and has not been prepared in due course of law and in violation ur Rule 34 of West Pakistan Land Revenue Rules, 1968. It has been prepared beyond the authority and procedure. The patwari, who deposed about the obtaining of Fard amounts to deposition against facts. The plaintiff has produced him as official of revenue department, but he deposed beyond his authority. He has to depose as custodian of record, as Patwari cannot depose as witness because he does not qualify to be witness but has to produce only record, without his comments as per the provisions of Qanun-e-Shahadat Order, 1984. Even an admission made by witness against fact would not be binding upon the party and has no conclusive effect. The defendants deriving benefit of alleged entry in. Roznamcha Waqiati had to prove the same through cogent evidence, which is lacking in the instant case. Register Ujrat in support of Roznamcha Waqiati has not been produced which is of vital importance, for the reason that at the time of issuing Fard, Fee obtained ought to have been entered in this register, which is not made, meaning thereby that no entry made in it and thus entry in Roznamcha was an afterthought, made by defendants in collusion with Patwari Halqa and as such declared as illegal and plaintiff could not be said to have obtained Fard at the relevant time nor prior knowledge of plaintiff regarding sale could be gained from the aforesaid discussion and thus findings are not open to exception in this regard.
11. The impugned mutation contains sale consideration of Rs.90,500. Plaintiff failed to prove otherwise. The defendant deposed specifically in this respect. There is no rebuttal to this and as such amount mentioned in mutation has been fixed and paid in good faith. The plaintiff (petitioner in C.R. No,515/2011) failed to point out any infirmity in the impugned judgment to the extent of issue No,6, rather his statement is silent about it, hence findings to this extent too are maintained.
12. For the reasons mentioned above, both the petitions being bereft of any merit are hereby dismissed. No order as to costs.