' This revision petition has been preferred against the judgment and decree dated 30.04.2009 passed by the appellate Court Peshawar, whereby the appeal filed by petitioners against the judgment and decree dated 30.6.2008, passed by learned Civil Judge-III, Swabi, was dismissed.
' Arguments heard record perused.
2. A perusal of record reveals that the respondents filed a suit for possession through pre-emption against Zareen now dead vendee in respect of property in dispute which was contested by defendant and after recording procontra evidence, the suit was decreed by the trial Court vide impugned judgment and decree, it is averred in Para 2 of the plaint that the plaintiff acquired knowledge of sale transaction on 19.1.1999 at 08.30 AM in the morning on the disputed property in presence of Wazif Ullah, Haidar Zaman through Zareen defendant, and the plaintiff there and then announced his intention to preempt the sale. The plaintiff appeared in support of averment made in the plaint, however failed to mention date of making 'Talb-e-Muwathibat in his statement which amounts to the failure of plaintiff to prove the incident of 'Talbe-e-Muwathibat' in terms of Section 13 of KPK Preemption Act, 1987. None of the Courts below adverted to such material and crucial point in the case which could have decided the fate of the suit amounts to decision of the matter in complete oblivion of record of the case. It was submitted on behalf of respondents that finding on question of fact and law how erroneous the same may be, recorded by Court of jurisdiction cannot interfered by this Court in exercise of revisional jurisdiction u/S. 115, CPC. The plea taken is misplaced, for the reason that this Court cannot mechanically affirm the findings of two Courts on the ground that those are concurrent. This Court has ample power to set at naught the concurrent findings if the Courts have misread the record of the case and findings are perverse in nature. The non-mentioning of date of 'Talb-Muwathibat' in the statement of plaintiff could not be termed as a slip of tongue or non material inconsistency. The fate of the cases hinges upon the evidence of the plaintiff. The pleadings of the parties are of no avail if not substantiated by producing cogent and confidence inspiring evidence. Learned counsel for respondents ably argued the case however the lacuna left by plaintiff was of such a nature which could not be ignored as the burden squarely lies upon the plaintiff to prove the case with the aid of evidence. Though the details of date, time and place of ' Talb-e-Muwathibat' has been given in the plaint but mere mentioning in plaint not corroborated in the evidence could not be based for grant of decree in favour of the plaintiff. The plea that the statement of plaintiff and witnesses were recorded after lapse of considerable time has force but in the instant case the plaintiff has given all other details regarding place, time and date of 'Talb-e-lshhad' and even minor detail of the incident of 'Talb-e-Muwathibat' but only date has not been mentioned of 'Talb-e-Muwathibat' and as such this plea being illiterate villager and omission has been made on his part, which is condonable, is misplaced, as there is no provision in any enactment to treat the case of a villager at variance from citizen hails from urban area.
Moreover the plea of lapse of time could be considered for the purpose and discrepancy in the statements of witnesses whereas in the instant case it is the plaintiff who has failed to substantiate the averments made by him the plaint, and remained unable to discharge the burden in terms of Article 117 of Qanoon-e-Shahadat Order, 1984 as no provision of the Pre-emption Act would come to the rescue of the plaintiff in such eventuality.
3. After taking a careful scrutiny of the record, I am of the view that the Courts below have committed illegality and have misread the evidence available on file and finding arrived are entirely inconsistent with law and facts of the case.
4. For the aforesaid reasons, I allow this petition, set aside the impugned judgments of Courts below and dismiss the suit of the plaintiffs/respondents.