CH. MUHAMMAD MASOOD JAHANGIR, J.---The brief facts of the case are that property measuring 09-Kanals 10-Marlas was owned by Muhammad Inayat, which was sold out to the petitioner/ defendant (hereinafter to be referred as 'Vendee') through mutation No. 3926 dated" 07.10.2004.
The respondent/plaintiff (hereinafter to be referred as 'Pre-emptor') pre-empted the said sale by filing a suit for possession through pre-emption while alleging his superior right as well as due performance of talbs. The said suit was contested by the vendee and after conducting full-fledged trial, the same was decreed by the learned trial court vide judgment and decree dated 18.03.2010.
The appeal filed by the vendee was partially accepted vide impugned judgment and decree dated 22.05.2010 delivered by the learned Additional District Judge, Mandi Bahauddin. Being aggrieved, the vendee has filed this civil revision.
2.It is mainly contended by the learned counsel for the vendee that imptigned judgments and decrees passed by both the courts below are result of misreading and non-reading of evidence; that both the courts below failed to consider the aspect that the vendor and the preemptor were real brothers and the disputed sale was in the knowledge of the preemptor from the day of its inception whereas the fulfilment of alleged first demand after 21-days was fictitious and concocted; that the pre-emptor was required to produce the concerned post-man, who allegedly served the notice upon the vendee, but he was not produced rather another postman (PW/5) was brought into the witness-box by the pre-emptor, who admittedly neither served the notice upon the vendee nor he was present at the relevant time when the notice was allegedly delivered to the vendee. He has lastly prayed for the acceptance of the instant civil revision, setting aside of the impugned judgments and decrees passed by both the courts below and that the suit instituted by the pre-emptor be dismissed.
3.Conversely, learned counsel for the pre-emptor has refuted the arguments advanced by the learned counsel for the vendee and while supporting the impugned judgments and decrees passed by both the courts below has submitted that concurrent findings recorded by both the courts below cannot be interfered with by this Court while exercising its jurisdiction under section 115 of the Code of Civil Procedure, 1908. He has relied upon the judgments reported as Abdul Qayum through Legal Heirs v. Mushk-e-Alain and another (2001 SCM R 798) and Muhammad Tariq and 4 others v. Asif Javed and another (2009 SCM R 240) and prayed for the dismissal of the instant civil revision.
4. Arguments heard and perused the record thoroughly.
5.The main thrust of arguments of learned counsel for the vendee is that preemptor failed to discharge the onus of issue No.2 qua the performance of requisite demands and that pre-emptor had also waived his right of pre-emption and could not discharge onus of issue No.5, which was shifted upon him. These are the vital and pivotal issues, which for brevity sake, are reproduced hereunder:-- 2) Whether the plaintiff has fulfilled the requirements of Talbs in accordance with law? OPP 5) Whether the plaintiff has waived his right of pre-emption? OPD
6. The study of plaint reveals that the pre-emptor without disclosing that vendor was his real brother pre-empted the sale effected by him by filing the suit before the learned trial court.
However, while appearing in the witness-box as PW/1, the pre-emptor candidly conceded that the vendor Muhammad Inayat was his real brother. No doubt, he further added that his relationship with the vendor were not cordial since one year, but the said statement was made by the pre- emptor on 26.01.2009 and inference can be drawn that at the time of attestation of sale mutation dated 07.10.2004, the relationship between the said two brothers were not strained. Even if it is presumed that his relationship with the vendor brother were not cordial at the time of attestation of mutation, then this fact should have been pleaded by the pre-emptor in his plaint, but neither it was mentioned therein nor except statement of pre-emptor no other supporting evidence is available on file. Even to prove his stance that his relations were not cordial with his brother/vendor at the time of attestation of disputed mutation, the pre-emptor was required to produce his brother, but despite his availability he was withheld by him and adverse inference has to be drawn against him under Article 129 illustration (g) of Qanun-e-Shahadat Order, 1984. The argument of Mr. Ghulam Fareed Sanotra, learned counsel for pre-emptor that as the relationship of the pre-emptor with the brother/vendor were strained, so if he was produced or summoned by the pre-emptor, then he might have deposed against the stance of the pre-emptor is without force. The pre- emptor in case of any adverse statement made by the vendor could have made a request for declaring him hostile witness and by subjecting him to cross-examination the veracity of his statement could be elucidated on the record. The story launched by the pre-emptor about getting knowledge of the disputed sale and then fulfillment of first demand after an elapse of 20-21 days appears to be fictitious and concocted. A prudent man cannot believe that factum of sale of the pre-empted property by real brother of the preemptor situated in the same khewat and khasra numbers wherein the property of the pre-emptor also located and possession of the same was also handed over to the vendee forthwith, had remained secret from the knowledge of the pre- emptor for a long period. It is not the case of the pre-emptor that he was not residing in the same village where the pre-empted property was situated. The pre-emptor being brother of the vendor can be presumed to have complete knowledge of sale transaction from its inception, but there is no evidence that he had ever asked his brother to sell the land to him, which shows that there was a complete understanding between the preemptor as well as vendor, from whom the disputed property was purchased by the vendee. The change of possession of immovable property has always been considered a notice to all the inhabitants of the locality about effecting of the transaction. The pre-emptor failed to rebut or deny any such notice and in the absence of cross examination on DWs it can hardly be accepted that the pre-emptor had got knowledge of sale of the disputed property falling in the same khewat and khasra numbers by his brother wherein the property owned by him is also located with the delay of 20/21 days. So the argument of the learned counsel for the vendee that the disputed sale was already in the knowledge of the pre-emptor since its inception and stance qua the performance of first demand after an elapse of 20/21 days is concocted and self-grafted has force and convincible. In this regard, reliance can be placed on the judgments reported as Muhammad Bakhsh v. Nisar Ahmad (1985 CLC 1974), Mst. Hameedan Begum and 11 others v. Muhammad Jafar (2006 M LD 1034), Basharat Ali Khan v. Muhammad Akbar (2011 CLC 969) and Naseer Ahmad v. Arshad Ahmad (PLD 1984 SC 366). It can safely be concluded that the sale was in the knowledge of the pre-emptor from the day first when it was effected and the alleged fulfillment of demand by him on 21.10.2004 is not genuine rather fictitious and concocted, but both the courts below without capturing the said fact erred in law while holding that pre-emptor succeeded to prove performance of requisite Talb-iMuwathibat.
7. The other back-drop of the case is that the vendee by filing his written statement as well as while appearing as DW/1 categorically deposed that pre-emptor had not only failed to perform the requisite talbs rather no notice Talb-i-Ishhad was ever served upon him. In such scenario, the pre-emptor was required to prove the service of notice Talb-i-Ishhad through registered post on the vendee by production of concerned postman, who was alleged to have actually delivered the same to the vendee. But in the case in hand admittedly Muhammad Anwar (PW/5) was not the original postman, who actually delivered the registered post containing notice Talb-i-Ishhad to the vendee and from the study of his statement, it appears that he was posted as postman of the concerned village later on whereas the alleged delivery of notice was already effected upon vendee. The perusal of copy of receipt of Ex.P/3 available at pages 44 and 45 also reveals that no report was endorsed on it by the concerned postman to the effect that it was delivered to the vendee. The postman (PW/5) got recorded his statement without producing the delivery Register wherein endorsement is made by the postman qua the effect that registered post was delivered or it was refused to have been received by the addressee. In the absence of such vital register as well as report over AD (Ex.P/3), the statement of PW/5 has no evidentiary value to the effect that registered post containing notice Talb-iIshhad was actually served upon the vendee. This aspect has also not been thrashed by the two courts below while rendering their findings on issue No.2.
Thus, the findings of two courts below on the said issue are not based on appreciation of material available on record rather the said issue was answered while misinterpreting the said material and the findings are not sustainable in the eye of law, which are reversed while answering the same in negative against the preemptor.
8. The vendee being DW1 and his supporting witness Muhammad Hadayat (DW2) specifically stated in their examinations-in-chief that pre-emptor was firstly offered to purchase the land from his real brother -and after his refusal, it was purchased by the vendee, which portion in statements-in-chief of said DWs has not been specifically cross-examined by the learned counsel for the pre-emptor, it shall be deemed to have been admitted. Reliance can be placed upon the judgments reported as Waqar Ambalvi v. Faqir Ali and others (1969 SCMR 189), Chief Engineer, IrrigationDepartment,N. W. F. P., Peshawar and 2 others v. Mazhar Hussain and 2 others (PLD 2004 SC 682), Hafiz Tassaduq Hussain v. Lal Khatoon and others (PLD 2011 SC 296). The pre-emptor despite having knowledge about the transaction had never asked the vendor, who, according to pre-emptor, was his real brother, to sell the land to him nor did he notify the vendee about his intention to claim his right of pre-emption. There is no cavil with the proposition that right of substitution can be waived either by express refusal to purchase the property or by conduct on the part of the pre-emptor, showing lackadaisical attitude in the purchase of the property. Reliance can be placed upon the judgments reported as Abdul Hameed and others v. Muzamil Haq and others (2005 SCM R 895) and Hassan Din and others v. Manzoor Hussain and others (2010 SCM R 810). In former case, it is held as under:-- "16. The afore-referred circumstances indicate that the respondent/plaintiff all along knew about the sale transaction, that he never aced the vendor, his father to sell the land to him, that there was a complete understanding between the two so much so that even the sale price was deposited in the account of the respondent/plaintiff, that the suit was filed with connivance of the vendor and that it was not merely a case of implied waiver but also collusion."
On the touchstone of above discussion, the finding of the courts below on issue No.5 are also not sustainable and while reversing the same, this issue is answered in affirmative.
9. At the fag end, the argument of learned counsel for the pre-emptor that concurrent findings of fact recorded by both the courts below cannot be interfered with in revisional jurisdiction of this Court, is also misconceived. Although, the scope of interference with concurrent findings of fact is limited, but such findings can be interfered with by this Court under section 115 of Civil Procedure Code, 1908, if courts below appeared to have either misread evidence on record or while assessing evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issue involved. In arriving at such view this court is fortified by the dictum laid down in the judgment reported as Abdul Hakeem v. Habibullah and 11 others (1997 SCM R 1139) and the relevant portion thereof is reproduced as under:-- "6. Before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C. P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P. C. if the Courts below have either misread the evidence on record or while assessing or evaluating; the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C. if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts below on the basis of the evidence on record."
This question has also been dealt with by the august Supreme Court of Pakistan in the judgment report as Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 SC 255) while holding that it is obvious and clear that no Court in the country has the jurisdiction to decide about the rights of the parties wrongly and in violation of law and the Revisional Court has no exception to this rule. It has also been held therein that Court could not pass an order of its liking, solely on the basis of its vision and wisdom, rather it was bound and obligated to render decisions in accordance with law alone. So, this court can decide that in which cases the interference is warranted. The impugned judgments and decrees are found to be illegal, unlawful and perverse being the result of misreading and non-reading of the evidence on the record and surely suffered from excess of jurisdiction exercised by the learned courts below, which is exceptionable by this court in the exercise of revisional jurisdiction. The judgments and decrees passed by both the courts below are not only tainted with misreading and non-reading of evidence, but the same were also passed in complete derogation of law settled by the apex Court as referred supra, which has rendered the same illegal, unlawful, ultra vires and without jurisdiction. The case law cited by the learned counsel for the vendee is not applicable to the facts and circumstances of the instant case as the same runs on different footing.
10. Consequently, the instant civil revision is accepted, impugned judgments and decrees delivered by both the courts below are hereby set-aside and the suit for possession through pre-emption filed by the pre-emptor is hereby dismissed with costs throughout.