Mudassir Khalid Abbasi, J.: By means of this revision petition, petitioner has called in question the legality and validity of judgment and decree dated 22.09.2010 passed by learned Additional District Judge, Burewala whereby appeal filed by respondents was accepted and judgment and decree dated 08.09.2009 passed by learned Civil Judge 1st Class, Burewala was set aside and suit of the respondent stands dismissed, with costs.
2. Precisely, the facts of the case are that petitioner filed a suit for pre-emption contending therein that land measuring 299 kanals & 13 marlas was owned by father of petitioner namely Muhammad Abdullah. After the death of said Muhammad Abdullah said property was inherited by respondent to the extent of 149 Kanals & 16 Marlas and the remaining 149 Kanals & 17 Marlas was inherited by Muhammad Afzal. After the death of said Muhammad Afzal, his land was further inherited by M/s. Muhammad Ajmal Khan, Muhammad Akram Khan, Nisar Ahmad Khan, Zafar Iqbal Khan, Mazhar Iqbal Khan and Tahir Iqbal Khan who had sold the same to respondents through registered sale deed No.2038 dated 07.07.2006 as against the sale price of Rs.59,94,000/-. Petitioner came to know about the impugned sale on 18.10.2006 at 05:00 p.m. at his residence through Mazhar Mahmood son of Muhammad Zahoor, in the presence of Malik Muhammad Akbar. He pronounced to pre-empt the said sale as being Shafi Shareek and obtained copy of impugned sale deed on 19.10.2006 and came to know that the sale price was got incorporated therein as Rs.75,00,000/- so as to injure the right of pre-emption. Petitioner had sent notices of Talb-e-Ishhad to the respondents individually through registered post on 19.10.2006 wherein the respondents were asked to transfer property in dispute in favour of the petitioner on receiving the actual amount of consideration Rs.59,94,000/- but they refused. Respondents contested the suit vehemently by filing joint written statement while taking preliminary as well as objections on merits. Out of the divergent pleadings of the parties following issues were framed:- i) Whether the plaintiff has superior right of pre-emption against the defendant?OPP ii) Whether the plaintiff has fulfilled the requirement of T albs as required by law of pre-emption? OPP iii) Whether the disputed land was sold out in the hands of the defendant by the actual vendor in consideration of Rs.59 Lacs?OPP iv) If the above issue No.3 is not proved, then what was the actual market value of the disputed land at the time of sale? OPParties. v) Whether the plaintiff is stopped by his words and conduct to file the suit? OPD vi) Whether the plaintiff has actively participated in the transaction and as such has waived his right of pre emption?
OPD vii) Relief.
3. Parties led their evidence pro and contra to establish their respective claims. After recording of evidence, suit of the petitioner was decreed in the following terms:- "Suit is decreed in favour of the plaintiff and against the defendants with the condit ion that plaintiff shall deposit the remaining sale price of Rs.50,00,000/- (fifty lacs) as well as registration and transfer charges of suit land i.e. Rs.2,25,000/- totaling to Rs.52,25,000/- (rupees fifty two lacs and twenty five thousand only) within one month from today , failing which instant suit shall stand dismissed. There is no order as to costs."
4. Feeling aggrieved respondents preferred an appeal before learned Additional District Judge, Bureawla which was accepted with costs and impugned judgment and decree was set aside and the suit of the petitioner stands dismissed with costs. Hence, this civil revision.
5. It is contended by counsel for the petitioner that impugned judgment and decree dated 22.09.2010 passed by learned Additional District Judge, Bureawala is against the law and material available on the record. Further contends that learned lower appellate court has gone by the consideration that during the pendency of the proceedings, in partition proceedings conducted by the revenue department, the joint Khewat was partitioned into two separate Wandas; therefore, land never remained contiguous and the petitioner-suitor failed to prove the issue No.1, thus, lost his status as being Shafi Sahreek, has no value, as the proposition of law is settled that any change made in the land after performance of Talbs or institution of the suit or even if the sale stood reverted to the original owner, it shall not affect the right of the suitor. Further contends that lower appellate court has committed illegalities & irregularities in exercise of its jurisdiction as mainly gone by consideration that on 25.07.2006, mutation Exh.D-1 and mutation No.740(Ex-D-2) were attested in the same meeting and the same place. Further contends that notices of Talb-i-Ishhad were sent at the given address to the respondents/vendees.
Further contends that there is no evidence on the record that petitioner being Shafi Shareek, Shafi Khaleet & Shafi Jaar and beneficiary of the common easement right has no preferential right to pre-empt the sale transaction. Further contends that impugned judgment and decree is a result of misreading and non-reading of oral as well as documentary evidence available on the record, therefore, same is liable to be set aside.
6. On the other hand, learned counsel for respondents supported the impugned judgment and decree passed by learned lower appellate Court and submits that there is no misreading and non-reading of oral as well as documentary evidence available on the record. Further submits that there are three requirements to prove superior rights, one at the time of sale, other is at the time of filing of suit and finally at the time of decree. States that the present petitioner has failed to point out any illegality and irregularity committed in the impugned judgment and decree, therefore, civil revision is liable to be dismissed.
7. I have given conscious thought to the submissions made by learned counsel for the parties and perused the record.
8. Mainly , there are three features of judgment passed by the learned appellate court below , whereby the decree for possession through pre emption, in favour of present revision petitioner was set at naught.
FIRSTL Y, on account of subsequent partition of joint khata during the pendency of the suit. Before adverting to this aspect, at the first instance it is to be ascertained that as to whether the petitioner/plaintif f had established his superior right of pre-emption as Shafi Shareek. PW-3, in clear terms has deposed that he is co-owner of Khata Shareek in Khata No.20 whereas defendant appearing as DW-1 has not denied that the plaintif f is not co-sharer in the disputed khata. Moreover , Ex-P-8, copy of jamabandi and Ex-P-9 copy of Khasra Girdawari also supports the petitioner/plaintif f. Therefore, the right of petitioner/plaintif f as co-sharer is fully established.
9. Now the question left with this court is that as to whether , petitioner/plaintif f had lost status of shafi shareek, as the respondents/defendants had got joint khata partitioned on 15.04.2009, during the pendency of the suit. This persuaded the lower appellate court to overturn the judgment and decree. In this regard reference is made to Section-22 of the Punjab Pre-emption Act, 1991, reading as under:- "Improvement made in the status of the vendee-defendant after institution of the suit.-- Any improvement made in the status of a vendee-defendant after the institution of a suit for pre-emptions shall not affect the right of pre-emptor -plaintiff."
Its make it clear an unambiguous that any subsequent happening after the completion of sale would not effect any right of pre-emptor . Therefore, the observation made by the lower appellate court in this regard is of no consequence. Reliance is placed on 1982 SCMR 1024 titled as "Abdul Qayyum v. Muhammad Akram Khan" .
Moreover , doctrine of lis pendence is not only applicable to the case involving transfer of property during pendency of suit but also attract to the case where property otherwise dealt with, so as to adversely effect rights of any party to the suit.
SECONDL Y, while dealing with Talb-e-Muwathibat learned lower appellate court has based upon a contradiction regarding the knowledge of impugned sale. It is observed that according to the plaint and notice Ex-P-5 petitioner/plaintiff acquired knowledge through Mazhar Mahmood at his residential house whereas while appearing as PW-3 and PW-4 Muhammad Akbar and Mazhar Mahmood deposed that plaintiff was informed about the impugned sale by PW-4 in the plaintiff's baithak. This contradiction does not carry much weight because, obviously, baithak is part of residence and such contradiction could not be taken as a material one, bearing on the issue of making talbs. In a case 2014 SCMR 852 titled as "Dawood Shah v. Waris Shah" it has been held that pre- emptor in his deposition stated that he was sitting with his family members in courtyard of his house when he was informed about the alleged sale by his witness, whereas the said witness has stated that he informed the pre- emptor when he was sitting alone in his room. Such contradiction shall have no effect, particularly, where time, place and date has been given.
Lower appellate court while dealing with Talb-e- Ishhad has made another observation that notices were not sent within statutory period of two weeks, in fact the petitioner/plaintif f had acquired knowledge of the impugned sale on 25.07.2006 i.e. date of mutation of the impugned sale as another mutation No.740 (Ex-D 2) has been made basis to substantiate the same which according to the impugned judgment was got attested by plaintif f for mortgage of his property in favour of Agriculture Bank. Said mutation Ex-D-2 does not disclose that the plaintif f was himself present at the time of its execution. This court is not much impressed by the afore-stated basis made by the lower appellate court to reverse the judgment of trial court.
10. It was observed in the impugned judgment that notices were not sent to the present respondents at their actual addresses. Whereas the addresses given in the plaint by the respondents are the same, where the notices were sent and were received by the father of the present respondents/defendants.
What has been discussed above, this civil revision is allowed and impugned judgment and decree dated 22.09.2010 passed by learned Appellate Court is set-aside. Judgment and decree dated 08.09.2009 passed by the trial court is restored.