Rasaal Hasan Syed, J. Judgments and decree dated 29.10.2011 and 28.4.2015 of the courts below in a preemption suit have been challenged in this revision petition.
2. Respondent Muhammad Akram brought a suit to preempt sale of land measuring 10 kanals vide mutation No. 501 dated 19.3.2007. It was claimed that respondent being co-sharer (shafi khaleet and shafi jar) had superior right of preemption and that talb-i-muwathibat was spontaneously made on acquisition of information of sale followed by issuance and receipt of talb-i-ishhad and that the respondent was entitled to a decree for possession through preemption. The suit was resisted by petitioner who filed a contesting written statement raising legal and factual objections to its maintainability and denying the making of requisite talbs. Issues were framed and evidence pro and contra was recorded whereafter the learned Civil Judge decreed the suit vide judgment dated 29.10.2011. Appeal of petitioner was dismissed by the learned Addl. District Judge Jhelum vide judgment dated 28.4.2015. Against these judgments the instant revision petition has been filed.
3. Heard.
4. Perusal of documents annexed with this revision petition reveals that the case of respondent was that the suit land was purchased by petitioner through mutation No. 501 dated 19.3.2007 for a consideration of Rs. 1,50,000/- of which respondent got information through one Muhammad Ejaz who came to his house on 29.5.2007 at 10.00 a.m. Muhammad Razzaq and Khadim Hussain were sitting with him at the time. Muhammad Ejaz disclosed about sale of suit land by Fazal Karim and Muhammad Saleem in favour of the petitioner and on this respondent announced his intention to preempt and made talb-imuwathibat which was followed by notice of talbi-ishhad dated 04.6.2007 signed by him and his witnesses. Contrariwise petitioner averred that respondent knew of the sale already who had failed to make any talbs and that the version in the plaint of getting information through Muhammad Ejaz had no factual basis. Stance taken by the petitioner was that the requisite talbs were not performed and, as such, suit could not be decreed.
5. With a view to consider this question, when the pleadings and the evidence of respondent are examined, it is observed that the case set up in the plaint by the respondent was that on 29.5.2007 at 10.00 a.m. he was sitting along with Muhammad Razzaq and Khadim Hussain in his house when Muhammad Ejaz came and informed that the suit land had been sold by Fazal Karim, etc. in favour of the petitioner on which the respondent claimed immediate announcement of his right of preemption and in this way it was asserted that talbi-muwathibat was performed in the same majlis i.e. in the presence of two witnesses referred herein above. Muhammad Ejaz the alleged informer appeared as PW2 and deposed that he had gone to patwari halqa who told him that the land had been sold in his village. He then went to the house of respondent and informed him about the sale at 10.00 a.m. on 29.5.2007 and that on receiving this information the respondent immediately announced his right of preemption which was followed by notice of talb-i-ishhad.
Muhammad Razzaq was not produced in evidence by the respondent while he himself appeared as PW1 and produced Khadim Hussain as PW3. Both of them recorded their statements to the effect that Muhammad Ejaz had informed about the sale of suit land in favour of petitioner and that Muhammad Ejaz was told about the sale by patwari halqa. Bare perusal of the statement of PW2 Muhammad Ejaz alleged informer makes it evident that the witness was making a hearsay statement. He did not claim to be present at the time of sale nor it was his plea that he was witness to the sale itself or that he was present at the time of negotiations of the sale or at the time of attestation of mutation nor was it his claim that he had seen the mutation document. So much so in his statement he did not disclose the time, date and place of sale and whatever he claimed to have stated was on the alleged disclosure of the sale to him by patwari. In these circumstances the statement of patwari was most relevant as he shall be deemed in law and actually to be the informer. Only patwari halqa who according to PW2 had divulged the information of sale to him, could prove by appearing in the court as a witness, if PW2 had ever visited him and whether the information of sale was passed to PW2 by him. In Farid Ullah Khan v. Irfan Ullah Khan (2022 SCMR 1231) while considering the question of proof of talb-i-muwathibat and the requirement of law to produce the informer in the case it was observed that: "...In view of the provisions of Article 71 of Qanoon-e-Shahadat Order 1984, which mandates that oral evidence must be direct, that is to say, if it refers to a fact, which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it; if it refers to a fact, which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; and if it refers to an opinion or to the grounds on which that opinion is held, it must be, subject to the proviso the evidence of the person who holds that opinion on those grounds.
8.4. The fact of a sale of land is a fact that can be seen, such as, by observing or taking part in the sale- transaction or by seeing the sale deed or sale mutation. The person who conveys the information of the fact of sale must be a person who has seen the fact of sale and it is he who can then pass on the said fact to another person(s). Thus, the chain of the source of information, as to the fact of sale, from the very first person, who has the direct knowledge thereof and passes on the same to the person who lastly informs the pre- emptor, must be complete. Only the complete chain of the source of information of the sale can establish the essential elements of Talb-eMuwathabit , which are: (i) the time, date and place when the preemptor obtained the first information of the sale and, (ii)- the immediate declaration of his intention by the preemptor to exercise his right of preemption, then and there, on obtaining such information. In the present case, such chain of the source of passing on the information, as to the fact of sale of the suit land has not been proved and the entire case as to making of Talb-eMuwathibat is built on the hear-say evidence of the respondent's brother, Farman ullah (PW 4). This omission raises doubts on the veracity and truthfulness of the witnesses produced by preemptor."
Reference can also be made to the case of Muhammad Riaz v. Muhammad Akram and others (2024 SCMR 692) wherein the view expressed supra was affirmed.
6. The courts below in this case failed to appreciate that the statement of PW2 was just hearsay which was inadmissible under Article 71 of Qanun-e-Shahadat Order, 1984 and that the production of patwari halqa was necessary to complete the chain of obtaining and passing of the first information of sale to respondent and that talb-i-muwathibat could not be claimed to have been proved on the basis of hearsay. In the instant case the production of patwari halqa was all the more necessary as PW2 did not state his purpose of visit to patwari halqa, whether he was deputed by someone to get information of sale or he visited the patwari halqa of his own accord and as to why the patwari halqa chose him specifically for the purpose of divulging the information of sale; whether the witness was himself interested in the purchase of land or he was acting on behalf of someone else particularly when the witness himself did not produce any material on record to prove his visit to patwari halqa. It was, therefore, necessary for the preemptor to produce the patwari as a witness to complete the chain of source of information which having not been done, the adverse inference under Article 129(g) of Qanun-e-Shahahdat Order, 1984 could be drawn to assume that the pawari halqa was withheld as he was not willing to support the respondent/preemptor or PW2 in this context. Even otherwise the contradictions in the statement of witnesses inter se and also inter se the plaintiff and the witnesses as well as in the statement of PW1 himself in regard to talb-i-muwathibat as well as talb-i-ishhad were overlooked which had material bearing on creditworthiness and probative value of the evidence adduced. It ineluctably follows from due consideration of facts and circumstances as noted supra that respondent failed to establish his claim qua talb-i-muwathibat predicated, as it was, on information wanting in necessary credibility and admissibility and findings based thereupon cannot sustain. As regards talb-i-ishhad the postman who had delivered the notice allegedly was not produced instead PW5 was produced who admitted in cross-examination that the notice was not delivered by him but by someone else who was posted in the area prior to him. Similarly, the requirements of talb-i-ishhad that the preemptor shall declare that he had made talb-i-muwathibt and that he undertakes to enforce it, were not fulfilled as it was neither claimed in the plaint nor in the evidence that such a declaration was made by the respondent while the evidence is to the extent of preparation of notice by a learned counsel which was signed by respondent and his witnesses. So much the notice was not produced in evidence of PW1 nor was the scribe of the notice produced rather notice was tendered in the statement of learned counsel which was inadmissible in law. Be that as it may, the respondent having failed to prove talb-i-muwathibat rest of the claim in respect of talb-i-ishhad would fall to the ground.
7. As regards the argument that concurrent findings of fact could not be interfered with in revisional jurisdiction, it is observed that findings that the courts below recorded their decisions on, are based on hearsay evidence inadmissible in law. In Sultan Muhammad and another v.
Muhammad Qasim and others (2010 SCMR 1630) it was observed to the effect that concurrent findings of courts below on the question of fact if not based on misreading or nonreading of evidence, and not suffering from any illegality or material irregularity bearing on merits of the case, are not open to question at revisional stage but where position on the record is to the contrary the courts are not denuded of the power to interfere with such findings. In the instant case the courts below banked on evidence that was inadmissible and lacking in credence which was misread and misinterpreted which in result are legally untenable, as such, the objection as to the maintainability of revision petition is without legal force and is rejected
8. For the reasons recorded supra the instant revision petition is allowed, impugned judgment dated 28.4.2015 passed by learned Addl. District Judge and judgment and decree dated 29.10.2011 passed by learned Civil Judge, are set aside and as a consequence thereof the suit filed by respondent is dism isse d.