This revision petition is directed against judgment dated 19-1-1987 and decree dated 25-1-1987 passed by the learned 1st Additional District Judge, Larkana, dismissing the appeal filed by the petitioners against the judgment and decree dated 26-10-1985 and 11-11-1987 respectively passed by the learned 1st Senior Civil Judge, Larkana, decree the Suit No,21 of 1993 filed by respondent Mst.
Asima Begum against petitioners Mir Muhammad and Nek Muhammad and one Aijaz.
2. Facts, relevant for the purpose of this revision, are that the respondent, Mst. Asima filed the abovementioned suit for pre-emption against Mir Muhammad and Aijaz Ali, setting up her case that she is owner of the house C.S. No,1462, Ward B, Larkana, which she purchased from Settlement Department. The adjoining plot bearing C.S. No,1460, was purchased by petitioner No,1, Mir Muhammad through registered sale-deed dated 28-8-1982 from Aijaz Ali for Rs,7,000 and such mutation was affected in the city survey record on 2-11-1982. The respondent came to know about the said sale on 8-3-1983 whereupon she immediately asserted her intention to exercise the right of pre-emption and to purchase the plot. On the same day she took Rs,7,000 and went to the shop of petitioner No,1, accompanied by two witnesses, where, in the presence of said witnesses she re- affirmed her intention to purchase the said plot, expressly referring to her assertion having already been made. She asserted that she may be substituted by way of pre-emption, but Mir Muhammad, the petitioner No,1, refused, therefore, she filed the suit. Mir Muhammad, the petitioner No,1 filed his written statement wherein he pleaded that when Aijaz Ali, the defendant No,2 in the suit, offered the plot in question to him (Mir Muhammad) for purchase, the latter drew Aijaz Ali's attention to the fact that Mst. Asima owaer of the adjoining house has first right of purchase, but Aijaz Ali told him that he had offered her the plot but she refused to purchase it. Mir Muhammad further pleaded that afterwards he was in need of money, and he offered the plot to Mst. Asima for purchase on market price but she declined. He sold the plot to Nek Muhammad, the petitioner No,2 on market value for Rs,40,000 in the month of December, 1982 and received earnest money of Rs,5,000. The registered sale-deed was executed on 12-3-1983. He pointed out that Nek Muhammad was not made a party as the plaintiff/respondent intended to save court-fee. He denied the fact of first demand made by Mst. Asima followed by second demand in presence of witnesses re-affirming the earlier demand and placing her offer of purchase. It may be mentioned here that until filing of written statement Nek Muhammad was not party to the suit, but subsequently, he was impleaded as defendant No,3. He adopted the same written statement.
3. Learned trial Court framed the following issues:--
(1) Whether the defendant No,2 prior to sale of a plot to defendant No,1 offered for purchase to the plaintiff?
(2) Whether the plaintiff on coming to know of the purchase of plot by the defendant No,1 without any delay asserted her right of preemption over the said plot?
(3) Whether the plaintiff took two witnesses to the defendant as required by law and asserted her intention to re-purchase the plot expressing/referring to his earlier assertion already been made?
(4) Whether the plaintiff is entitled for the relief claimed?
(5) What should the decree be?
4. To prove their case the parties led evidence. Mst. Asima Begum examined herself and two witnesses Abdul Jabbar and Niaz Ahmed and produced the relevant documents. The petitioner No,1, Mir Muhammad examined himself and one witness Ali Hassan.
5. Learned Senior Civil Judge on assessment of the evidence on record held that Aijaz Ali had not offered the plot to Mst. Asima before its sale to Mir Muhammad and answered the issue No,1 in the negative, and as regards issues Nos.2 and 3, relating to 'Talab-i-Muwathibat' and 'Talab-i-Isshad', he gave his findings in the affirmative and ultimately held that Mst. Asima was entitled to relief on the basis of right of pre-emption. He decreed the suit. On appeal learned 1st Additional District Judge upheld the findings of the Trial Court and dismissed the appeal, hence this revision.
6. I have heard learned counsel for the parties and perused the evidence on record.
7. Mr. G.A. Shahani, learned counsel for the petitioners contended that both the legal demands, 'Talab-i-Muwathibat' and 'Talab-e-Ishhad' which are essentially to be made in a particular mode, were not made legally, as, according to him the first demand (Tgab-i-Muwathibat) was not made immediately, on coming to know about the sale, while the second demand was not made at all. He submitted that the evidence led by Mst. Asima was a blend of contradictions and omissions and the Courts below failed to appraise the same properly, and their judgments suffered from misreading and non-reading of the evidence. He relied on the authorities: Monajal Huq v. Shafiullah and another PLD 1964 Dacca 640; Snit. Sundri Bai v. Ghulam Hussain 1982 CLC 2441; Samundar Khan and 2 others v. Ali Zaman PLD 1984 Pesh. 12; Muhammad Ibrahim v. Taj Muhammad and another 1985 CLC 3000; Karim Bux and 2 others v. Syed Mushtaq Ali and 2 others 1984 CLC 33; Jadal v. Majeed and 2 others PLD 1978 Kara 732 and Sudhangshu Bimal Biswa s v. Muhammad Mustafa Chowdhry 1968 SCMR 213.
8. Mr. Abdul Hameed, learned counsel for the respondent contended that the evidence on record fully meets the true requirements of first demand and second demand in respect of right of pre- emption and both the Courts have made realistic appreciation of evidence while recording the findings. He submitted that minor and innocent contradictions in the depositions can simply be ignored. He relied on the authorities: Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 and K.M.C. v. Raheel Ghayas 1995 MLD 141.
9. Most of the case-law cited by learned counsel for the petitioner relates to the demands 'Talab- e-Muvvathibat' and Talab-e-Ishhad' and the mode of proof thereof. In PLD 1964 Dacca 640, it was held that the first demand viz. 'Talab-e-Muwathibat' shall be made immediately on the fact of sale becoming known to the pre-emptor, otherwise the right is lost by the delay in claiming it. In Smt.
Sundri Bai's case 1982 CLC 2441 there was delay of one and a half hours in making the first demand which was considered to be fatal to the claim of pre-emption. The peculiar circumstance in the case was that the pre-emptor resided on the first floor and the respondent on the ground floor of the same building. Regarding both demands, it was held in PLD 1984 Peshawar 12, that there should be clear proof of observance of 'Talab-e-Muwathibat' and 'Talab-e-Ishhad', and since in that case the pre-emptor had failed to prove the compliance thereof, the relief on the basis of right of pre- emption was declined. Similarly, it was observed in 1985 CLC 3000 that the burden lay on the pre- emptor/plaintiff to prove that both the demands were made strictly in accordance with law. The authority Karim Bux v. Syed Mushtaq Ali 1984 CLC 33 was on the same point. In PLD 1978 Karachi 732, this Court elucidated the essential requirements of Talab-e-Ishhad as follows: (i) that the Talab should be made against the seller, if the property sold is still in his possession, or against the purchaser, or upon the property sold, (ii) that the Talab should be made in the presence of not less than 2 witnesses, (iii) that while making Talab-eIshhad, reference is required to be made to the Talab-e-Mowathibat. Alid lastly, the case of Muhammad Mustafa, 1968 SCMR 213 was cited on the point that the plaintiff shall succeed on the strength of his own and not on weakness of respondent's evidence.
10. On the other hand the precedent 1995 MLD 141 was cited by learned counsel for respondent on the point that innocent admission made in the evidence may be condoned. The other authority 1997 SCMR 1139 relates to the scope of revision when the concurrent findings of two Courts below are assailed . The relevant observations made in this authority are as under:- "This process of examination of evidence for upsetting a concurrent finding of fact in exercise of powers under section 115, C.P.C. In our view, is neither permissible nor warranted by law. As earlier pointed out by us, interference with a finding of fact by the Court below by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Could only be justified if such finding is found to be suffering from misreading of evidence or non-consideration of important and material evidence or the finding is the result of perverse appreciation of evidence on record. A wrong or erroneous conclusion on a question of fact by the Courts below is not open to interference by the High Court in exercise of its jurisdiction under section 115, C.P.C. We may also mention here that the High Court while examining a concurrent findings of fact recorded by the Courts below in exercise of its jurisdiction under section 115, C.P.C. Has to attend to the reasons given by the Courts below in support of such findings and misreading, non-reading or perverse appreciation of evidence has to be discovered in the reasonings of the Courts below to justify interference in exercise of its revisional jurisdiction."
11. However, in the context, while dilating upon the scope of Revision under section 115, C.P.C. It would not be out of the place to mention that if a finding on a question of fact arrived at by the First Appellate Court is based on no evidence, or is the result of conjectures, or fallacious appraisal of evidence, it is not immune from scrutiny by the High Court in exercise of its power under section 115, C.P.C. As held by the Honourable Supreme Court in the case of Naziran Begum v. Khursheed Begum 1999 SCMR 1171.
12. Now, as regards evaluation of the evidence placed on record it may be mentioned at the outset that both the Courts below have elaborately discussed the evidence led by the parties and after discussing the relevant case-law, have recorded the findings in favour of the pre- emptor/respondent. Referring to the well-reasoned concurrent findings of the Trial Court and the First Appellate Court on the material issues, the learned counsel for the respondent submitted that the petitioners have hopelessly attempted to seek interference with the concurrent findings in revision proceedings, much against the principle laid down by the Honourable Supreme Court in Abdul Hakeem's case 1997 SCMR 1139 (supra). On the other hand the learned counsel for petitioners reiterated that it is an inescapable legal requirement to make the first demand immediately on coming to know about the sale of the property in question but the respondent Mst. Asima who knew about the sale sometime back did not make the first demand at that time. Keeping in view this argument the evidence was gone through.
13. Mst. Asima in her deposition has stated that one labourer came to the disputed plot and started the work at about 8.00 a.m. And when she enquired of him as to who purchased the plot in question, he replied that Mir Muhammad petitioner No,1 has purchased the plot. She then immediately on hearing the said fact from the labourer, declared her right of pre-emption over this plot and asserted the same in presence of the labourer and her son-in-law Abdul Jabbar who by that time arrived there, as he had to leave his children at her house. In cross-examination, she stated that it was 28th day of August, 1993 when the labourer informed her about the purchase of plot by Mir Muhammad, the petitioner No,1 from petitioner No,2 (Aijaz Ali). She clarified that the labourer arrived at 8-00 a.m. And her son-in-law also reached at that time. Abdul Jabbar fully supported her on this point. The witness Niaz Ahmed deposed that at about 8-00 or 8-15 a.m. He was going to his shop and passed by the house of Mst. Asima when he was called by her and informed that she has asserted the right of pre-emption over the plot. Thus, evidence led by the pre-emptor was sufficient to establish the fact that she asserted her right of pre-emption and made the first demand immediately on coming to know that the plot has been sold out.
14. Learned counsel for the petitioners, however, relied on the evidence of Mir Muhammad and Ali Hassan on the point that Ali Hassan was engaged by Mir Muhammad to carry work on the disputed plot and while he was digging the foundation for compound wall, Mst. Asima and 2/3 persons came over there and at that time Mst. Asima was informed by Aijaz Ali that the disputed plot had been sold to Mir Muhammad after she refused to purchase the same. Mir Muhammad stated in his deposition that Mst. Asima remained silent and did not make any demand. D.W. Ali Hassan gave a similar version.
15. The learned trial Court thoroughly examined these pieces of evidence and was satisfied that the version given by Mst. Asima was supported by the natural witnesses and that in rebuttal Mir Muhammad had brought a witness whose evidence was not reliable. The 1st Appellate Court also made discreet examination of the evidence and arrived at the conclusion that despite the lengthy cross-examination nothing could be brought on record to rebut evidence led by respondent Mst.
Asima. The 1st Appellate Court observed that the main person to rebut effectively the claim of Mst.
Asima was vendor Aijaz Ali but he was not examined.
16. Both the Courts were of the view that despite the fact that Abdul Jabbar was related to Mst.
Asima, there is no justification to discard his testimony and so also Niaz Ahmed was a natural witness, as he was going to open his shop when he passed by the disputed plot.
17. Learned counsel for the petitioner referred to the discrepancy between the averment made at para. No,4 of the plaint and the version given by Mst. Asima in her cross-examination regarding the date on which she came to know for the first time about the sale of plot in question to Mir Muhammad. It is stated in the plaint that Mst. Asima respondent/plaintiff came to know about the sale on 8-3-1983 but in her deposition, at the trial, she replied in cross-examination that on 28th August, 1983 the labourer informed her that the plot in question was purchased by Mir Muhammad from Aijaz Ali. In view of this discrepancy learned counsel contended that since both the Courts below have not taken note of this fact, non-reading of evidence has occurred. Learned counsel for respondent rebutted this contention very aptly by submitting that the suit was filed on 9-4-1983, how could the plaintiff state in her deposition that she came to know about the sale in August, 1983 that is to say after five months of filing of the suit. In this context he relied on 1995 MLD 141 and submitted that innocent admission made erroneously by the parties may be condoned. Even otherwise, seemingly it appears to be merely a slip of tongue, as it is not expected that a suit would be filed on a cause of action which accrues after five months of institution thereof. The contention is, therefore, repelled.
18. Secondly, the learned counsel for petitioners submitted that Abdul Jabbar has deposed that Mst. Asima told him that she had made demand before labourer while the evidence of Mst. Asima indicates that she had made demand after some time i.e on arrival of Abdul Jabbar. Learned counsel failed to note that Mst. Asima herself deposed that she made demand at once. Abdul Jabbar had also reached at the same time and all these facts were duly considered by the Courts below, therefore, it would be too technical to take- a different view in this regard. On the whole concurrent view taken by the Courts below that the first demand was made duly within time is not open to interference in view of the evidence placed on record.
19. As regards the second demand Mst. Asima deposed that on her request, Niaz Ahmed and Abdul Jabbar accompanied her and they reached the shop of Mir Muhammad at about 8-00 a.m. Where Mir Muhammad was present and in presence of these witnesses she asserted her right of pre- emption over the plot in question. She also declared there that prior to this she had asserted the right of pre-emption and again in presence of witnesses she was repeating the same assertions.
Abdul Jabbar and Niaz Ahmed both supported Mst. Asima on this point.
20. Learned counsel for the petitioners argued that Mst. Asima has stated that she took 10/15 minutes in reaching the shop while Abdul Jabbar has stated that they took 5 minutes to reach the shop, therefore, on account of such contradiction, they may not be believed. This is not the least a convincing argument as it would be beyond the scope of revisional powers of this Court to have microscopic view of the evidence which has already been minutely examined and assessed by the trial Court and the First Appellate Court. The lower Court has examined all aspects of the evidence and reached the conclusion that the 'Talab-e-Ishhad' was made strictly in accordance with law. I find no reason to upset the unanimous view of the Courts below, simply on account of technical assessm ent of evidence. In the manner, the essential requirements of making both demands.
'Talab-e-Muwathibat' and Talab-e-Ishhad' as propounded in the case law discussed earlier, are fully satisfied.
21. Net out-come of the foregoing discussion is that the trial Court and the 1st Appellate Court have correctly appraised the evidence on record and their findings are neither erroneous nor perverse.
There was neither fallacious appraisal of evidence nor any inference was drawn by them on conjectures. Consequently, their well-founded findings would not call for interference. The petitioners have failed to establish that the Appellate Court exercised jurisdiction illegally or with material irregularity. The revision petition is without merits and is, hence, dismissed, leaving the parties to bear their own costs.