This civil revision petition is directed against the judgment and decree dated 25-1-2000 whereby the appeal filed by the respondents-plaintiffs against the judgment and decree dated 14-9-1999 of the Civil Judge, Wazirabad dismissing the suit for possession through pre-emption, was accepted by the learned Additional District Judge, Wazirabad.
2. Brief a of the case are that one Sardar son of Nadir Khan was owner of land measuring 4 Kanals which was 4/111 share of total land measuring Ill Kanals in Khewat No,167. Khatuni Nos,363 to 376. situated in Mauza Khausar. Tehsil Wazirabad. District Gujranwala. He transferred the above said land in favour of Abdul Jabbar son of Naseerud-Din, petitioner, vide Mutation No,484 dated 30-2- 1997. The respondent-plaintiff filed a suit for possession through preemption in the Court of Civjl Judge, Wazirabad on 6-2-1998 on the ground of superior right of pre-emption being co-sharer in suit land. It was further alleged in the suit that in fact Rs,58,000 were paid as consideration amount but to defeat the superior right of pre-emption of the plaintiff Rupees one lac was fictitiously entered as price of the land in the mutation.
3. The suit was resisted by the petitioners by filing a written statement. It was asserted that the respondent-plaintiff had no cause of action and that the respondentplaintiff has knowledge of the sale, therefore, the suit in not maintainable.
4. From the divergent pleadings of the parties. following issues were framed by the trial Court.
(1) Whether the plaintiff has got superior right of pre-emption qua the vendees/defendants? OPP
(2) Whether the plaintiff has fulfilled the requirements of the Talbs in accordance with law? OPP
(3) Whether the ostensible sale price of Rs,1,00,000 was fixed in good faith and actually paid by the defendants? OPD
(4) If Issue No,3 is not proved, then what was the market value of the suit land at the time of sale?
OPPs
(5) Whether the plaintiff has no cause of action? OPD
(6) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(7) Whether the plaintiff has waived his right of pre-emption? OPD
(8) Relief.
5. The learned Civil Judge decided Issues Nos, 1. 3 to 7 in favour of the respondent-plaintiff.
However, by recording a finding on Issue No,2 against the plaintiff-respondent held that the plaintiff has not fulfilled the requirement of Talbs in accordance with law, therefore, he proceeded to dismiss the suit vide judgment and decree 14-9-1999. Respondent-plaintiff Feroze Din filed an appeal thereagainst and the learned Additional District Judge reversed the finding on Issue No,2 and held that minor discrepancies in the statements of the witnesses could have not been a ground to non-suit the plaintiff-respondent, therefore, he proceeded to accept the appeal and to decree the suit for possession through pre-emption filed by the respondent-plaintiff.
6. The learned counsel for the petitioners contends that a well-reasoned judgment of the learned Civil Judge through which he recorded a finding on Issue No,2 Against the respondent-plaintiff by appreciating the evidence, has been illegaly up set by the learned Additional District Judge by misreading the evidence and misinterpreting the section 13 of the Punjab Pre-emption Act, 1991. it is contended that the judgment of the learned Additional District Judge passed in appeal is the result of complete misreading of evidence on the record. He has referred to the statement of P.W.1 Feroze Din and P. W.3 Muhammad Latif to show that it was in contradiction with each other, which was rightly read by learned Civil Judge whereas the learned Additional District Judge has ignored the contradiction by observing that it was a minor contradiction.
7. Conversely, the learned counsel for the respondents has argued that the judgment of the Civil Judge was result of misreading of evidence which has been corrected by the learned Additional District Judge atter appreciating the evidence on record.
8. Since the judgment and decree of the learned Civil Judge and of the learned Additional District Judge in this case are controversial , on the basis of facts and evidence on the' record, therefore. 1 myself have gone through the evidence produced by the parties in the case. In order to prove Issue No,2 Feroz Din, respondent-plaintiff has appeared as P.W.1 and deposed that he came to know about the sale on 30-12-1997 at 5.00 p.m...when he made immediate demand in presence of Muhammad A nsar , P. W .2 and Muhammad Latif P.W.3. The plaintiff also produced notices of Talb- e-Ishhad as Exh.P.1 and Exh.P.2 postal receipts Exh.P.5 and Exh.P.6 Muhammad Latif , P.W.3 was also examined by the plaintiff to prove Talb-eMuwathibat, P.W.3 has stated that the defendant told the plaintiff about the impugned sale after 5/6 days of attestation of the mutation. The notice Exh.P.2 to establish Talb-e-Ishhad has been perused by me, wherein' it has been categorically stated that the plaintiff came to know at the Dera of Haji Muhammad Malik Cheema. situated Mau'za Khausar, at 5 p.m. on 30-12-1997 in presence of Muhammad Ansar son of Haji Muhammad Malik and Muhammad Latif son of Ghulam Muhammad Basra, residents of the village, that the land measuing 4 Kanals has been sold by Sardar son of Nadir Khan. 'From the perusal of the statement of P.W.1 Feroze Din and notice Exh.P.1. it is manifestly clear that Taib-e-Muwathibat was asserted by the plaintiff-respondent by saying that he came to know on 30-12-1997. but this plea was categorically contradicted by Muhammad Latif P.W.2 who has stated that defendants told the plaintiff about the impugned sale after 5/6 days attestation of the impugned mutation. The learned Civil Judge has rightly observed that:- "Such a crystal clear contradiction between the statements made by P.W.1 and P.W.3 is sufficient to hold that the plaintiff did not perform Talb-i-Muwathibat in accordance with law. That being so, notices Talb-i-lshhad Exh.P.1 and Exh.P.2 carries no weight.
The learned Additional District Judge was not legally correct in the circumstances of the case to observe that the plaintiff has asserted in the plaint about the date of sale and which fact was corroborated by P.W.3 in his examination-in-chief. The learned Additional District Judge further fell in error while observing that the contradiction noted by the trial Court in the statement of P.W.3 regarding making of Talh-eMuwathihat is not material or fatal in the circumstances. Under section 13 of the Punjab Pre-emption Act. 1991. the burden heavily lies on the plaintiff to prove that Talbe-Muwathibat has been made and thereafter Talb-e-Ishhad as required under section 130) of the Act, was made. Since there was glaring and fundamental contradiction regarding the date of knowledge and Talb-e-MUwathibat, therefore, this has been proved on the record that the plaintiff-respondent has set up a false case of asserting Talb-e-Muwathibat, which could have not been reconciled by him by producing the notice Exh.Pl and Exh.P.2 to establish Talb-eIshhad. The judgment of the learned Civil Judge was based on correct appreciation of evidence. The learned Additional District Judge fell in error by reversing the finding on Issue No,2 by misreading the evidence on the record. Therefore. he has committed material irregularity and illegality by exercising. his jurisdiction to set aside the judgment and decree of the learned trial Court dated 14- 9-1999 through the impugned order dated 25-1-2000.
For what has been discussed above. this revision petition is allowed, the judgment and decree dated. 25-1-2000 passed by the 'Learned Additional District Judge. Wazirabad is set aside. the judgment and decree of the trial Court dated -14-9-1999 dismissing the suit of the respondent- plaintiff is restored. Parties to bear their own costs.