' This civil revision arises out of a judgment and decree, dated 4-9-1994 whereby the appeal of the plaintiff/respondent was accepted and cross-appeal of defendant/petitioner was rejected and the judgment and decree of the trial Court, dated 22-11-1993 dismissing the suit of the respondent was reversed.
2. The suit for possession through pre-emption filed by Muhammad Aslam plaintiff/respondent was decreed by the First Appellate Court reversing the judgment and decree, dated 22-114993 awarded by the trial Court. The respondent assailed the judgment and decree of the trial Court through an appeal whereas defendant/respondent through a cross-appeal challenged the finding of the trial Court on Issue No,7.
3. Facts giving rise to this litigation are that on 8-7-1992 (respondent Muhammad Aslam) son of Jaffer filed a suit for possession through pre-emption in respect of the land 16/99 share measuring 2 Kanals, 1 Marla bearing Khewat No,20/19 Khatooni No,233 Min, Square No,42, Killa No,7/1/4-19 and 25/99 share situated in Village Bahu Mann, Tehsil and District Sheikhupura. It was stated in the plaint that through a registered sale-deed, dated 28-3-1992 vendors have sold the land in favour of defendant/petitioner for a sum of Rs,12,300 but the consideration of Rs,21,500 was shown in the sale-deed. It was further stated that the plaintiff/respondent came to know about the sale on 30- 6-1992 and on the same day in the presence of Mirza son of Sohna and Haji Shahadat son of Mutalli, he has declred his right of preemption. According to the plaint he sent a notice, dated 2-7- 1992 through registered A.D. Post to comply with the Talb-e-Ishhad. The plaintiff/respondent also stated that he has a superior right of pre-emption as a co-sharer: He is a joint owner as well the means of irrigation are common. The defendant/petitioner resisted the suit of the plaintiff/respondent and stated that he has purchased the land for a consideration of Rs,21,500. He also pleaded that the sale was in the knowledge of the plaintiff/respondent. It was also claimed by the defendant that he is a co-sharer and he has similar rights. In view of the pleadings of the parties issues were settled and both the parties adduced evidence. Out of the issues framed, Issue No,6 related to fulfilment of three Talbs according to Islamic Law and Issue No,7 related to the superior right of pre-emption of the plaintiff qua the defendant. The trial Court after completing the hearing of the case dismissed that suit of the plaintiff/respondent holding that Talb-e-Muwasabat and Talb-e-Ishhad were not proved. On Issue No,7 the finding of the trial Court was that the plaintiff/respondent has a superior right but in view of his finding on Issue No,6 the suit was dismissed. Both the parties challenged the judgment and decree of the trial Court through cross- appeals. The plaintiff/respondent challenged the decision of the trial Court on Issue No,6 and defendant/petitioner assailed the finding of the trial Court on Issue No,7. The Appellate Court accepted the appeal of the plaintiff/ respondent and held that Talb-e-Muwasabat and Talb-e- Ishhad were proved. The superior right of the plaintiff was also upheld. Consequently the suit of pre-emption filed by the respondent was decreed. The cross-appeal filed by the petitioner was dismissed. Being dissatisfied with the judgment and decree of the Appellate Court, the defendant/petitioner filed the present revision petition.
4. The learned counsel appearing for the petitioner argued that Talb-e-Muwasabat as well as Talb-e-Ishhad were not proved from the evidence. The trial Court decision was based on a proper and detailed reasoning on Issue No,6 but the Appellate Court in reversing the judgment not only misread the evidence but failed to spell out the reasons.
5. The counsel for the respondent supported the judgment of the Appellate Court.
6. I have considered the arguments of the learned counsel for the parties and perused the record. It was pleaded by the defendant that besides the suit other suits were also filed by Moharram son of Jaffer Hussain the brother of the plaintiff/respondent. The plaintiff/respondent produced P.W.1 Muhammad Sharif, Naib-Post Master to prove post office receipts Exh.P.1. P.W.2 Maqbool Ahmad is a Clerk of an Advocate who was produced to prove the copy of the notice Exh.P.2 pertaining to Talb- e-Ishhad. P.W.3 Haji Shahadat appeared for plaintiff and stated that he and Mirza P.W.4 informed plaintiff about execution of sale-deed of land in question and he has also signed the copies Exh.P.2.
He has further stated that he was informed about the sale by Akram and Muharram who are real brothers of the plaintiff/respondent and they live together. He also admitted that the brothers of plaintiff have already filed a suit for declaration in the Court where it was subjudice. This writer also admitted that he was not present at the time of the execution of sale-deed. He also did not state categorically that the plaintiff/respondent made a jumping demand of his right of pre-emption.
P.W.4 Mirza stated in his evidence that he was not present at the time of the sale-deed. He heard about it and he was informed about the sale-deed by Aslam plaintiff. He further stated that he was brought to the Court by Muhammad Aslam for sending a notice. He also stated that Muharram told him that the sale was effected for a sum of Rs,12,300. He admitted that Muharram is the real brother of Aslam plaintiff and he admitted that Muharram and Aslam have filed a suit or declaration which is pending. He was also not categorical about Talb-e-Ishhad having been made in his presence by Muhammad Aslam plaintiff. The plaintiff appeared as P.W.5 and stated that he came to know about the sale on 28-6-1992 and he expressed his desire to pre-empt the sale land. In his cross- examination he stated that he came to know about the sale through common resident of the village. He admitted that Muharram and Akram are his real brother's and all three of them are residing jointly. He also admitted that Muharram came to know about the sale on the same day when he acquired the, knowledge. In rebuttal the defendant/petitioner produced four witnesses, and he himself appeared as D.W.5. Documents Exhs.D.1 to D.11 were also produced. Exh.D.2 is a copy of the plaintiff of a suit for declaration and permanent injunction filed by Muharram Ali and Muhammad Akram. In that suit defendant/petitioner as well as his vendor were arrayed as defendants. This suit was filed on 12-5-1991. It was, admitted by the plaintiff/respondent that his brother Akram also came to know about this sale on the same day. This means that the factum of sale was in the knowledge of the plaintiff/respondent prior to filing of the suit by his brother Muharram Ali and Akram. Even otherwise it is improbable that three brothers living in the same house, two of them filed a suit for declaration on 12-5-1992 and the third brother would have no knowledge about the filing of the suit as well as of the sale. Further, it is also observed that in the notice Exh.P.2 date of the knowledge is mentioned as 30-6-1992 whereas while appearing as P.W.5 he has stated the date of .28-6-1992. This discrepancy of date when views in the light of admission of plaintiff/respondent that Tie came to know about the sale when his brother Muharram also came to know, it is proved from the perusal of the copy of the plaint Exh.D.2 that plaintiff had acquired the knowledge of the sale before filing of the suit alongwith his other brothers. This completely shatters the plea of plaintiff/respondent about the Talb-eMuwasabat.
7. The trial Court while rendering his finding on the issue of Talbs discussed in detail the evidence brought on record, but the Appellate Court did not discuss the evidence to see whether Talb-e- Muwasabat was sufficiently proved or not and without offering any reason or discussion merely held that Talb-e-Muwasabat was proved.
Manifestly the judgment of the Appellate Court suffers from misreading and non-reading of evidence and Additional District Judge has failed to exercise the jurisdiction vested in him. In the light of my observation and assessment of the evidence hereinbefore I hold that the plaintiff/respondent had the knowledge of sale prior to 12-5-1992 when his two other brothers filed a suit for declaration and permanent injunction and that Talb-e-Muwasabat was not made by him as a jumping demand at the time of the actual knowledge acquired by him and his plea that he acquired knowledge on 30-6-1992 and made Talb-e-Muwasabat stands belied. I, therefore, reverse the finding on Issue No,6.
' Consequently, I set aside the judgment and decree, dated 4-9-1994 passed by Additional District Judge, Sheikhupura and restore the judgment and decree of the trial Court, resultantly suit of the respondent stands dismissed.