The brief facts out of which the present revision petition arises are that Muhammad Tufail sold the land measuring 160 Kanals situated at village Karluwala Mankera, for a consideration of Rs.3,50,000 vide registered sale-deed dated 30-3-1993. The petitioner filed a suit for pre-emption before the Civil Judge 1st Class, Mankera on the basis of co-sharer, Sharik Khata on 28-7-1993. The petitioner filed. Written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed the following issues:-- (1)Whether requisite "Talbs" duly performed by the plaintiff? OPP (1A)Whether plaintiff has right of pre--emption and is entitled to get the decree for possession through pre--emption as prayed for? OPP (2)Is suit barred by limitation? OPD (3)Is suit wrongly valued for the purposes of court-fee and jurisdiction? What is correct valuation?
OPD (4)Are defendants entitled to special costs? OPD (5)Are defendants entitled to incidental charges as well as improvements? To what extent? OPD (6)Was ostensible sale price fixed in good faith and actually paid? OPD (7)If Issue No.6 is not proved, what was market value of the suit land at the time of sale? OPPs (8)Relief,
2. The learned trial Court decreed the suit vide judgment and decree, dated 8-11-1994 and also determined the consideration amounting to Rs.1,63,200 instead of Rs.3,50,000. The respondents being aggrieved preferred an appeal before the learned Additional District Judge, Kallor Kot, Camp at Bhakkar, who accepted the same vide judgment and decree, dated 13-6-1996, hence the present revision petition.
3. The learned counsel of the petitioner submits that the First Appellate Court erred in law to reverse the findings on Issue No. 1 without adverting to the reasoning of the Trial Court and decided the case against the petitioner on the basis of the overruled judgment. He further submits that judgment of the First Appellate Court is not 'in accordance with law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:--
(1) Muhammad Sharif v. Abdul Majid 1982 CLC 208; (2) Madan Gopal v. Maran Bepari PLD 1969 SC 617; (3) Munawar Hussain v. Ali Hussain 1979 CLC 838 and (4) Alloo v. Sher Khan and others PLD 1985 SC 382.
He further submits that petitioner got information about the sale of the land in question to the respondents on 12-7-1993. The petitioner sent a notice to the respondents through their real brother Abdul Ghafoor on 13-7-1993. The petitioner produced notice Exh.P1, Postal Receipt Exh.P2 and registered A.D. Exh.P3. He further submits that petitioner filed a suit against the respondents through their real brother as is evident from the title of the suit which is at page 29 of the file. Lie further submits that respondents filed a written statement through the said Abdul Ghafoor who himself mentioned as guardian of the respondents which is at page 39 of the file. He further submits that respondents did not take any objection qua the guardianship before the trial Court, therefore, learned First Appellate Court erred in law to decide the case against the petitioner. He further urges that respondents did not take such ground in the memorandum of the appeal before the First Appellate Court. He further submits that name of Abdul Ghafoor is mentioned as guardian of the respondents in the registered sale-deed at page 116 and at page 121 of the file, therefore, learned First Appellate Court erred in law to decide the case against the petitioners in violation of the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Muhammad Zubair v. Saleh Muhammad 1993 CLC 1047; Muhammad Ilyas v. Muhammad Siddique 1989 SCMR 1496 and Muhan imad Bashir v. Allah Rakha 1990 CLC 1715.
He further submits that the learned First Appellate Court erred in law to decide the case against the petitioners merely on the ground that the petitioner did not send notice to the respondents through their natural guardian i.e. Father which is not in accordance with section 14 of the Punjab Pre-- emption Act, 1991 which is clearly envisaged agent/guardian. He further submits that evidence was recorded by the trial Court after one year, therefore, minor contradictions were rightly ignored by the trial Court whereas the Appellate Court wrongly had given due weight to the minor contradictions. In support of his contentions, he relied upon the following judgments:-- Haji Noor Muhammad v. Abdul Ghani 2000 SCMR 329; Muhammad Aslam v. Muhammad Hussain 1999 SCMR 1332 and Khalid Hussain v. Muhammad Baqir and others PLD 2002 Lah. 280.
He further submits that the trial Court had given the findings on facts against the respondents after proper appreciation of the evidence in terms of the law laid down by the superior Courts whereas the First Appellate Court reversed the findings on Issue No. 1 by misreading and non-reading of the record and the violation of the law laid down by the superior Courts. In support of his contentions, he relied upon the following judgments:-- Muhammad Hanif v. Mst. Munawar Bibi 1999 SCMR 2230.
He further submits that the First Appellate Court decided the case on the basis of the reported judgment of the Honourable High Court in case 1995 CLC 769 which is no more a good law as per principle laid down by the Honourable Supreme Court in the following judgments: Altaf Hussain v. Abdul Hameed and others 2000 SCMR 314 and Mst. Amir Begum v. Muhammad Naeem Khan PLD 2000 SC 839.
4. The learned counsel of the respondents submits that respondents had raised the objection that suit was not properly filed by the petitioner against the respondents as is evident from preliminary Objection No. In written statement which is at page 30 of file. He further submits that subsequently the petitioner filed a suit against the respondents through their father as is evident from Annexure E attached with this revision petition. He further submits that Exh.P3 registered A. D. Does not reveal the signature/thumb-impression of any person who had received the same. He further urges that there is no legal requirement that Abdul Ghafoor affixed his signature on the registered sale-deed.
He further submits that petitioner failed to prove Talbs in terms of section 13 of the Punjab Pre- emption Act, 1991 as is evident from the contents of the plaint and evidence of P.W.1 to P.W.3. He further submits that statements of the aforesaid witnesses are contradictory in nature. They did not corroborate with each other on the specific points. He further submits that petitioner did not give any specific averment in the plaint as well as in the statements of the witnesses to prove the Talbs in accordance with law. The statements of witnesses are entirely different with regard to the year and other main points as is evident from their statements which were legally taken note of by the First Appellate Court. He further submits that petitioner is not co-- sharer/Sharik Khata as the civil litigation qua the said Khata is pending between the petitioners and the other parties. He further submits that trial Court erred in law to reduce the sale price as the petitioner did not give any cogent evidence to prove that the price of the land in question was not Rs. 3,50,000. In fact the trial Court reduced the price on the oral statement of the petitioner's side/plaintiff, therefore, judgment of the trial Court is not valid. He further urges that section 14 of the Punjab Pre-emption Act is not attracted in the present case as the pre-emptor has right to send a notice either through the natural guardian or through his agent, therefore, arguments of the learned counsel of the petitioner has no force.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is admitted fact that the First Appellate Court decided the appeal without adverting to the reasoning of the trial Court in case the findings of both the Courts below qua Issue No. 1 is put in juxtaposition, therefore, the impugned judgment of the First Appellate Court is not in accordance with the dictum laid down by the Honourable Supreme Court in Madan Gopal and 4 others v.
Maran Bepari and 3 others PLD 1969 SC 617. The relevant observation is as under:-- "It seems clear to us that this is a case where the First Appellate Court has reversed the findings of the trial Court without paying any, heed to 'the reasoning given by the First Appellate Court. "
It is also admitted fact that the First Appellate Court decided the case against the petitioner on the basis of the law laid down in 1995 CLC 769. The aforesaid judgment is no more in the field in view of the law laid down by the Honourable Supreme Court in Altaf Hussain v. Abdul Hameed and another 2000 SCMR 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329. The judgment of the First Appellate Court is in violation of the law laid down by the Honourable Supreme Court in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case PLD 1983 SC 53 to covet cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom. The First Appellate Court has committed material irregularity. This Court has ample jurisdiction to disturb the findings of facts in such situation as per principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case 1988 SCMR 851. It is also admitted fact that petitioner did not attach all the documents with the revision petition as is evident from Annexure E at page 32 the title of the suit respondents through their real father whereas the original suit filed by the petitioner reveals that petitioner filed the suit against the respondents through their real brother Abdul Ghafoor as is evident from Annexure D. This fact was not considered by both the Courts below in their respective judgments. In case I reappraise the evidence myself then one of the parties will lose remedy of revision before this Court.
Keeping in view these circumstances, I set aside the judgment of the First Appellate Court and remand the case to the First Appellate Court to decide the appeal of the respondents afresh in terms of the law laid down by the Honourable Supreme Court in Madan Gopal and others v. Maran Bepari and 3 others PLD 1969 SC 617 preferably within four months after receiving the order of this Court. Parties are directed to appear before the First Appellate Court on 21-11-2002. The First Appellate Court shall decide the appeal of the respondents afresh without being influenced by the aforesaid observations or, this Court, strictly in accordance with law on merits.
Q.M.H./M.A.K./A-649/L