Gul Waris Khan, Plaintiff/respondent filed suit for possession through pre-emption of land mentioned in the heading of the plaint against the petitioner/defendant in the Court of learned Senior Civil Judge, Karak.. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties dismissed the suit vide judgment and decree dated 19-6-1998. Feeling aggrieved with the said judgment and decree, respondent filed Appeal No,70/13 in the Court of learned District Judge, Karak, which was allowed, decree to the extent of half share of property in question on payment of Rs,4,784.60 per Kanal was passed in favour of respondent/plaintiff vide judgment and decree dated 30-7-2001. Being not contented with the judgments and decrees of the Courts Now.The petitioner has filed revision petition in hand.
2. Haji M. Zahir Shah, the learned counsel for the petitioner argued that the Courts below have failed to appreciate the evidence. The transaction was through Hiba and not sale. It was the duty of respondent/plaintiff to prove that Mutation No,5868 attested on 17-5-1996 was of the sale but he failed to prove the same. Neither the respondent/plaintiff nor Patwari Halqa nor any other person stated a single word that the above mentioned mutation was sale mutation.
3. It was also argued that the suit filed by the respondent/plaintiff was hopelessly barred by time.
The suit property had been orally gifted to petitioner in the year 1972 with its possession and the petitioner had made construction over the same. This fact was known to the respondent/plaintiff.
The mutation in question was attested in order to keep the Revenue Record straight.
4. It was also argued that the respondent/plaintiff failed to prove Talbs in accordance with law. The learned trial Court had through well-reasoned judgment held that Talb-e-Muwathibat as well as Talb-e-Ishhad were not made in accordance with law, but the learned Appellate Court fell in error by holding that the Talbs were made according to law, therefore, the appeal filed by the respondent/plaintiff deserved dismissal.
5. On the other hand Mr. Abdul Sattar Khan the learned counsel for the respondent argued that transaction in question through Mutation No,5868 Exh.P.W.2/4 was in fact sale but in order to deprive the respondent/plain aff of his right of pre-emption, the transaction was recorded as Gift/Hiba. The respondent/plaintiff successfully proved through convincing evidence that the same was sale.
6. It was also argued that the suit filed by the respondent/plaintiff was within time. Mutation No,5868 was attested on 17-5-1996 Exh.P.W.2/4. The respondent/plaintiff came to know about the said sale on 20-6-1996. He there and then made Talb-e-Muwathibat and on the same day sent notice of Talb-e-Ishhad. The Talbs were proved in accordance with law and the learned Appellate Court has rightly appreciated the same.
7. I have heard the learned counsel for the parties at length and perused the record carefully.
8. The argument of the learned counsel for the petitioner that the suit filed by respondent/plaintiff was barred by time has no force at all. The perusal of the record shows that Mutation No, 5868 was attested on 17-5-1999 Exh.P.W.2/4. The respondent/plaintiff came to know about the sale transaction on 20-6-1996 at 9-00 a.m. In the premises of District Courts, Karak. He there and then made Talb-e-Muwathibat. He also served notice of Talb-e-Ishhad upon the petitioner under registered cover A.D. On the same day. The period of limitation when the transaction is effected through mutation, as per section 31 (b) of the N.-W.F.P. Pre-emption Act, 1987 would start from the date of attestation of mutation and not from the date, the vendee entered into possession of the property in question. Reliance in this regard can be validly placed on the following authoritative judgments:--
(i) Nazu Khan v. Karam Hussain Khan through Legal Heirs (2000 SCM R 1053),
(ii) Tajul Mulk v. Mst. Zaitoon Bibi and 3 others (PLD 1994 SC 356).
(iii) Mst. Majidan Khanum v. District Judge, Vehari (1984 CLC 3270), and
(iv) Abdul Akbar v. Fazal Mahmood and 2 others (1990 M LD. 1019).
9. Keeping in view the above dicta laid down by various Courts it can be safely held that the suit filed by the respondent/plaintiff was within time.
10. The argument of the learned counsel for the petitioner that the transaction in question was gift and not sale has no substance for the reasons:-- ' Firstly, because the petitioner failed to prove that the property in dispute had been gifted to her by Saeed Khan. She failed to produce Saeed Khan in order to prove that the transaction was gift and not sale. Saeed Khan was alive and was very much present but this strong piece of evidence was withheld by her for reasons best known to her. As per Article 129(g) of Qanun-e-Shahadat Order, 1984 legal presumption would be that in case he (Saeed Khan) had been produced, then his deposition must have been against the plaintiff. Similar question came up for hearing before the Appellate Bench of august Supreme Court of Pakistan in Muhammad Mal Khan v. Allah Yar Khan (2002 SCM R 235), in which it was held:- "Although it is not necessary to mention the name of the person in the plaint in whose presence Talb-e-Muwathibat was made, but in this case the plaintiff admitted in his cross-examination that he had made Talb in presence of Tayyab Khan but he failed to produce him as his witness. It was also not clarified/explained by the plaintiff in his statement as to why Tayyab Khan could not be produced as it was not stated that he was either won over by the other side or that he had turned hostile towards him for some other reasons or that out of fear of the defendant or for some other consideration the defendant was successful to prevent him to depose in favour of the plaintiff.
Article 129(g) of Qanun-e-Shahadat reads:-- That evidence which could be and is not produced would, ifproduced, be unfavourable to the person who withholds it." Therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him."
Secondly, there was no relationship between Saeed Khan and Mst.Gohar Sultan on the basis of which the suit property could be gifted by Saeed Khan in her favour.
11. So far as Talb-e-Muwathibat and Talb-e-Ishhad are concerned, the same were also made in accordance with law. Very minor contradictions with regard to Talb-e-Muwathibat specially when the statement of the witnesses is recorded after long time are to be ignored. Reliance in this regard is placed on Abdul Qayyum (deceased) through L.Rs, v. Muskh-e-Alam and another (2001 SCM R 798).
12. The learned Appellate Court while relying upon Revenue Record as well as report of the Local Commission has come to the conclusion that petitioner/defendant was co-sharer in the suit property and she made construction in the capacity of co-sharer. Since the parties were declared as co-sharers in the property in dispute having equal rights, therefore, the learned Appellate Court has rightly held them entitled to share the same equally.
I have not been able to find out any misreading or non-reading ofevidence or any material irregularity or any illegality or any jurisdictional error or defect in the impugned judgment/decree: of the Appellate Court warranting interference. Resultantly, the revision petition is dismissed with no orders as to costs.