2013 C L C 871
[Balochistan]
Before Muha mmad Noor Meskanzai, J
BIBI RUKHSANA through Attorney ----Petitioner
Versus
ABDUL MALIK KHAN and 2 others ----Respondents
Civil Revision No.465 of 2010, decided on 31st December, 2012.
(a) Islamic Law ---
----Pre-emption suit ---Talbs, performance of---Proof ---Record showed that pre -emptor's son
came to know about suit sale on 17 -1-2009, whereas copy of mutation was applied on 11 -3-
2009 ---Nothing was available on record to show that vendee had raised construction on suit plot
subsequent to its purch ase---Pre-emptor on coming to know about suit sale on 17 -1-2008 was
legally required to have made first Talb on same date and time, but he remained kept quiet till
11-3-2009 ---Presuming for sake of arguments that pre -emptor gained knowledge of sale on
getting copy of suit mutation, then person who delivered him its copy would have been best
witness to state and confirm factum of first Talb ---Pre-emptor had not explained reason for
making application for copy of suit mutation ---Such negligent conduct of pre -emptor was not
condonable ---Law would favour vigilant and not indolent ---Suit was dismissed in
circumstances.
(b) Administration of justice ---
----Law would favour vigilant and not indolent.
(c) Islamic Law ---
----Pre-emption suit --- Talb-i-Muwathibat, performance of --- Non-disclosing in plaint time and
names of witnesses in whose presence such Talb was alleged to be performed ---Effect ---Right of
pre-emption could be enforced if pre -emptor had been able to establish to have performed Talbs
exactly and absolutely in form, manner, nature and method provided under Islamic Law ---
Conditions prescribed for performance of such Talb would not be supposed to have been
satisfied ---Suit was dismissed in such circumstances.
Bashir Ahmed and another v. Mushtaq Ahmed 2007 SCMR 895 and Abdul Qayyum v.
Muhammad Sadiq 2007 SCMR 957 ref.
(d) Civil Procedure Code (V of 1908) ---
----O. XX, R. 1 & O. XLI, Rr. 30, 33 ---Judgment of Trial Court being at variance with that of
Appellate Court ---Effect ---Findings of Appellate Court, if based on proper appraisal of material
available on record, would deserve much weight in such case.
Hakim -ud-Din through L.Rs. and others v. Faiz Bakhsh and others 2007 SCMR 870 and
Abdul Nabi and 29 others v. Jan Muhammad and 2 6 others 1998 CLC Quetta 1842 rel.
Kamran Arshad for Petitioner.
Zafar Alam Mandokhail for Respondents.
Date of hearing: 7th December, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. --- Instant revision petition is directed against
the order/judg ment dated 31st October, 2010 passed by the Additional District Judge -V, Quetta,
whereby the judgment/decree dated 4th December, 2009 passed by Civil Judge -VI, Quetta was
set aside and the suit filed by petitioner was also dismissed.
2. Facts relevant fo r disposal of instant petition are that the petitioner instituted a suit for
possession through pre -emption against the respondents in the Court of Civil Judge -VI,
Quetta. It was averred in the suit that the petitioner is owner of a house bearing Khasra
Nos.1602/1598 -1596/ 1594 -1587/ 1577/ 1560 -1504/ 1512 -1485/ 135, Measuring 0 rod, 9 poles
situated in Mohal Chashma Hudda, Mouza Hudda, Tappa Sadder, Tehsil and District Quetta. It
was further averred in the suit that adjacent to the house of plaint iff/petitioner, there is an open
piece of land bearing Khasra No. 143, measuring 2 rods, 34 poles situated in Mohal Chashma
Hudda, Mouza Hudda, Tappa Sadder Tehsil and District Quetta. Previously the said plot was
owned by defendant No.1, who has recently sold out the same to defendant No.2 against sale
consideration of Rs.500,000/ - (Rupees five lacs) vide Mutation No.4748 attested on 16th
February, 2009. It is case of the petitioner/plaintiff that she has a right of pre -emption over the
above mentioned plo t being adjacent to the house of plaintiff. The plaintiff came to know about
the sale transaction when defendant No.2 came to the land in question and tried to demolish
room of the watchman. The defendant No.2 was restrained by the attorney of plaintiff no t to
demolish the room, whereupon, the former disclosed that he intends to expand the opening
entrance as he has purchased the plot. The plaintiff authorized her attorney to obtain copy of
mutation and make talbs. The latter immediately shouted and perform ed first talb (talb -e-
mawasibat). After performing the first talb plaintiff with least practicable delay rushed to the
land in question and performed second talb (talb -e-ishhad) in presence of witnesses namely
Aamir and Irfan by making reference o f first talb and asserting the right of pre -emption. The
plaintiff, despite performing talbs offered Rs.500,000/ - to defendant No.2 with the request to left
the land in question but he refused, hence the suit.
3. The suit was contested by respondents by way of filing written statements, wherein
besides raising certain legal objection claim of petitioner was repudiated on merits.
4. The learned trial Court, out of the pleadings of the parties framed following issues for
determination: ---
(1) Whether th e suit of plaintiff is not maintainable within the purview of legal objection
(sic) B, D and E, raised by defendants?
(2) Whether the plaintiff is entitled for possession through pre -emption, of the suit -land?
(3) Relief.
5. Thereafter, the parties w ere directed to adduce evidence in support of their respective
claims, whereupon plaintiff produced three P.Ws. and attorney for plaintiff also got recorded his
statement; in rebuttal, the respondent No.2 examined himself, besides producing two DWs.
6. The learned trial Court after hearing the parties and evaluating the evidence vide
judgment and decree dated 4th December, 2009 decreed the suit filed by petitioner. Respondent
feeling aggrieved filed Civil Appeal No.89 of 2009, which was allowed by the app ellate Court,
hence this revision petition.
7. Learned counsel for the petitioner argued with great vehemence that the order passed by
learned appellate Court is in clear violation of Order XLI, Rule 31, C.P.C. The order passed by
learned appellate Court is result of misreading of evidence. The petitioner has established her
case by producing tangible and confidence -inspiring evidence and the learned trial Court after
proper appraisal of evidence available on record rightly decreed the suit but the learne d appellate
Court without assigning any cogent reason set aside the judge/decree passed by the trial Court.
Learned counsel stressed that the trial Court after taking into consideration all aspects of the
case and considering the entire material a vailable on record rightly decreed the suit but the
learned appellate Court in utter violation and disregard of law illegally and without any
justification set aside the judgment and decree passed by the trial Court.
On the other hand, learned counsel f or the respondents vehemently opposed the
submission and argued that there is no illegality or irregularity in the judgment passed by the
learned appellate Court. The judgment impugned is not result of misreading or non -reading of
evidence. The petitioner failed to prove talbs in accordance with law, as such; the learned
appellate Court had no other option but to set aside the judgment and decree passed by the trial
Court which was otherwise not sustainable under the law. Learned counsel further argued that
the petitioner does not fall within the definition of pre -emptor as contemplated by Muhammadan
Law, because the property in question is not adjacent nor adjoining with the property of
petitioner. Learned counsel emphasized that P.W. -1 has admitted that in between the property in
question and house of the petitioner there is a plot bearing Khasra No.43 which bifurcates the
both. The petitioner was well aware of the sale transaction at the relevant time but she did not
perform talbs nor was she willing to pu rchase the property. Learned counsel further contended
that on the basis of material available on record it can safely be concluded that the
petitioner was aware about the sale transaction on 17th January, 2009 did not perform the talbs
but subs equently she managed and planned for filing of a baseless suit on 11th March, 2009.
8. I have considered the arguments advanced by the learned counsel for the parties and
perused the record of the case. Perusal of record reflects that on 17th January, 2009,
petitioner's son came to know that the property in question has been purchased by
respondent No.1 but for the reasons best known to her, she filed application for obtaining
copies on 11th March, 2009. This fact can well be ascertained from the statement of P.W. -3, who
stated as under: ---
9. The above reproduced portion of the statement makes it crystal clear that for all intended
purpose of pre -emption, the petitioner came to know about the sale transaction on 17th January,
2009. On coming to know about the sale transaction she should have made first talb on the same
date and time but instead she preferred to keep quiet and remained in slumber up to l1th March,
2009. It is not known what was the fresh developmen t which motivated the petitioner to file
application for copy of mutation on 11 -3-2009. Suffice to observe, that it is not the case of
petitioner that she moved application for obtaining copy of mutation on 18th January, 2009 but
the same was delivered to her on 11th March, 2009, therefore, she performed the talbs on llth
March, 2009. Had it been the case, even then in view of the statement of the P.W. referred to
hereinabove, the petition could not maintain the instant suit for pre -emption. This is also no t on
record that subsequent to purchase by respondents Nos.2 or 3 any construction was raised, so in
any case, the petitioner claims to have performed talbs subsequent to obtaining copy of mutation,
whereas legally the talb should have been performed on 17 th January, 2009. For the sake of
argument, if it is presumed that the petitioner gained knowledge about the sale transaction on
receipt of mutation, then in that case the person who delivered the copy of mutation to the
attorney for the petitioner would h ave been best witness to state and confirm factum of
performance of talb -e-mawathibat. The conduct of petitioner is not reflective of a vigilant litigant
and pre -emptor. Furthermore, the petitioner did not explain the reason for filing of application on
11th March, 2009, therefore, this negligence and recklessness is not condonable as the law aids
the vigilant and not indolent.
10. Moreover, in the plaint, the plaintiff remained absolutely silent that in whose presence
she performed talb -e-mawahtibat. Unl ess in the plaint, plaintiff states the time and mentions the
name of the witness or witnesses, to my perception the conditions prescribed for talb -e-
mawthibat are not supposed to be satisfied. In this regard, I am fortified by the judgment titled as
Bashi r Ahmed and 1 another v. Mushtaq Ahmed reported in 2007 SCMR 895, wherein it has
been held as under: ---
"11. Talb-i-Muwathibat is immediate demand of exercise of right of pre -emption on receipt of
information of sale in the sitting in which pre -emptor receives information, and unless the place
of meeting and time of making demand is mentioned in the plaint, it is not possible for the pre -
emptor to successfully establish the performance of Talb -i-Muwathibat, and in absence of proper
proof of making first Talb„ pre -emptor cannot succeed in the suit. This is correct that law does
not require to make the gist of evidence in the pleading, but in the suit for pre -emption, omission
of material facts relating to the performance of Talbs in the plaint may lead to a strong
presumption that pre -emptor without fulfilling the requirement of the first Talb filed the suit."
Further reliance can be placed on the judgment titled as Abdul Qayyum v. Muhammad
Sadiq reported in 2007 SCMR 957, wherein it has been ob served as under: ---
"5. The right of pre -emption is a piratical right and pre -emptor must prove essential
conditions for exercise of such right in accordance with provision of section 13 of Punjab Pre -
emption Act, 1991 and without proving Talb -i-Muwathib at, which is foundation for exercise of
right of pre -emption, the pre -emptor cannot maintain the suit. There is no cavil to the proposition
of law that pre -emptor without proving the performance of Talb -i-Muwathibat and Talb -i-Ishhad
strictly in accordance with provision of section 13 of Punjab Pre -emption Act, 1991, cannot
succeed. In the present case pre -emptor claimed to have made Talb -i-Muwathibat on 6 -8-1995
on the information conveyed to him by the witness but he did not appear in the witness -box to
make a statement in affirmative of his claim regarding receipt of information and performance of
Talb-i-Muwathibat immediately on receipt of information in presence of the witnesses. This is an
admitted fact that attorney of the pre -emptor was not present i n the meeting in which he claimed
to have performed Talb -i-Muwathibat and had no personal knowledge about the date of sale and
making of performance of Talbs by the pre -emptor rather his statement was based on the
knowledge of the pre -emptor who despite be ing available, did not appear in the witness -box. The
pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb -i-Muwathibat being a
personal act of the pre -emptor, is required to be proved by him through his own statement and an
attorney may not be substitute of the pre -emptor under the law, therefore, notwithstanding the
provision of section 14 of Punjab Pre -emption Act, 1991 according to which if a person is unable
to make demand under section 13 (ibid), his agent may make such demand on his behalf but the
petitioner cannot get benefit of this exception firstly for the reason that he has claimed
performance of Talb -i-Muwathibat in person and secondly, this exception appears to have been
created to meet a situation in which either the pre -emptor is minor or is invalid or is not in a
position in the ordinary circumstances to make Talb -i-Muwathibat himself and appear in Court
in person. In the case in hand, it is an admitted fact that the pre -emptor himself made Talb -i-
Muwathibat and vas als o available both at his ordinary place of residence and business and was
not suffering from any disability to appear before the Court. It is also a fact that the attorney of
pre-emptor had no direct knowledge of the performance of Talb -i-Muwathibat by the pre-
emptor, therefore, his statement regarding performance of Talb -i-Ishhad was based on hearsay
knowledge."
11. Similarly, the P.Ws. produced by the petitioner have not been able to prove the factum of
performance of talbs. As far as P.W. -1 is concerne d, he has produced record and has also
admitted that in between Khasra Nos.1602, 1598, 1596, 1594, 1587, 1577, 1560, 1504, 1485,
135 and 143, there is another Khasra number as well. Statements of P.W. -2 and P.W. -3 qua
performance of Talb -i-Muwathibat are not consistent. P.W. -2 states as under: ---
Whereas P.W. -3 stated as under: ---
12. The perusal of above reproduced portion of statements reflects that the statements are
inconsistent, contradictory and conflicting. P.W. -3 unequivocally states the attorney for
plaintiffs visited Tehsil Office, where he came to know about purchase of property without
reference to any particular date. He does not say that upon receipt of information there and then
attorney for plaintiff made talb -e-muwathibat. Furthe rmore, this P.W. never states that attorney
applied for copies of mutation and on receipt of mutation attorney came to know about sale
transaction. Moreover, the statements qua the performance of first talb are silent when the second
talb is claimed to hav e been made. It may be observed that the right of pre -emption can only be
enforced provided seeker of the pre -emption has been able to establish to have performed the
talbs exactly and absolutely in the form, manner, nature and method provided under the Is lamic
Law.
In the light of what has been discussed hereinabove, I am of the considered opinion that
the appellate Court after proper appraisal of material available on record has rightly resolved the
crucial issue i.e. issue No.2 by reversing the findin gs of trial Court which were unsustainable as
the judgment/decree of trial Court were contrary to norms of natural justice. Learned counsel for
the petitioner has not been able to point out any misreading or non -reading of evidence or any
irregularity in e xercise of the jurisdiction by the appellate Court. On the contrary, the learned
appellate Court after proper appreciation of law and considering the entire material available on
record has passed a well -reasoned judgment which is not open to any exception . The law stands
settled that the findings of appellate Court if based on proper appraisal of material available on
record deserve much weight. Reliance is placed on the judgment titled as Hakim -ud-Din through
L.Rs. and others v. Faiz Bakhsh and others rep orted in 2007 SCMR 870 (relevant at page -875-
876), wherein it has been observed as under: ---
"6. It is proper to mention here that respondent did not produce any evidence to prove the
contents/pleas/stand taken in the plaint by him. Therefore, all the co ntentions raised by the
learned counsel of the respondent or finding of the trial Court as well as the learned High Court
are based on misreading and non -reading of the record. As regards the finding of the learned
Additional District Judge on Issue No.8 i s concerned, it may be noticed that in his capacity as
Appellate Court, the learned Additional District Judge possessed the jurisdiction to come to his
own conclusion, on the basis of evidence adduced before the trial Court by the parties and
resultantly, he could competently reverse the finding of the trial Court on the questions of facts
involved in Issue No.8. It is established proposition of law that finding on questions of law or
fact, howsoever, erroneous the same may be recorded by a Court of compete nt jurisdiction,
cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section
115, C.P.C., unless such findings suffer from jurisdictional defect, illegality or material
irregularity. The Privy Council while interpre ting section 115 has laid the following principle in
N.S. Venkatagiri Ayyyangar's case PLD 1949 PC 26: ---
"This section empowers the High Court to satisfy itself upon three matters; (i) that the
order of the subordinate Court is within its jurisdiction; (ii) that the case is one in which the
Court ought to exercise jurisdiction; and (iii) that in exercising jurisdiction, the Court has not
acted illegally, that is, in breach of some provisions of law, or with material irregularity, that is,
by committing some error of Procedure in the course of the trial which is material in that it may
have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has
no power to interfere because it differs, however, profoundly, from the conclusion of the
subordinate Court upon question of fact or law."
7. The learned High Court has reversed the finding of the First Appellate Court in violation
of the aforesaid dictum laid down by the P.C. which was approved by this Court in various
pronouncements. See Ghulam Qadir's case PLD 1988 SC 625. It is a basic and fundamental
principle of administration of justice that in case there is a conflict between the judgment of the
trial Court and the First Appellate Court, then normally judgment of the First Appellate Court is
to be given preference over the judgment of the Trial Court, unless and until the judgment of the
First Appellate Court is based on misreading or non -reading or in violation of the principles laid
down by the superior Courts while exercising power by the learned High Court under section
115, C. P. C. In the case in hand, the learned High Court has interfered with in the findings
recorded by the First Appellate Court without any justification and logic as mentioned
hereinabove. Th e respondent has failed to prove his case as mentioned above, therefore,
substantial justice has been done between the parties in view of judgment of the First Appellate
Court, therefore, learned High Court has erred in law to interfere in the findings of the fact
recorded by the First Appellate Court while exercising power under section 115, C.P.C."
Likewise in the case titled Abdul Nabi and 29 others v. Jan Muhammad and 26 others
reported in 1998 CLC Quetta 1842 (relevant at page -1847), it has been ob served as under: ---
"It is a settled proposition of law that in event of conflict of judgments between the trial
Court and the Appellate Court, ordinarily the findings of the Appellate Court have been given
weight, unless the same is not supported by le gal evidence or is based on surmises and
conjectures."
For the foregoing reasons, petition has no force, which is dismissed.
SAK/26/Q Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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