2015 C L C 343
[Balochistan]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
MUHAMMAD KHAN----Appellant
Versus
Ch. ABDUL RAHIM and 2 others ----Respondents
Regular First Appeal No.75 of 2010, decided on 20th November, 2014.
(a) Islamic law ---
----Pre -emption ---Talbs, performance of ---Evidence produced by plaintiff and his statement with
regard to performance of talbs by him and gaining knowledge of sale was not in consonance with
the pleadings ---No date, time and place had been mentioned in the plaint with regard to
performance of Talb -i-Muwathibat ---Averment made in the pleadings did not constitute the
evidence but evidence led must be consistent therewith---Pleadings could not be departed except
by way of amendment ---Anything stated outside the scope of such averment could not be looked
into---Evidence and statement of the plaintiff was not only divergent from pleadings but there
were inter se contradictions with regard to gaining knowledge of sale of suit land and
performance of required talbs ---Plaintiff had failed to establish performance of talbs in
accordance with law ---Findings recorded by the Trial Court were well versed and based on
sound reasoning ---Appeal was dismissed in circumstances.
Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs Choudhary
Brothers Ltd v. The Jaranwala Central Co -operative Bank 1968 SCMR 804 and Major (Retd.)
Barkat Ali v. Qaim Din 2006 SCMR 562 rel.
(b) Civil Procedure Code (V of 1908) ---
----O. VI, Rr. 7 & 17 ---"Pleadi ngs"---Scope ---Averment made in the pleadings did not constitute
the evidence but evidence led must be consistent therewith --- Pleadings could not be departed
except by way of amendment ---Anything stated outside the scope of such averment could not be
looked into.
Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs Choudhary
Brothers Ltd v. The Jaranwala Central Co -operative Bank 1968 SCMR 804 and Major (Retd.)
Barkat Ali v. Qaim Din 2006 SCMR 562 rel.
Miss Sabira Islam for Appellants.
Abdul Wali Khan Nasar for Respondent No.2.
Date of hearing; 10th September, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---- Through this Regular First Appeal the appellant
has challenged the validity of judgment and decree dated 1st March , 2010 passed by Senior Civil
Judge -III, Quetta, whereby; suit for pre -emption filed by the appellant was dismissed.
2. The brief facts leading to filing of this appeal are that the appellant preferred his suit for
pre-emption against the private respondents, pre -empting the sale of suit land bearing Khasra
No.2795/2618/2303 measuring 40 rods situated in Mohal Khushkaba Saraghurgh Mouza
Saraghurgh Tappa Durrani -II Tehsil Saddar District Quetta, adjacent to the property of the
appellant (plaintiff). The appellant averred in the plaint that the respondent No.1 in the end of
May, 2008 sold his property to respondent No.2 and also handed over the possession of the same
to the respondent No.2 (defendant No.2). It is further averred that soon after gaining the
knowledge about the sale of suit -land, he immediately asserted his right of pre -emption by
performing Talb -e-Mawasibat and after fulfilment all the requirements of Talbs he has also
offered the consideration amount to the private respondents.
3. The respo ndent No.2 contested the suit while, remaining respondents proceeded against
ex parte.
Out of pleadings of the parties, following issues were framed:
(1) Whether the suit is not maintainable in view of legal objection "A" of written statement
of defen dant No.2?
(2) Whether the disputed properties have been sold out in Rs.18,00,000?
(3) Whether the plaintiff is entitled to the relief claimed for?
(4) Relief.
4. The appellant, to substantiate his contentions produced PW -1 Jan Muhammad, PW -2
Ghula m Rasool, PW -3 Abdul Malik and got recorded his statement, whereas in rebuttal, the
respondent No.2 produced DW -1 Ghulam Mustafa, DW -2 Hashmatullah Qambrani, DW -3
Muhammad Azam and DW -4 Mushtaq Hussain and thereafter got recorded his statement.
5. The trial court after hearing the arguments from both the sides, vide impugned judgment
and decree dismissed the suit filed by the appellant, hence this appeal.
6. The learned counsel for the appellant contended that as regard the performance of Talbs
the trial court has failed to consider the evidence on the point of performance of Talbs, which
were duly performed by the appellant (plaintiff). Disputing findings of the trial court on the issue
of performing of Talbs learned counsel for the appellant stat ed that the appellant had produced
two witnesses, which have supported the substantial facts with regard to the required Talbs, but
the trial court has failed to appreciate their statements in its true perspective which resulted the
grave miscarriage of ju stice, therefore, the impugned judgment is not sustainable.
7. The learned counsel for the respondent No.2, on the other hand opposed the arguments
and contended that the appellant has failed to prove the performance of Talbs in accordance with
law, part icularly there is no substance on record with regard to performance of Talb- e-
Muwathibat. It is further contended that the evidence is not in consonance with the pleadings in
respect of gaining knowledge about the sale and performing Talb -e-Mawasibat, ther efore, the
trial court has rightly disbelieved the evidence produced by the appellant and the impugned
judgment and decree is based on reasons and liable to be sustained.
8. We have heard the learned counsel for the parties and have gone through the reco rd. The
appellant asserted that the suit property was sold by the respondent No.1 to respondent No.2 in
consideration of Rs.18,00,000 (rupees eighteen lacs only) and in this respect produced mutation
entries No.1272 Exh.P/3, on the basis whereof, mutation entries of the suit property in revenue
record was transferred in favour of the respondent No.2. The respondent disputed the above
consideration and stated that the suit property was actually purchased by him in consideration of
Rs.5,45,00,000 (rupees five crore forty -five lacs only) and substantiate his contention and
produced agreement dated 14- 4-2008 Exh.D/1 arrived between the respondents Nos.1 and 2
regarding sale and payment of consideration. The relevant is reproduced hereunder:
9. Further DW -4 Mus htaq Hussain, representative of Habib Bank Limited ("HBL") Prince
Road Branch, Quetta produced pay order as Exh.D/2 to Exh.D/5 total amount of Rs.5,45,00,000.
The documentary evidence Exh.P/3
produced by the appellant is mutation entries and on the basi s whereof, vandee i.e. respondent
No.2 derived the transfer of suit property in his favour which is admitted documents between the
parties, whereon consideration amount has been mentioned as Rs.18,00,000, whereas the
documentary evidence in this regard produced by the respondent No.2 showing the consideration
amount as
Rs.5,45,00,000 and in this respect there is dispute between the parties. To prove agreement
Exh.D/1, though the appellant has produced the marginal witness of the covenant i.e. DW -3
Muhammad Azam but he has failed to produce second marginal witness namely Haji Ghulam
Muhammad son of Haji Ghulam Dastageer. To prove the agreement as required by under article
79 of Qanun- e-Shahadat Order 1984 which reads as under: ---
"Proof of execution of doc ument required by law to be attested. --- If a document is
required by law to be attested, it shall not be used as evidence until two attesting witnesses at
least have been called for the purpose of proving its execution, if there be two attesting witnesses
alive, and subject to the process of the Court and capable of giving evidence."
10. The appellant through PW -3 has produced agreement Exh.P/3, but the second marginal
witness has not been produced to prove the contention regarding consideration amount, hence the
findings rendered by the trial court in respect of Issue No.2 is unexceptional, therefore, cannot be
disturbed.
11. The evidence produced by the appellant and his statement with regard to required Talbs
and gaining knowledge has been found depa rture from pleadings. PW -3 Abdul Malik deposed
that the appellant gained knowledge about the sale of the suit property in the first week of June,
2008, whereas the appellant in his statement stated that he gain knowledge of the said transaction
on 4th June , 2008 and asserted his right of pre -emption by making immediate demands, but
contrary to that in the plaint in paragraph 5 he averred as under: ---
"That the plaintiff soon after coming to know about the sale of suit land immediately
asserted his right of Pre -emption by performing Talb -e-Mawasibat."
12 In above paragraph of the plaint the appellant had averred that after gaining knowledge
about the sale of the suit property he immediately asserted his right of pre -emption by
performing Talb -e-Mawasibat . It is obvious from his pleadings that no date, time and place have
been mentioned in the plaint. The evidence produced by the appellant and in his statement, he
outright departed from his pleading. The averment made in the pleadings does not constitute t he
evidence, but evidence led must be consistent therewith, as provided Under Order VI, Rule 7,
C.P.C. which reads as under: ---
"Departure. --- No pleading shall, except by way of amendment, raise any new ground of
aim or contain any allegation of fact inconsistent with the previous pleadings of the party
pleading the same."
13. The above rules of procedure provides that the pleadings cannot be departed except by
way of amendment Under Order VI, Rule 17, C.P.C., therefore, anything stated outside the scope
of such averment cannot be looked into. In the case of Government of West Pakistan v. Haji
Muhammad, PLD 1976 SC 469, Messrs Choudhary Brothers Ltd v. The Jaranwala Central Co-
operative Bank, 1968 SCMR 804 and Binyameen v. Choudhary Hakim, 1996 SCMR 336, it is
held that "no party can be allowed to lead evidence on a fact which have not specifically pleaded
nor can any evidence be looked into which is outside the scope of pleading."
14. In case of Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 the evidence led
outside the pleadings was not approved and the Hon'ble Supreme Court observed as under: ---
"The ratio of the afore -referred cases appears to be that a party is not permitted to deviate
from his or her pleadings nor can a Court set up a di fferent plea for a party and decide the suit on
that basis, muchless at the appellate stage."
15. The other aspect of the matter on the basis whereof the evidence and statement of the
appellant with regard to Issue No.3 are discarded, are that according to PW -1 and PW -3 the
appellant came to know about the sale in the first week of June, 2008 without mentioning the
particular date, time and place, whilst the appellant stated that on 4th June, 2008 he gain
knowledge about the sale from Patwari and Qanoongo in Tehsil office on 4th June, 2008 at 8:00
a.m. but he has not asserted the immediate demand in Tehsil neither produce the said Patwari and
Qanoongo as a witness to prove the factum of gaining knowledge and making of first Talbs i.e.
Talb-e-Muwasibat. PW -1 however stated that on same date i.e. 4th June, 2008 he along with
appellant went to the house of the respondent No.2 at Pashtoonabad Quetta, where the appellant
asserted his right of pre -emption, whereas PW -3 and appellant stated that on 4th June, 2008 he
along with the appellant and above witnesses went to the house of the respondent No.2, but he
was not present at his home and on the next day the appellant went there and asserted his right. It
is also noted that the witnesses produced by the appellant stated that the house of respondent
No.2 was situated at Pashtoonabad, whereas the appellant stated that the house of respondent
No.2 was at Kasi Road Shaldara, Quetta. The evidence and statement of the appellant is not only
divergent from the pleadings, but there are inter se contradiction with regard to gaining
knowledge and performance of required Talbs. The cumulative effects of the above evidence
produced by the appellant is that he has failed to establish performance of the required Talbs in
accordanc e with law and findings of the trial court in respect of Issue No.3 does not call for any
interference by this Court.
16. The appellant has failed to prove the required Talbs in accordance with law. Therefore, it
is concluded that the findings recorded b y the trial court in the impugned judgment and decree
are well versed, based on sound reasoning, as such, same are devoid of any interference by us.
In view of the above discussion, the appeal has no force, which is accordingly dismissed
leaving the par ties to bear their own costs.
Decree sheet be drawn.
AG/85/Bal. Appeal 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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