Hazrat Jamal Vs Muhammad Ishaq etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-LJL-QAZA), SWAT

(Judicial Department)

C.R. No. 332-M/2015

HAZRAT JAMAl.,

VS

MUHAMMA I) ISHAQ AN I) OTHERS.

JUDGMENT

Date of hearing: 29-06-2016

/ '-", Petitioners:- (Haz)-at A-Imal hi' Mr.Abdul Ha/in?

/ I ' Khan Advocate.

\ , - J'' Respondents:- (Mu/wm,nod Isha(7& others) by M/S.

Ibadul/ah Abid and Zia ur Rehrnan Advocates.

MUHAMMAD YOIJNIS TflAHEEM, J.- Through the instant revision petition under section 115 Civil Procedure Code of 1909 petitioner has challenged the judgment and decree of learned appellate Court vidc which the judgment and decree passed by the learned Civil Judgc-Ifflaqa Qazi Chakdara dated 25.4.2015 was maintained by dismissing appeal of petitioner vide judgment and decree dated 2-09-201 5.

ANI 2. Brief Iuicts of the case are that respondent No. I/plaintiff filed a stilt br posSession through

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prc-ernption on the basis of superior rights of

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pre-emption after fuiJilling the requisite demands as

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aUeged in the plaint.

3.The suit was entrusted to the learned Civil Judge-Il Ilaqa Qazi Chakdara District lower Dir who summoned the vendees/dcfendants. On appearance they contested the suit and submitted their written

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statements wherein they raised factual as well as legal pleas by totally negating claim and allegations made by the plaintiff in his plaint with regard to Talabs as well as superior rights etc. In the light of divergent pleading of parties, the learned trial Court framed issues on 27.4.20 13 which are re-produced as below.

Issues.

I. Whether the plaintiff has got a cause of action?

Whether the plaintiff has fulfilled (he obligation of Tatabs u/s 13 of Pre-emption Act, 1987?

Whether plaintiff has superior right of pre-emption to (he suit property?

Whether the alleged sale consideration by vendee/defendant, has been fixed in good faith f

and actually paid, if no(, what is the market value of (lie suit property.

Whether the suit of the plaintiff is within time?

/ - \ 6 Whether (kfendut No 1 hs in ide Impiovinients in (he suit property and he is entitled for its Compensation in case of decree?

Whether plaintiff has waived his right of pre-emption being prior knowledge of sale?

Whether plaintiff is entitled to the decree as prayed for?

Relief.

Thereafter, both the parties produced their respective evidence. After conclusion of trial and hearing algurnents, the learned trial Court (leCreed the pre-emption Suit vide its judgment & decree dated 54'OlS

The vendee/petitioner being aggrieved from the judgment passed by the learned trial CourtlCivil Judge,

filed a regular Civil appeal before the Appellate Court learned Additional District Judge Dir lower at Chakdara. During the pendency of the appeal an application was submitted by the appellantl vendee for permission to produce Additional evidence and after . -N hearing both application as well as appeal the learned

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-'V\Appel1ate Court dismissed the said appeal vide his

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judgment dated 28.09.2015 impugned herein. The petitioner being dissatisfied from the Judgment and decree of both the Courts below has filed the instant Civil Revision on the ground inter-alia mentioned therein.

6.Learned counsel for the petitioner argued that the judgments of Courts below are the result of wrong exercise of jurisdiction, mis-reading and non-reading of evidence and is the result of wrong appreciation of the law on the subject. Learned counsel further argued that the learned trial Court while giving findings on issue regarding Talabs i.e issue No.2, in respect of superior rights i.e issue No.3 and market value i.e issue No.4

have fallen into illegality by ignoring the glaring contradictions in evidence produced by pre-emptor. lie added that alleged notice of Talab-i-Ishhad was not delivered to the vendec in person and service upon his son could not be said as lawful. Moreover, the pre- emptor is not a contiguous owner to the suit house as .J there lies a vacant strip in between the suit house and house owned by plaintiff/respondent No.1 and if • respondent pre-emptor is proved to be a contiguous owner then upon proving Talabs was entitled only to half share of the suit house and instead entire house has been decreed in fitvour of the plaintiff/respondent No.1 and this material fact/legal aspect escaped the judicial notice of learned trial Court as well as Appellate Court. He also argued that during pendency of appeal the present petitioner/appellant has filed an application for pci-mission to produce additional evidence to prove the vacant strip still owned by respondent No.3 so under the law the appellate Court was hound to decide it earlier before passing judgment

on appeal but despite of hearing argwnenls over the same had not given any finding on the said application rather left it un-decided which is a material irregularity and on this ground alone case be remanded as the vendor/respondent No.3 has not sold out an area measuring 3 feet in width Stretching in length to the extent of his house and is still his ownership so be given oppoitunity to prove abovc fact Lastly learned counsel for p(tltlonLr priyed that by acptiiig thL petition this case may kindly be remanded back or the suit of the plaintiff may be dismissed as he has neither fulfilled the requisite demands nor has proved his contiguity.

7.On the other lmund learned counsel for the respondent No.1 argued that the judgments and decrees passed by the learned two Courts below are correct and were passed after proper appreciation of evidence and law; there are no contradictions whatsoever in the evidence regarding the Talabs as well as his superior rights. The application for permission to produce

additional evidence was heard so sunk with the appeal.

1'hough learned Appellate Court had not given specific finding but it means refusal for permission to produce additional evidence. Learned counsel titrther argued that neither vacant strip allegedly owned by respondents No.3 is lying in between his house and the suit house nor this fact was asserted in the written statement so the application for permission to produce additional evidence is after-thought and was raised to fill up Aj lacunae, therefore, the same was rightly not considered by the appellate Court. Thus both the judgments and decrees of the learned Court below are correct and in accordance with law. He lastly prayed that respondent No. I is co-sharer so entire house was correctly decreed being superior in Status so the instant petition may kindly be dismissed.

8.Arguments of learned counsel for the parties heard and available record penised with their valuable assistance.

The questions for determination before this Court arc firstly as to whether the requisite demands have been proved as alleged in the plaint particularly delivery of notice Talab-i-lshhad upon the vendee.

Secondly whether both the parties are contiguous owners or there is lying a strip in between house of

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' pre-emptor and suit house and whether the learned Courts below had taken into consideration the provisions of law while decreeing entire Suit house when petitioner is also contiguous owner and thirdly market value of the Suit house.

Firstly to determine the question regarding proof of alleged Talabs I examined the entire record.

From perusal of the record it reveals that respondent No.1/plaintili alleged in his plaint that lie. on 8.1 .20 13 Monday when was sitting in his 'I3aithak' alongwith Muhammad Yousaf son of Muhammad Amin Badshah and Said Aleem son of Said Afzal at 4.30 PM at Asar Wela time his brother Muhammad Iqbal came and

informed him about the sale of the suit house. He upon this above said information declared his intention to pre-enipi the sale of the suit house in the above said sitting. 'l'hereatler on 12.1 .2013 he sent nOtiCe (>1 Talab- .\ i-lslihad alongwith Al) card to the vendee! respondent

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i£ r '• No.1 through registered post envelope and for making .'. .-; y Talab-c-Khusumat instituted the Present suit on Ii. Plaintiff/respondent No.1 appeared in the witness box as PW1 who narrated the same facts as alleged in his plaint as well as in his statement on oath along with plaint and during examination in chief' he stated about first demand as discussed above and sending of notice 'I'alab-i-Ishhad received by the vendee, same Notice Talab-i-shhad is lying on the record as EXP\V1/l He also produced his ownership deed dated 27.9.1995. According to which he purchased his house from the owner namely Said Maffl respondent No.2 vide sale receipt flXPWI/4. lie

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reiterated that the suit house has been purchased by the vendee at the rate of Rs.300,000/-

12.The same witness PWI was subjected to cross examination by ihe vendee but nothing came favourable to the delindant/vendcc with regard to notice Talab-i-ishhad XPWlf I. From perusal of said notice it divulges that it was scribed by ha ij!lah Abid 1 Advote and Wtne5S(cl hy \1tih iii \ kh r son of Ghuiain v1uharnniad, I lazrat Gui son of Muhammad • Azecin, Muhammad 1iiaq Khan sun of Arab Shah, Mehniood Khan son of Azim Khan and is signed by all above referred witnesses as well as scribe. Amongs them pre-emptor as PW- 1, Muhammad Akbar as PW-5 and Hazrat Gui appeared as PW-7. The said notice EXPW1/i was sent to the vendee through registered post envelope aiongwith A.D.Card vide postal receipt.

No.11 34 'is 1XPW 1/2. Similarly A.D card is placed on record as; XPWl/3. From perusal of A.D card, it transpires that it was delivered to the petitioner on 12.1 .2013 through his son Muhammad Kamal who put

his signature on it. It is pertinent to mention that his son Muhammad Kamal is also special attorney for him in the instant case.

13.During cross examination the pre-emptor admitted that towards north of the suit house is situated • adjacent the house of vendee, however during his ii l - \staternent he did not disclose and produce any evidence with reg6u ii to the 'illcged sile pi ice of the suit house >' as Rs.300,000/-(three lace).

14.Similarly Muhammad Iqbal informer appeared as PW2 in the witness box who stated that his statement submitted alongwith the plaint lDW2/1 is correct.

During cross examination he deposed that he came to the 'Baithak' of plaintiff at 4.30 PM on the date as discussed above where Said Aleem (PW4) and Muhammad Yousaf (PW3) were 1)resenl and be in their presence informed the platntiff/pre-emptor about the sale of suit house and he promptly made 'Ian-e-Shufa'.

During cross examination this witness admitted that in

the north of suit house is contiguous house of I-[azrat Jamal vendee. The relevant portion is reproduced as:

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1 5. The same witness (PW2) was not cross exarn!ned that there is lying a strip in between the house olpre-emptor and the suit house as discussed above and . was not sold by vendor/respondent No.3 or is still the ownership of Jehan Bakhat. Moreover, this witness neither in his statement on oath nor during cross examination stated about the alleged sale price of the suit house as Rs.300,000/-. Ilowevei-, during cross examination he reiterated that other two witnesses Said Aleem (PW4) and Muhammad Yousaf(PW3) were also present in the same sitting in the '&:ithak'.

16.Muhammad Yousaf appeared as PW3 who stated in his statement on oath submitted alongwith N plaint EXPW3/1 the same facts but did not mention the sale price of the suit house as Rs.300,000/- This witness was cross examined at length regarding Talabs

but nothing came favourable to the vendee. However, he admitted that the house of petitioner is contiguous on the north side of the suit house. The relevant portion of cross-examination is reproduced as below:

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17.Said Aleem appeared in the witness box as ) J PW4 who did not utter a single word about the sale price as alleged by the plaintiff and admitted the contiguity of vendee toward north of suit house. The relevant portion of cross-examination is reproduced below:

18.From perusal of entire evidence with regard to Talab-i-Muwathibat and Talah-j- Ishhad there are no contradictions and plaintiff/respondent No. 1 succeeded abundantly to prove both Talabs, so the learned trial Court had correctly decided the issue No.2 in favour of pre-emptor after proper appreciation of evidence and

law. The arguments advanced by the learned counsel for the petitioner that the scribe of the notice Talah-i-lshhad Mr.Abadullah Abid Advocate has not been produced as witness to prove scribing of it is not a valid argument as suggesnon was put to any witnesses of plaintiff that it was not scribed by Mr.Abadullah Ahid. Similarly the

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arguments about deliveiy of said notice through /sL Ji\

Muhammad Kamal is not in accordance with law and is also not satisfactory in the circumstances of the case and the law referred by the learned counsel in ii1::nawar !Jus.cajn case cited as 2013 SCMR 721 could not press into service as in the referred case the vendee were two real brothers and pre-emptor served notice only on one of the vendee and no effort was made to effect service on the other vendee in person, so the l-lo!I'able Supreme Court of Pakistan held that such service of notice 1alab-i-lshhad was not a lawfiil service, however in the instant case the facts and circumstances are altogether A—I\ different. In the instant case there is only one vendee i.e l-lazrat Jamal who received registered post through his

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real son Muhammad Kamal. The present respondent No.1/pic-emptor sent notice to the vendee upon his undenied proper address and post man delivered the notice at his i1ouse, who appeared as PW9 and stated the (leliVery 01 notce in the manner like below:

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i f IJi The above portion of statement of was not cross examined and remained Un- impeached.

19.From the statement of postman and the perusal of A.!) card FXPWI/3 it divulges that it was signed by Muhammad Karnal who is son of vendee and is also special attorney for vendee/respondnt Not. From comparison of his signature on special power allorney and the A.D card lXPWl/3 it appears that both the signaflires are similar and identical. The addressee /petitioner No. I did not produce his son Muhammad

Kamal in rebuttal to provide proof that he had not received the said registered post envelope or service of said notice was effected on wrong address. So strong presumption existed that notice through registered post -; 7---. was sent on proper address and received by his son. As both are residing in the same house so it is unbelievable ) that his son had not appraised or inform his fathe about the said notice The law envisaged u/s 26 of General Clause Act I)resuroes that the post is served if is sent on proper address which prcsumption is rebuttable and vendee had not produced any convincing and reliable evidence in rebuttal. In this respect reliance is placed on the Judgment of FTon'able Supreme Court in case cited as PU) 1989 Sc 503.

20.Thus in view of above discussion both the learned Courts below had rightly held that it was delivered to the vendee at his proper address and received by his son Muhammad Kamal who is adult male member of the finiily residing with his father. So case law referred by the learned counsel for petitioner

cited as 2013 SCMR 721 could not he pressed in to service as the circumstances of the instant case and referred case are altogether different. Similar rule for strong presumption to a not ice served through registered post on proper address has been enunciated in the =- Judgment of this Courtin case title as Var Muhammad 1(han ... vcrsiis.... Bashir Aamir cited as NJ) 2003 179.The relevant rule enunciated is reproduced as below.

Under the provisions of section 26 of the West Pakistan Cetieral Clauses Act,1956 once a iiotice is sent through registered post with a proper address of the vendec defendant (hcrton (lieu there is a Strong statutory presumption that the service has l>eeii effected and (he same has reached the addressee. The statutory presumption thus attached to the suine would not require the evidence of the delivery postman or the booking clerk of the post office concerned and only duly stamped receipt issued by \i post office authorities and the Acknowletlgcrneuit Card; if any,

received hack wii U Id he su Ificien toof that (lIe notice Was (lIlly

SelVe(l 111)011 the Ven(lee (ICICI)CIn LII.

Ihe second question for determination bldie this Conit is with regard to issue. No.3 regarding superior tight ol pre-eInptioII SiUIIC is reproduced is as below;

Whether 1)ItIiIIttff has got 5tlt)CfjOF right of I1rC(flL 11)1)?

EotIi the learned Courts below had decided

(lie above i SSIIC ill levour of pt at nt i Il/pre-eniptor at td Ittid decreed the entire suit lonise in lavotir cii respondert t l"lo. I (lespi Ic the hwt tlt:ct the pie-eta piur nra I vii dee are con t igitoris owners as diSC iissed tbove so both the Courts below have not coitsiclerecl the evidence on record tinti the law. Moreover, the pre-empI or and vet idee had pui'cl cased ii cci r respective houses horn one Said Ma Ii k ttncl It is son J ehan Bttk hat nod Jelcait flaklcat purchased 111C sutt house trout his v U fttdter and allerwtirtl sold 111C. saute to the petitioner So 1)0th the patties have same status but. the same legal

aspect escaped the Judicial Notice of both the learned Courts below in view of section 20 of Khyher Pakhtunkhwa Pre-einplion Act 1987 and had failed to comprehend the relevant law. The provision of section 20 of Kliybcr Pakhtunkliwa Pre-eniption Act 1987 is reproduced for comprehension as below:

Section 20

.. c.'-.. "Where the Pre-emptor and vendee equally entitled: where the

- pre-emptor and the vendee fall within the same class of f..'

•i prccinptors and have equni right of '•:- pre-emption, the property shall be share(l by them equally".

23.So from the evidence on record it is abundantly proved that both the Parties are contiguous owners to the suit house thus the judgments and decrees passed by the Court below to the extent are set aside and are modified .Resultantly the suit house is divided into two equal shares in between the pre-emptor and vendee in view of ibid law.

In this respect wisdom is derived from the judgment of the Hon'ablc Supreme Court in case titled as Abdul llakeem &others..Vcrsus ... Klialid Wazir,

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cited as 2004 SCMR 1770.'l'he relevant principle enunciated by their Lordship is reproduced as below:

"Both the parties are co-sharer in the property belonging to the same class of pre-emptor, hence arc entitled to share in the Property equally"

24.So far as the arguments of learned counsel 1r petitioner regarding remanding of the case on the - ...• ground that no finding was given by the learned

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Appellate Court befire deciding appeal regarding his application tbr production of additional evidence to .' / prove above discussed strip lying in between the

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house of pre-emptor and the suit house is concerned.

Suffice it to say that the petitioner/defendant had not alleged the same fact in his written statement so is not permiued to prove a fact which has not been pleaded tinder the law while the factum of contiguity of both • the parties is adn iitted one. So in the I iglit of above discussed position it would increase the agonies of the parties if case is remanded only on the ground that no specilic linding was recorded by the learned Appellate • ourt, thus the arguments in this respect as also repelled

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25.The 3rd question for determination is about the sale price or market value of the suit house . in this respect the learned trial Court framed issue No.4.The learned trial Court had decided issue No.4 upon its own analogy by giving some criteria on the basis of alleged admission made by the vendee that the price of adjacent property is Rs.260,263 per sq feet and 'L 'i s further assumed and calculated the area of suit house as 11 / 1700 sq feet and deteiminecl the market price according to the above mentioned criteria as Rs.500,000/- ( five lace) of the suit house The learned Appellate Court while reappraising the evidence on record had retied upon the findings of learned trial court in this respect and maintained the same finding about the market value of the suit house which is quite contrary to law.

26.In the instant case the pre-emptor has alleged in his plaint and in his statement on oath that the \J suit house has been purchased by vendee in lieu of Rs.300,000/-( three lace) but to substantiate his plea

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he has not produced any evidence in this regard except his bald statement.

27.Conversely the vendee while submitting written statement raised a specific plea in his written statement that he has purchased the suit house in lieu of Rs. I 000,000/-(ten lace) in iwesence of witnesses and in this respect he produced sale deed place on record as EXDW4/2.The same transaction has been witnessed by ...ii Said Muhammad who appeared as DW2,13ahadarzeh, • 0 ........Jehan l3akJat vendor (DW3), Rahat Ian, Ilaji / Muhammad Tahir and scribe

Ashrar Au. In this

respect vendee appeared as DW4 who in his statement produced and testified sale deed dated 29.12.2012 as EXDW4/2. Same DW4 during cross examination was put a suggestion that the sale price of the suit house had been paid as Rs.300,000/- which was answered in negative and he volunteered that he is ready to purchase \ the land Of plaintiff to a sale consideration of Rs. I500000/-(Fifteen lac). So the learned trial Court has not considered the documentary proor provided by the

vendee in juxta position to the fact that the plaintiff has failed to substantiate evidence for proving the sale price as Rs.300,000/-(three lace) .On the other hand the vendee had produced documentary proof about sale deed lX.DW4/2 and marginal witnesses to the said sale deed, therefore, the learned trial Court has erred in 1 tw and fact by dueimining the slepiie s ) Rs.SOO,OOO/ ( five lace). Similarly the learned tppate Court also over looked the above factual and legal position while reappraising evidence with regard to the market value of the suit house thus both the Courts had not properly appreciated the evidence to this extent thus interference of this Court is needed, hence lindings on issued No.'l could not be kept sustained, so findings upon same issue are set aside and the judgment and decree to this extent is moditied. Resultantly, the market value of the suit house is determined as lace) according to the sale deed

1XDW4/2 resultantly half of suit house is decreed in Rs.l000,00Q'(ten

favour of respondent No. l/pre-emptor in lieu of half' of

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the sale price i.e Rs.500000/-.So plaintiff/pre-emptor if has not deposited the above determined sale price, he is directed to deposit the same within one month after the receipt of the copy of this judgment.

28.Thus in view of the above discussion, this revision petition is partially allowed in the above terms so the Judgments and decrees of both the Courts below are modified with no order as to costs.

Announced.

Dt: 30,6.2016,

JUDGE

Certified to- true copy

EXJMJ NCR

c'I.wr Hp iv,t1 MIgor/O,n.uI_aa.i One, Sw3t UI ut UJIoUI..g.

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