Qazi Shaheen Iqbal vs Haji M. Sadiq

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

C.R No: 103 of 2011

JUDGMENT

Date of hearing......17.11.2014.......................................

Appellant(s)/Petitioner (s)...Qazi Shaheen Iqbal (In person and by Khursheed Khan Adv.)

Respondent (s)...Haji Muhammad Sadiq ( In person with Iftikhar Khan Jadoon Adv.)

QALANDAR ALI KHAN:-J: The present civil revision filed by Qazi Shaheen Iqbal, petitioner, impugns order dated 09.12.2010 of the learned Additional District Judge-III, Haripur, whereby the appeal filed by respondent, Haji Muhammad Sadiq, was accepted while cross objection filed by appellant was dismissed and judgment and decree dated 22.07.2010 passed by Civil Judge, Haripur was set aside and decree was granted in favour of the respondent/plaintiff.

2.In his petition, the petitioner prayed for acceptance of revision petition, setting aside judgment and decree of learned Additional District Judge-III, Haripur dated 09.12.2010 and restoration of judgment and decree of the Civil Judge, Haripur dated 22.07.2010.

3.The respondent/plaintiff had lodged suit for possession through preemption in respect of land measuring 9 1⁄2 Marlas out of land measuring 21 Kanals 4 Marlas bearing Khasras No.2218, 2219 and 2214 situated in village Changi Bandi Haripur.

The suit was resisted by the

petitioner/defendant on several grounds, including denial of preferential right of respondent/plaintiff, non fulfillment of requirements of “Talbs” and waiver of right of preemption by respondent/plaintiff. The parties adduced evidence in support of their respective cases and in the light of their evidence and arguments of their counsel, the suit was dismissed by the

learned Civil Judge, Haripur, vide his order dated 22.07.2010, as a consequence of his findings on issues NO.1 and 10 i.e. issues with regard to cause of action and entitlement of the plaintiff/respondent to the decree as prayed for. The learned Civil Judge, however, found rest of the issues including issue of superior right of preemption, estoppel, “Talbs” and waiver in favour of the plaintiff/respondent. The respondent/plaintiff preferred appeal while the petitioner/defendant preferred cross objection, which were disposed of through consolidated judgment of learned Additional District Judge-III, Haripur on 09.12.2010, whereby judgment and decree of learned Civil Judge, Haripur was set aside, while at the same time upholding the remaining findings of the learned Civil Judge, and decree as prayed for was granted in favour of the plaintiff/respondent. The appeal was accepted accordingly, whereas cross

objection of the petitioner/defendant was dismissed. It is against the said order that the petitioner/defendant has approached this Court through the present revision petition.

4.The learned counsel for the

petitioner/defendant assailed the impugned judgment and decree of learned Additional District Judge-III, Haripur dated 09.12.2010, mainly on the grounds of non fulfillment of the requirements of ”talbs”, sale and purchase by the

respondent/plaintiff in the khasra numbers in question and his failure to lodge suit for possession through preemption against the other sale transactions taking place in the same property, so as to block entry of strangers in the landed property, in accordance with spirit of preemption law.

5.Since both the learned Civil Judge and learned Additional District Judge- III, Haripur have recorded concurrent findings with regard to rest of the issues

including issue of fulfillment of requirement of ”talbs”, there is no need to re-open those issues. However, the question of effect of the transactions made by the respondent/plaintiff prior to and after the impugned sale transaction, together with his failure to move the Court of competent

jurisdiction for possession through preemption in respect of other sale transactions taking place in the same vicinity, figuring so prominently in the judgments of both the Courts below, cannot be so easily over looked.

Therefore, it would not be out of place to examine the impact of transactions made by the plaintiff/respondent and failure on his part to assail, by way of suit for preemption, the rest of the sale transaction taking place prior to and after the sale transactions in question.

6.As regards the other sale transactions in the suit property, the respondent/plaintiff explained that he had no knowledge about other sale transactions, and that two mutations, one in the year 2006 in favour of Rustam Khan and the other in the year 2009 in favour of Arif Hussain Shah were for the purpose of thoroughfare, whereas land was transferred in favour of Nazar Hussain Shah etc for the purpose of graveyard. It may, however, be pointed out that the said mutations are result of sale transaction between plaintiff/respondent and the aforementioned vendees and there is nothing on record to suggest otherwise.

The sale transactions by and in favour of the respondent/plaintiff may not be that fatal for his suit for preemption;

but when viewed in the light of admission on the part of the

respondent/plaintiff that he was approached by the petitioner/defendant to know about his intention to purchase the suit land, such transactions would assume significance and would certainly be fatal for the feeble right of preemption of the respondent/plaintiff;

and would cast aspersion on the intention of the respondent/plaintiff to purchase the land in question in preference to a stranger.

7.The conduct of the

respondent/plaintiff has also left much to be desired, as in his statement before the Court, he denied in the first place that the petitioner/defendant ever approached him to know about his intention to purchase the land and in the same breath he again said that the petitioner/defendant had asked about his intention one year before and again said that the petitioner/defendant had

asked him one year prior to the impugned mutation.

8.In view of such a conduct, the respondent/plaintiff was rightly held not entitled to the decree for possession through preemption by the learned Civil Judge, Haripur vide his judgment and decree dated 22.07.2010. In these circumstances, judgment and decree of the learned Additional District Judge-III, Haripur dated 09.12.2010 is not sustainable and ought to be set aside.

Consequently, the judgment of the learned Additional District Judge-III, Haripur is held to be based on non reading and mis-reading of the evidence. As a result, this revision petition is accepted and while setting aside the judgment and decree of learned Additional District Judge-III, Haripur dated 09.12.2010 the judgment of learned Civil Judge, Haripur dated

22.07.2010 is restored and suit of the respondent/plaintiff for possession through preemption stands dismissed.

Announced:

JUDGE