Muzzamil Khan etc vs Abdul Ghaffar etc

JUDGMENT SHEET

PESHAWAR HIGH COURT D.I.KHAN BENCH

JUDICIAL DEPARTMENT

C.R No. 126-D of 2012

JUDGMENT

Date of hearing ________17/02/2015_____________ Appellant / petitioner (Muzamil Khan etc) by Amir Muhammad Khan Baloch advocate

Respondent(Abdul Ghaffar etc) by Malik Muhammad Asad advocate

MOHAMMAD GHAZANFAR KHAN J.- Through the instant civil revision under section 115 of the Code of Civil Procedure, the petitioners have impugned the judgment and decree dated 10.12.2012, rendered by learned Additional District Judge-IV, D.I.Khan, whereby the appeal filed against the judgment and decree dated 10.5.2011 passed by learned Civil Judge-VII, D.I.Khan, was dismissed.

2.The brief facts giving rise to the instant revision petition are that predecessor in interest of respondents No.1 to 7, filed a suit against the

petitioners and respondents No.8 to 10 for possession through pre-emption in respect of land measuring 29 kanals 10 marlas situated in Mauza Lunda Tehsil and District D.I.Khan (fully detailed in the heading of the plaint). The predecessor-in- interest of respondents No.1 to 7 alleged that he got knowledge of sale on 02.1.2004 at 10.00 a.m.

at his Baitak through one Inayatullah and immediately declared his intention to pre-empt the sale, followed by issuance of notice Talb-e-Ishhad.

3.The respondents (now petitioners) contested the suit by submitting their written statement. The learned trial court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce in support of their respective claims. After hearing the arguments of learned counsel for the parties, the learned Civil Judge-V, D.I.Khan, decreed the suit of predecessor-in- interest of respondents No.1 to 7 vide judgment and decree dated 10.5.2011.

4.Dissatisfied with the judgment and decree dated 10.5.2011, the petitioners filed an

appeal, which was dismissed by the learned Additional Judge-V, D.I.Khan dated 10.2.2012, hence the instant revision petition.

5.I have heard the arguments of learned counsel for parties and perused the record.

6.The record transpires that the plaint of respondent does not disclose the date of preempted transaction, which is imperative for determination of limitation especially regarding Talb-e-Khasumat.

Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 provides limitation, firstly 120 days from the date of registration of sale deed; secondly from the date of attestation of mutation, if the sale is made otherwise than through the registered sale deed; thirdly on which date the vendee takes physical possession of the property if the sale is made otherwise than through the registered sale deed or the mutation; or of knowledge by the pre- emptor, if the sale is not covered under paragraph

(a)or paragraph (b) or paragraph (c).

7.In this case, the respondent has preempted oral sale by the vendor and that too on the basis of general power of attorney. It is

pertinent to mention here that power of attorney has been referred by respondent in Para 1 of his plaint, however, he has deliberately not mentioned the date of registration of the said power of attorney, which is available on file as Ex:PW1/1 and was attested on 27.12.2003. On the basis of this power of attorney an agreement deed was entered into between the parties on 22.9.2003, however, this fact is also not mentioned in the plaint. As evident from the perusal of plaint that plaintiff/respondent has categorically stated in Para 3 of his plaint that;

But astonishingly that date of transaction has again not been mentioned by the respondent- plaintiff for the obvious reason that respondent- plaintiff was conscious of the fact that his claim was barred by time.

8.So far as performance of Talabs is concerned there are material contradictions in the statements of PWs regarding performance of

Talabs. As informer Inayatullah son of Haji Ellahi Bakhsh appeared as PW-4, in his cross examination has stated that;

But he has contradicted by PW-5 Abdul Ghaffar son of Mohammad Hassan by saying that;

While going through statements of both these witnesses regarding Talb-e-Muwathibat, one can easily conclude that one of them is telling lie. As PW Inayatullah while deposing regarding notice Talb-e-Ishhad has stated that;

Whereas petition writer appeared as PW-7 stated in his cross examination that;

This assertion of PW-7 clearly indicates that the very scribe of notice Talb-e-Ishhad is doubtful as there is nothing in this regard in black and white

that whether any mutation was attested in favour of present petitioner or not.

9.In the light of above facts and

circumstances it is clearly proved on the record that respondent has failed to prove the date of sale and has also failed to prove that when the petitioners have taken possession over the suit property. His evidence regarding Talabs is full of contradiction, which cannot be believed.

10.For the reasons given hereinabove, this revision petition is accepted, the impugned judgments and decrees of learned lower courts are set aside and the suit of the plaintiff/respondents stands dismissed.

ANNOUNCED JUDGE

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