Bakht Zada vs Saifur etc

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH` (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 367-M/2014

JUDGMENT

Date of hearing: 07.4.2015.

Date of announcement: 10.4.2015.

Petitioner: (Bakht Zada) by Mr. Akhtar Munir, Advocate

Respondents: (Saifur and 1 other) by Muhammad Iqbal Advocate.

HAIDER ALI KHAN, J.- Petitioner Bakht Zada has impugned the judgment and decree dated 27.6.2014 of the learned Additional District Judge- VI/ Izafi Zilla Qazi, Swat whereby appeal of the petitioner preferred against the judgment and decree dated 02.1.2014 of the learned Civil Judge-III/Illaqa Qazi, Swat has been dismissed.

2.Facts in brief giving rise to the instant revision petition are that the petitioner/plaintiff filed a suit against the respondents/defendants for possession through pre-emption in respect of the Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

landed property fully detailed in heading of the plaint to the effect that respondent No.1 purchased the pre-empted land, consisting 4 Kanal and 9 Marla, from respondent No.2 through a secret sale deed without giving any notice to him in accordance with provisions of the Pre-emption Act. According to contents of the plaint, the petitioner got information regarding sale of the pre-empted land in his Betak at Kandao Charbagh on 09.12.2011 at 10:00 a.m through Sajjad Muhammad (PW-5) son of Taj Muhammad Khan and the petitioner then and there performed Talab-e-Muathibat by declaring his intention to pre-empt the suit land; that on 10.12.2011 the petitioner alongwith witnesses Musawat Khan (PW-7) and Zahir Shah (PW-8) approached respondent No.1 and he was asked to take Rs.900,000/-, being market price of the pre- empted land per stance of the pre-emptor, and hand over possession thereof to the petitioner/pre-emptor Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

but respondent No.1 denied; that on 12.12.2011 the petitioner posted notice Talab-e-Ishhad through registered A.D in presence of above named witnesses and lastly the petitioner averred that he has the superior rights of pre-emption being co- sharer in Kasra Nos. 2896, 2897 and 2899 wherein the pre-empted land falls besides he is contiguous owner thereof as well being owner of Khasra Nos.

2893, 2895 and 2900 situated adjacent to the pre- empted land.

3.Respondents/defendants submitted their joint written statement against plaint of the petitioner/plaintiff and refuted his claim by raising several legal and factual objections. They averred in their written statement that the petitioner had already been informed to purchase the pre-empted land if needed to but he denied and thus waived his right of pre-emption under section 15 of the Pre-emption Act. The respondents further averred the respondent Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

No.1 purchased the pre-empted land from respondent No.2 against sale consideration of Rs.24,00,000/- through deed No.A290 dated 25.10.2011 and the market price shown by the petitioner i.e Rs.9,00,000/- is incorrect and based on misrepresentation. It was also averred that the petitioner is neither a contiguous owner to the pre- empted land nor is he co-sharer in any common path or water channel of the pre-empted land, hence suit of the petitioner is liable to be dismissed being baseless.

4.Pleadings of the parties were altogether divergent, hence the trial Court framed nine issues apart from relief and called for evidence of the parties thereon. Petitioner recorded his own statement as PW-6 and produced other eight PWs in support of his claim. In rebuttal, the respondents/defendants examined their attorney Gulbar as DW-1 (nephew of the respondent No.1) Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

and produced DW-2 (son-in-law of respondent No.1) and DW-3 (brother of respondent No.2) in support of their stance. After recording evidence and hearing the arguments, the trial Court dismissed suit of the petitioner vide judgment and decree dated 02.1.2014. Feeling aggrieved, the petitioner assailed the judgment in appeal which too was dismissed by the learned appellate Court vide judgment and decree dated 27.6.2014. Hence, the instant revision petition.

5.Arguments heard and record perused.

6.Perusal of the record in light of the argument advanced by the parties has revealed that out of nine issues framed by the learned trial Court nearly all are decided in favour of the petitioner excepting issue on Talab-e-Muathibat which has been expressly decided against the petitioner. The Aks-Shajra Kishtwar produced as Ex.PW-1/2 shows that petitioner is contiguous owner in Khasra Nos.

Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

2900, 2901, 2893, 2895 and according to the admission of the DW-1 he is also a co-sharer. On the other hand the respondent No.1 is totally stranger to the area and nothing as to whether he is a native is available in the pleadings. The learned trial Court while deciding Talab-e-Muathibat has been persuaded by ignorable and immaterial omissions and contradictions. All the plaintiff’s witnesses including the petitioner on the said issue very clearly, methodically and meticulously established the Talab-e-Muathibat in terms of time, place, mode and manner. Any omission in sequence of events preceding or following Talab-e-Muathibat on the part of the said witnesses is not fatal to the case of the petitioner, therefore, the same has been proved and established in accordance with law. The evidence in a civil case and especially in a case like present one cannot be read so as to exclude entire evidence from consideration against the Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]

plaintiff/petitioner on the basis of slightest omissions or contradictions. In that regard the reliance is placed on PLD 2003 Peshawar 179 which is applicable on all four to the facts of the present case.

7.In view of the above, the judgment and decree of the learned trial Court dated 02.1.2014 and that of the learned appellate Court dated 27.6.2014 are set aside and the suit of the petitioner/plaintiff is decreed. However, the market value alleged by the petitioner as Rs.900,000/- is not accepted and the sale price of the pre-empted land i.e 24,00,000/- as mentioned in Ex.Dw-1/3 is taken to be the actual sale/market price. The petitioner is directed to deposit the same in the trial Court within two months.

Announced.

Dt: 10.4.2015. JUDGE

Tajamul Khan/PS* [C.R No. 367-M/2014 Bakht Zada Vs. Saifur Rehman & another]