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Petitioner: JAN MUHAMMAD through Legal Heirs VS Respondent: NADEEM AKHTARHonorable Justice Mian Saqib NisarCh. Muhammad Rafique Warriach,Syed Muhammad Kaleem Ahamd Khurshid
2007 M L D 510
2007 M L D 510
[Lahore]
Before Mian Saqib Nisar, J
JAN MUHAMMAD through Legal Heirs and others---Appellants
Versus
NADEEM AKHTAR---Respondent
Regular Second Appeal No. 22 of 2002, heard on 30th November, 2006.
Punjab Pre-emption Act (IX of 1991)---
----S. 13---Talb-i-Muwathibat---Proof---Paragraph of plaint about performance of Talb-i-Muwathibat was illusive and vague---Pleadings were deficient with regard to the making of talbs---Alleged informer of sale in question was not examined by plaintiff in support of his case and no plausible explanation for such omission was available on record---Witnesses produced by plaintiff had not given the day, date and the time about making of talbs---Courts below, on account of such deficiency in evidence, found that Talb-i-Muwathibat was not proved in accordance with law---Plaintiff was unable to establish that such findings suffered from any defect of appraisal/appreciation of evidence---High Court declined interference in second appeal.
Anwar Ali v. Shah Nawaz and others PLD 1989 Karachi 246 distinguished.
Ch. Muhammad Rafique Warriach for Appellants.
Syed Muhammad Kaleem Ahamd Khurshid for Respondent.
Date of hearing: 30th November, 2006.
JUDGMENT
MIAN SAQIB NISAR, J.---Jan Muhammad, the predecessor -in-interest of the appellants, who is the pre-emptor in the matter, has lost his cause at both the forums below, on the issue of Talabs. There is a concurrent finding of facts recorded by the two Courts below, that he has failed to prove Talb-I-Muwathibat as also Talb-I -Ishhad.
2. Learned counsel for the appellants contends, that such finding is the result of misreading and non-reading of the evidence and also contrary to the law laid down by the Superior Courts of the country.
3. Heard. The sale in the present lis in favour of the respondent was made through a sale-deed No.1621, dated 27-10-1993. The plaintiff/appellant challenged the said sale by filing a suit for pre-emption on 2-12-1993, asserting his right of pre-emption on the basis of being co-sharer in the khata, as Shafi Khalit and Shafi Jar; further stating, that he learnt about the sale on 9-11-1993, when he made Talb-i-Muwathibat; it is stated in paragraph 4 of the plaint that
On account of the denial of making valid Talabs by the respondent, the learned Trial Court framed issue No.10; the appellant examined Ghulam Nabi as P.W. which statement was recorded on 22-1-1995, who in the examination-in-chief has stated, that the sale was made about 1 year 3 months ago and then particularly stated it to be 6 days after the sale that it was learnt by the appellant; Rehmat Ali/P.W.2 has not even given the day, date and time', when the sale was disclosed to the appellant. According to the case of the appellant, though not set out in the plaint but in his evidence, he learnt about the sale through Muhammad Farooq, but Muhammad Farooq has not been examined and no plausible explanation for this omission has been given. The two Courts below on account of the above quality of evidence, have held that the plaintiff fails to prove Talb-i-Muwathibat. Learned counsel for the appellant has not been able to establish, that such finding suffers from any defect or misreading or non-reading, rather it is a case of appraisal/appreciation of evidence, which cannot be interfered in the second appeal. My own consideration of the evidence also leads me to the conclusion, that the plaintiff/appellant's pleadings are very deficient with regard to the making of Talabs, as it is not stated in paragraph 4, that Muhammad Farooq was the informer and that Rehmat Ali and Ghulam Nabi were present when the sale was made, rather part of the paragraph, reproduced above, is very illusive and vague. Besides, the two witnesses produced by the appellant have not given the day, date and the time about the making of Talabs, and if the contradiction of P.W.1 is taken into account, which was made in the examination-in-chief itself, it demolishes the entire case of the appellants with regard to the making of Talb-i-Muwathibat. Obviously, when Talb-i-Muwathibat was not proved in accordance with law, there is no question about the proof of Talb-i-Ishhad, resultantly, the judgment reported as Anwar Ali v. Shah Nawaz and others (PLD 1989 Karachi 246), relied by the learned counsel for the appellants has no relevance to the case in hand.
In the light of above, this appeal has no merits and is hereby dismissed with costs throughout.
F.B./J-I/L Appeal dismissed.