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Petitioner: Haji NAUROZE KHAN VS Respondent: Malik RAZ MUHAMMAD And 2 OTHER
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title: Haji NAUROZE KHAN vs Malik RAZ MUHAMMAD And 2 OTHER Case No.: Regular First Appeal No.5 of 1998 Date of Judgment:1998-05-14 Reported As: 2006 CLC 144 Result: Appeal dismissed
JUDGMENT
JUDGMENT RAJA FAYYAZ AHMAD, J.--- This appeal under section 96, C.P.C. Has been preferred against judgment and decree dated 3-1-1998, passed by the Senior Civil Judge, Quetta whereby suit filed by the appellant for pre-emption has been dismissed, with the. Prayer to set aside the impugned decree and to decree the suit of the appellant/plaintiff with the costs. 2. Briefly, the stated facts of the case are that on 3-4-1997 the appellant instituted suit for possession through pre-emption of land situate at Mohal Chashma Baleli Mouza Baleli Tapa Baleli Tehsil and District Quetta against the respondents on the stated averments that the appellant/plaintiff is the owner of lands situate in Mohal and Mouza Chashma Baleli Tapa Baleli Tehsil Quetta as per Khatooni and Khewat No. 16/4, whereas; the respondent No. I sold his agricultural land bearing Khasras Nos.666, 623, 591, 554, 400, 662, 404, 666/645, 405, 668 and 402 situate in Mohal and Mouza Chashma Balch Tapa Baleli, Tehsil and District Quetta measuring 81 rods 30 poles in favour of the respondents Nos.2 and 3/defendants (vendees) against the consideration of Rs.40,00,000 on .3-3-1997, which property accordingly stands transferred in favour of the vendees vide mutation effected in the relevant Revenue Record. It was further averred in the plaint that the appellant recently came to know about such sale transaction, therefore, he immediately and without loss of any time performed the requisite Talbs i.e. Talb-e-Muawasibat and Talb-e-Ishhad in accordance with the requirements of law of pre-emption but to no avail. It is further case of the appellant that the respondents/vendees are strangers in the said Mohal who do not own any landed agricultural property in the afore said Mohal except the one purchased by them as afore mentioned. It was prayed that decree for possession through pre-emption of suit property mentioned hereinabove be passed in his favour against the receipt of the above quoted
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amount of sale transaction, with, the further prayer that the mutation of sale transaction attested in favour of the vendees on 3-3-1997 may be declared as illegal on receipt of the pre-emption amount and instead such mutation be directed to be entered in favour of the appellant. 3. It may be noted that initially the suit came up for hearing in the Court of Civil Judge-III, Quetta and was registered as Civil Suit No.26 of 1997 but subsequently, vide order, dated 7-7-1997 passed by the District Judge, Quetta the case file was transferred to the learned Senior Civil Judge, Quetta on the ground that another suit for pre-emption in respect of the subject-matter of the suit was also pending in the Court of Civil Judge-I, Quetta. In the instant matter the respondents moved application for transfer of the case, whereas; in the other suit similar application was filed and both the transfer applications were disposed of by learned District Judge vide his common order, dated 7-7-1997 whereby both the suits were transferred to the file of learned Senior Civil Judge, Quetta for disposal in accordance with law and thereupon the instant suit was registered as Civil Suit No. 124 of 1997. 4. Respondents Nos.2 and 3 (vendees) filed their joint written statement on 3-5-1997 in the trial Court wherein certain preliminary objections were taken besides contesting the suit on merits. On merits it has been averred in the written statement that the vendees did not purchase the suit- lands described in para. No.2 of the plaint rather out of these lands only eight acres of the land was purchased by them vide sale agreement, dated 20-8-1996 against consideration of Rs.2,90,08,500 at the rate of Rs. 60 per sq. Ft. Being the actual sale price of the, property at the relevant time. It was explained in the written statement that on the same date another sale-deed was executed by the vendor in favour of the vendees/respondents wherein the sale consideration of the land measuring eight acres was shown by the respondent No.1 (vendor) as Rs.40,00,000 who, however; vide a separate agreement acknowledged the receipt of the actual sale price of the transaction and the vendees did not insist for the actual price of the land to be incorporated in the sale-deed. Pursuant to the sale transaction as per averments contained in the written statement, possession of the sold property was delivered to them by the vendor i.e. Respondent No.1 and on coming into possession of such property they developed and levelled the property by incurring several lacs of rupees who as per their plan of establishing a housing scheme on such land constructed a building by incurring a huge investment. It was denied that the land in question was sold on 3-3-1997 and according to the case of the vendees the appellant/plaintiff was fully aware of the aforesaid sale transaction and the works carried out by them on such land but he never raised any objection to the same and by his conduct and waived his right, if any. It was also denied that the appellant has any right to pre-empt the land on the ground mentioned in the plaint.. The vendees in their written statement pointed out that the appellant and his other relatives have sold their own properties in the same Mohal and Monza to various strangers and many other land owners of the same Mohal have also sold their property to different persons and thus, the appellant in such view of the matter also is not entitled to claim the alleged right of pre-emption: It was specifically denied that the appellant made Talb-e-Mawasibat and Talb-e-Ishhad in the exercise of his stated right. Of pre- emption and moreover; it has been averred in the written statement that the appellant has no locus standi to institute the suit because he does not own any property contiguous or adjacent to the property in question and further it was contended that present market value of the suit property is not less than Rs.35,00,000 and that the appellant intends to exploit the situation and wants to black-mail vendees because the actual sale price was not shown in the sale-deed. Respondent No.1 vendor also filed his written statement in the trial Court wherein the suit has been contested on factual and legal grounds, identical to the same as contained in the written statement filed by the vendees/ defendants. 5. The appellant/plaintiff along with the suit filed an application under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Praying therein that the respondents be restrained from
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alienating, selling or changing the nature of the property till the disposal of the suit who by their rejoinders to the application contested the grant of ad interim relief prayed for by the appellant. The learned trial Court vide order, dated 4-4-1997 directed that status quo position in respect of the suit property to be maintained and finally by its order, dated 9-6-1997 confirmed the status quo order earlier granted by it and disposed of the application accordingly. The respondents being aggrieved of the ad interim order finally passed by the trial Court on 9-6-1997 preferred Civil Miscellaneous Appeal No. 13 of 1997 before this Court which was allowed by this Court vide order, dated 16-6-1997 and the impugned order was set aside on the grounds mentioned therein. The appellant being dissatisfied with the order passed by this Court on 16-6-1997 filed civil petition for leave to appeal No. 100/Q of 1997 before the Honourable Supreme Court and by consent such petition was converted into an appeal and the same was disposed of by the Honourable Supreme Court in the following terms:-- "That the respondents may continue to execute the development work on the land which respondents Nos.2 and 3 have purchased from respondent No.1 and which, according to Mr. Shakil Ahmed, learned Advocate Supreme Court for respondent No.3, comprises 32 rods at their own risk and costs subject to the result in the pending suit, but should not create interest of third parties." 6. The learned trial Court framed the following issues out of the pleadings of the parties:-- (1) Whether the suit of plaintiff is liable to be dismissed in view of L/O "C" "D" and "F"? (2) Whether proper court-fee has not been affixed on the plaint? (3) Whether defendant No.1 sold disputed land bearing Khasras Nos.666, 623, 591, 554, 400, 662, 404, 666/645, 405, 668, 402, situated Mohal Chashma Balch Mouza Balch Tehsil and District Quetta measuring 41 acres 81 rods 30 poles to the defendants Nos.2 and 3 for consideration of Rs.40,00,000'? (4) Whether plaintiff has performed Talbs as per law for pre-emption? (5) Whether plaintiff is entitled for possession of disputed land through right of pre-emption? (6) Whether the plaintiff is entitled for relief claimed? (7) Relief? 7. The appellant/plaintiff in support of his case examined five witnesses namely Fazalur Rehman's (P.W.1), Nabi Bakhsh, Halqa Patwari (P.W.2), Manzoor Ahmed (P.W.3), Syed Ibrahim Shah (P.W.4) and Haji Sahib Jan (P.W.S). Whereas; the appellant appeared as his own witness. Respondents/defendants did not produce any witness and one Muhammad Tahir son of Haji Abdul Karim got recorded his statement as attorney for the respondents Nos.2 and 3 (vendees), whereas; the respondent No. I vendor did not give statement before the trial Court and finally the learned trial Court i.e. Senior Civil Judge, Quetta vide judgment and decree, dated 3-1-1998 dismissed the suit of the appellant, impugned before this Court in the instant appeal. 8. Issue No.1 i.e. Whether the suit of the plaintiff is liable to be dismissed in view of L/O "C" "D" and "F"? Is based upon the preliminary objections raised in the written statement filed by the respondents which are respectively reproduced hereunder:-- "Preliminary objection "C" that the suit is barred by the principles of acquiescence, estoppel and waiver, therefore, the same is liable to be dismissed. Preliminary objection "D" that the alleged claim of the plaintiff is violative of the principles of Mohammaden Law, therefore, the suit filed by him is legally not competent, as such liable to be dismissed. Preliminary objection "F" the verification is not in accordance with the provisions of C.P.C., thus, the plaint being not properly verified is liable to be dismissed." Issue No.1 comprises of the above mentioned preliminary objections and the learned trial Court while disposing of Issue No.1 resolved the objection "C" in negative, whereas; in respect of objection "D" it was observed that the same as pertains to the merits of the case, therefore, to be disposed of
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along with the other issues struck on merits and it appears from the impugned judgment that the same was resolved in affirmative and whereas; objection "F" was decided in negative. The learned trial Court resolved Issue No.2 pertaining to the court-fee in negative, Issue No.3 resolved in the terms that only eight acres of suit-land was purchased against consideration amount of Rs.Forty lacs, and the Issues Nos.4 and 5 have been decided against the appellant/plaintiff as a consequence whereof the Issue No.6 also decided in negative and the suit consequently has been dismissed. 9. (P.W.1) Fazalur Rehman's deposed about Talb-e-Mawasibat and Talb-e-Ishhad. According to him the parties are known to him and stated that defendant No.2 (Muhammad Younus) is resident of Karachi, whereas; defendant No.3 (Sharaf-ud-Din) is resident of Chaman. He further deposed that he has seen the suit property which is situate at Chaman Road near to Air Port Police Station, whereas; the property owned by the plaintiff is situate in Sheikhmanda, Mohal, adjacent to the suit property. He further stated that the suit property is covered under Khasra No.400, whereas; the land owned by the plaintiff is under Khasra No.401. Narrating about the transaction he stated that the suit property was sold by the defendant No. 1, about 5/6 months back to the defendants Nos.2 and 3 (Muhammad Younus and Sharaf-ud-Din) and about such sale transaction the plaintiff came to know about 10115 days back in Tehsil who thereupon; obtained copies of the mutations and thus, narrating about the Talb-e-Mawasibat made by the plaintiff, the witness stated that as the plaintiff carne to know about the sale transaction of the suit-land declared/claimed that he has a right of pre-emption on the suit-land and thereafter according to the witness they both visited the suit property who further stated that he, Haji Nauroz (plaintiff) and Haji Hassan visited on to the suit property where plaintiff claimed to be having his right of pre-emption. This witness deposing about the second demand i.e. Talb-e-Ishhad stated that on the next day he along with Nauroz (plaintiff), Ibrahim Shah (P.W.4), Haji Sahib Jan (P.W.5) and Manzoor Ahmed (P.W.3) visited Rehman's Builders Masjid Road where Haji Nauroz (plaintiff) stated to Mohsin that he is ready to make payment of the amount against which they have purchased the disputed property and with reference to such transaction Haji Nauroz (plaintiff) stated to Mohsin, to convey the same to Sharaf-ud-Din and Muhammad Younis, whereupon; according to the witness Mohsin replied not to go into litigation and that they are ready to make payment of the amount as per plaintiff's demand. The witness describing the events stated that Mohsin, however; stated that he would inform him within a week. The witness on being cross-examined stated that he is not aware about the date, month and day of the transaction, however the consideration amount of the sale transaction was transpired on obtaining copy of the mutation. He further stated that at about 3/4 p.m. Plaintiff had told to him about the sale transaction and at that time Haji Arshad and Manzoor Ahmed were present and till 5/6 p.m. They were present in the shop. In the cross-examination part of his statement the witness stated that on the next day he and Nauroz (plaintiff) visited Tehsil at about 10 or 10-30 a.m. And about 2/3 hours were spent at Tehsil and that before obtaining the copy of the mutation the plaintiff had claimed right of pre-emption and at such time Patwari, Qanungo and others were present but he does not remember their names and according to him at about 3/4 p.m. They went on the disputed land. He also stated that before going to Tehsil they went to the shop and thereafter visited the disputed land and according to him, the land owned by the plaintiff is situate at a distance of 2/3 kilometers from the suit-land. He also stated that the plaintiff's land measuring about 1-1/2 acres is contiguous to the suit-land and is under cultivation. The witness denied that land covered under Khasra. No.401 comprises of a Nullah/Sailaba drain (Manda). (P.W.2) Nabi Bakhsh produced the property Fard of the plaintiff as Exh.P.1. The witness in the cross- examination disclosed that he has seen land covered under Khasra No.401 and admitted that water flows through Khasra No.401. He, however; denied that the length of the land under Khasra No.401 runs into miles and on his own stated that the same covers a sufficient length and further
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stated that the length of the watercourse of Khasra No.401, commences ahead from Western by- pass which comes to its end at a distance from the agricultural college. Responding to the cross- questions of the defendant's counsel, the witness stated that Mutation No.182 referred in Exh.P./1-A (as per original record) pertains to Khasra No.401 and admitted that in the original record in the relevant column "Paimana Haqiat-e-Aab" has not been mentioned while in Exh.P./1 in the column of Paimana-e-Haqiat Aab 15 Shabana Roz has been mentioned and according to the witness three Saya amounts to 15 Shabana Roz which has been incorporated in the light of the original record. The witness further admitted that the note endorsed on Exh.P./1 has not been mentioned as such in the original record i.e. Exh.P./1-A, who further stated that 15 Shabana Roz water was previously used to be obtained from the Karez which has now dried up. (P.W.3) Manzoor Ahmed is the witness to the second demand i.e. Talb-e-Mawasibat. He deposed that he does not know the vendees ' and is also not aware to whom the suit property previously belonged to and stated that the plaintiff owns land in the same Mohal. According to him about 4/5 months back it had come to knowledge that respondent No.1 (vendor) sold land to the respondents Nos.2 and 3 namely Muhammad Younis and Sharafuddin. According to the witness Haji Nauroz had shown to him and to Ibrahim Shah, Sahib Jan and Fazalur Rehman's, the copy of the mutation who had stated that some one has purchased land in their Mohal and the witness narrating the sequence of the facts stated that the plaintiff had asked them to accompany him because he wanted to assert his right of pre-emption and thereupon; they along with the plaintiff went to a office situate at Masjid Road where one person namely Mohsin was present to whom the plaintiff stated that he has a right of pre-emption on the suit-land purchased by him, to which said Mohsin stated that he has not purchased rather Muhammad Younis and Sharafuddin purchased the same and that Mohsin further stated that the vendees are not present there and that in any case, if the plaintiff has any claim then he would inform him after talking to the concerned. This witness in the cross-examination stated that the land owned by the plaintiff is not under the cultivation and stated that the document of mutation was shown to him at 10-00 a.m. He further disclosed that the land of the plaintiff is situate at a distance of 3/4 kilometers from the suit property. (P.W.4) Syed Ibrahim Shah is the witness to the subsequent demand i.e. Talb-e-Mawasibat and according to him about six months back from today, he along with the plaintiff Fazalur Rehman's, Manzoor Ahmed and Sahib Jan went to Rehman's Builders, Masjid Road and met to a person namely Mohsin, where the plaintiff asked Mohsin to convey to the concerned people on his behalf that he has the right of pre-emption on the land purchased by them and to have their money/amount within a week otherwise the plaintiff would approach to the Court, on this according to the witness, Mohsin stated that if any settlement could be arrived apart from the legal proceedings to which the plaintiff answered in negative. The witness also stated that the said Mohsin is the Incharge of the respondents. In the cross-examination part of his statement, stated that at about 11/12 noon they visited Mohsin and no mutation document was shown to him. He also stated that Mohsin had himself' told that he was the Incharge of the vendees. (P.W.5) Haji Sahib Jan is also the witness to the Talb-e-Mawasibat, who deposed that on a day, he visited the shop of the plaintiff and to him the plaintiff stated that he had some work with a person whose shop is located at Masjid Road whereupon; he, plaintiff and two of his companions Ibrahim and Arbab Fazal went to the office situate at on first floor Masjid Road and the plaintiff' to a person sitting in the office stated that the property which he purchased is valuing of Rs.40,00,000 and further the plaintiff asked to that person whether he is to make payment then and there or the same to be deposited in the bank and on this according to the witness that person stated to settle/decide the same with them so that both the parties to remain happy. The witness stated that thereafter they left the office. Answering to the questions put by the defendant's counsel the
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witness stated that about 5/6 acres of plaintiff's land is contiguous to the suit property and in the same breath stated that he has no knowledge if any land of the plaintiff is contiguous to the suit property or otherwise. He also stated that before going to Masjid Road, the plaintiff had not talked about sale and purchase of the land. Plaintiff Haji Nauroz Khan deposed that he owns lands in Baleli and Sheikh Manda and according to him he used to visit Tehsil and thus, in the month of March, 1997 he was present in Tehsil when he came to know that the suit property has been sold and at that time Fazalur Rehman's (P.W.1) was also accompanying him. Whereafter he asked for the grant of copy of the 'mutation and when they were on their way from Tehsil, Haji Hassan met him whereafter, according to the plaintiff he visited the suit property and claimed his right of pre-emption thrice. The plaintiff further stated that on the next day he along with Syed Ibrahim Shah, Sahib Jan, Fazalur Rehman's and Sahibzada Manzoor Ahmed visited the office of Al-Rehman's Builders situate at Masjid Road where Mohsin Ali was present, to whom the plaintiff stated that they have purchased the property and as to whether he is to make payment in the office or the same to be deposited in his account. Thereupon; according to the plaintiff Mohsin Ali stated, not to institute suit and to have a deal with them. In the cross- examination part of his statement, plaintiff admitted that in Mohal Balch and Sheikh Manda he has sold land to 40 persons. He also admitted that he has sold lands which was jointly owned by him with his brothers and similarly joint lands have been sold by his brothers to the extent of their shares. He further admitted that he did not institute any suit of pre-emption in respect of the lands sold by his brothers to the extent of their shares in the joint lands. The plaintiff responding to the questions put to him by the defence counsel stated that he had filed a suit for pre-emption in the year 1990 against a person but did not remember as to against which persons he had filed such suit besides Mughul Company. He admitted that Mark `A' annexed with the plaint is not contiguous to the suit-land but is situate at a distance of 1-1/2 or 2 kilometers. Plaintiff further admitted that property covered under Khasra No.401 is a Manda/Sailaba drain depth whereof ranges 10/12 feet but denied that it is sullage water Nulla. Plaintiff admitted that the suit property was purchased for Rs.2,90,00000. 10. As above doted the defendants did not produce any evidence nor respondent No.1 (vendor) recorded his statement before the trial Court, however; Muhammad Tahir as attorney for the respondents Nos.2 and 3 (vendees) got recorded his statement before trial Court, he produced Mark `D/1' Tatima of the suit property whereby eight acres of' land was transferred by way of mutation in favour of the vendees on 15-8-1996. According to the attorney subsequent to the purchase of land, the same was levelled and developed besides the constructions raised thereon including the erection of the boundary wall which entailed Lacs of rupees. He stated that the aforementioned property was purchased against the sale consideration of Rs.2.908,500. According to him no land or the plaintiff is adjacent to the suit properly, however; property under Khasra No.401 comprises or a Manila length whereof according to the attorney is about 2/3 kilometers, whereas; its depth is 15/20 feet. The attorney further stated that the disputed land was purchased for establishing a housing scheme and on account or the works being carried out on the disputed land, the plaintiff came to know about the transaction but he did not object to that and according to the attorney suit for pre-emption has been instituted to black-mail; narrating the events he stated that 2-1/2 or 3 months back the plaintiff' had come to the site office along with Aurangzeb where the respondent Sharafuddin was present and had demanded Rs.40,00,000 for withdrawal of the suit and; had also offered that in case Sharafuddin does not want to pay the amount to him, the same to be arranged to be given to him by the Karachi party (Muhammad Younis-respondent No.2). He categorically stated that Mohsin has no concern with the disputed property and the plaintiff also does not enjoy any right of pre-emption. The attorney responding to the question put to him in the cross-examination stated that respondent No.2 is resident of Karachi, whereas; the
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respondent No.3 is resident of Chaman. He admitted that the vendees do not own any land except the disputed land. He also denied that the plaintiff had made Talbs. The learned trial Court after hearing the parties vide impugned judgment and decree, dated 30-1- 1998 dismissed the suit of the appellant, which is impugned in the instant appeal. 11. We have heard the learned counsel for the parties at length. Mr. Muhammad Riaz Ahmed, the learned counsel for the appellant contended that:-- (a) During the pendency of the suit before the trial Court, the…
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