PLJ 2012 Peshawar 204
Present: Nisar Hussain Khan, J.
Mst. ZAKIYA
BEGUM--Petitioner
versus
MIR JANAT SHAH
& others--Respondents
C.R. No. 4-B of
2003, decided on 4.4.2012.
Performance of Talb--
----Non
production of AD card--Plaintiff had mentioned all details with regard to date,
time and place of performance of talb-e-muwathibat as well talb-e-ishhad which was contradicted in written
statement--Validity--When original evidence on point of fact, was missing, then
mere corroborative evidence, would lose its value nor corroborative evidence,
can prove fact is issue, when original evidence was not available--Held: It is
settled law that mere mentioning of details of performance of talb-e-muwathibat as well as talb-e-ishhad is not sufficient
compliance, unless, it is proved through cogent, reliable and confidence
inspiring evidence--Plaintiff had failed to prove performance of talbs in accordance with law. [P. 207] A
Plaint--
----Filing of
plaint be unauthorized person--Misconceived--Objection of--Filing of plaint has
not been denied by plaintiff--Rather it has come on record that attorney was
verbally authorized to file the suit and later on that authority was
re-affirmed by exceeding a power of attorney in his favour,
on basis of which amended plaint was later on, filed by same authority, when
his power of attorney was already in field--If there was any irregularity, that
was rectified by principal, later on--Objection of petitioner was not
tenable--Petition was allowed. [P.
208] B
Pir Liaqat Ali Shah, Advocate for Petitioner.
Taj Muhammad Khan,
Advocate for Respondents.
Date of hearing:
4.4.2012.
Judgment
Through this
revision petition, petitioner has called in question the judgment and decree of
learned Additional District Judge, Kohat, Camp Court Karak, dated 08.02.3003, whereby accepting appeal of the
Respondent No. 1, his pre-emption suit was decreed in his favour.
2. The facts giving rise to filing of instant
petition are that, Mir Janat Shah respondent,
filed a pre-emption suit in respect of sale Mutation # 4440, dated 12.07.1999,
which was contested by the petitioner-defendant by filing written statement,
wherein, she controverted all the contentions of the
plaintiff/pre-emptor with regard to performance of Talb-e-Muwathibat as well as Talb-e-Ishhad. On framing issues, both the parties were invited to
adduce evidence in support of their respective stance, which they did. On
conclusion of trial, suit of the plaintiff-respondent was dismissed by the
learned trial Court, against which, appeal was filed, which was accepted by
learned Appellate Court and pre-emption suit of the plaintiff-respondent, was
decreed. Hence, this revision petition.
3. It is also pointed out that rival pre-emptors Muhammad Rahim, Muhammad Saleem and Muhammad Jamil sons of
Aslam Shah, had also filed a pre-emption suit, which
was consolidated with the instant suit. However, after dismissal of their suit,
they did not file any appeal thereagainst.
4. Learned counsel for the petitioner argued
that suit was filed by an incompetent person, because it was filed by Arsala Khan Attorney, who was not authorized at that time,
so the suit was liable to be dismissed, on this score alone. He further argued
that according to evidence of the defendant, pre-emptor was in the knowledge of
suit sale, much prior to the performance of alleged Talb-e-muwathibat, because when the suit land was being levelled by the vendee-defendant for construction of the
house, the pre-emptor, greeted him, for purchase of the suit property. He
maintained that when plaintiff appeared in the witness box as PW.3, he did not
utter a single word about the date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-lshhad, in accordance with
law, and no AD Card was produced in the evidence, which would militate against
him. Learned counsel maintained that petitioner-defendant, has specifically
denied the receipt of service of notice Talb-e-lshhad, in her written statement as well as by her attorney
in Court statement. While the plaintiff-respondent, did not produce the
Post-man, to prove the service of notice, hence he has failed to prove Talb-e-Ishhad, in accordance with
law. Thus, the pre-emption suit of the respondent-plaintiff is liable to be
dismissed.
5. Conversely, learned counsel for the
plaintiff-respondent contended that there is no misreading or non-reading of
evidence in the impugned judgment; that plaintiff-respondent has mentioned full
details of date, time and place of performance of Talb-e-muwathibat as well as Talb-e-Ishhad, in his plaint and from the evidence it is proved
that he has established performance of both the Talbs;
that all the PWs were cross-examined by the defendant, but no material
contradiction has been found in their statements. He maintained that to prove
the dispatch of notice Talb-e-Ishhad,
PW.2 has been examined, which is sufficient compliance of provision of S. 13 of
N-WFP Pre-emption Act. Whereas, there is no penal provision in the ibid Act,
for non-production of the AD Card. He maintained that Atta-ur-Rehman (PW.4) and Arsala Khan
(PW.5), have clearly mentioned the date, time and place of performance of Talb-e-Muwathibat, in their
statements. He lastly submitted that judgment of learned Appellate Court is
well reasoned and well founded, hence, cannot be interfered with, in revisional jurisdiction of this Court.
6. Arguments of the learned counsel for the
parties heard and available record perused with their valuable assistance.
7. The perusal of the record transpires that
plaintiff has mentioned all the details with regard to date, time and place of
performance of Talb-e-Muwathibat
as well as Talb-e-Ishhad,
which have been specifically contradicted by the defendant in her written
statement. To prove his case, plaintiff produced Patwari
Halqa with regard to his superior right of
pre-emption. According to his statement, plaintiff-respondent is recorded as
"Hissadar owner" in the suit property. Whereas, petitioner-defendant, is not owner in the suit property,
prior to attestation of mutation. Thus, plaintiff-respondent has got
superior right of pre-emption against the petitioner.
8. In order to prove Talb-e-muwathibat as well as Talb-e-Ishhad, pre-emptor/respondent, produced Shehzad
Gul Clerk of Post-Office as (PW.2), who produced
Booking Receipt of the registered Letter No. 11012 of Government Post Office, Karak as Exh.PW.2/1. However, in cross-examination, he
showed his ignorance about service of the said registered letter, on the
addressee. Mir Janat Shah plaintiff
himself appeared as PW.3. He did not mention in his Court statement, the exact
date and time of performance of Talb-e-Muwathibat as well as the date of Talb-e-Ishhad, as mentioned in his plaint. Although, PWs informer Arsala Khan and Atta-ur-Rehman, present in the Majlis,
have given full details of date, time and place of performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, in their
statements, but it was incumbent upon the plaintiff himself to depose about the
full details of both the Talbs, as mentioned in his
plaint. Firstly, because the contents of the plaint, are never considered as
evidence, unless, the same are proved by the party, in the Court and secondly,
the statements of PW.4 and PW.5, can only be considered as corroborative
evidence. When, the original evidence on a point of fact, is missing, then mere
corroborative evidence, would lose its value nor the
corroborative evidence, can prove the fact in issue, when the original
evidence, is not available. It is settled law that mere mentioning of details
of performance of Talb-e-Muwathibat
as well as Talb-e-Ishhad,
is not sufficient compliance, unless, it is proved through cogent, reliable and
confidence inspiring evidence. In this backdrop of the facts, plaintiff has
failed to prove performance of Talb-e-Muwathibat as well as Talb-e-Ishhad, in accordance with law.
9. Moreover, the defendant has not only denied
the receipt of notice Talb-e-Ishhad,
in her written statement, but she has also categorically denied the same fact,
in her Court statement, recorded through her attorney Gul
Muhammad DW.4. This part of the statement of DW.4, has
not been challenged in his cross-examination. In view of the ratio of the case
titled "Chief Engineer, Irrigation Department N.-W.F.P. Peshawar and 2
others Vs Mazar Hussain
& 2 others" (PLJ 2004 SC 636) and case titled, "Mst. Nur Jehan
Begum through legal Representatives Vs. Syed Mujtaba Ali Naqvi" (1991
SCMR 2300), it amounts to admission on the part of the plaintiff. In view of
unequivocal denial of the vendee-defendant, it was imperative for the plaintiff
to examine the Postman to prove service of notice Talb-e-Ishhad, on her, but he did not produce him. By following
ratio of case titled, "Muhammad Bashir &
others Vs. Abbas Ali Shah" (PLJ 2008 SC 16) and
case titled "Bashir Ahmed Vs Ghulam
Rasool" (2011 SCMR 762), I am constrained to
hold that petitioner has failed to prove performance of Talb-e-Ishhad, as required by the law. The expression
"Sending a notice in writing... "under
registered cover acknowledgement due" has been exhaustively dealt with in
Muhammad Bashir's case (supra), by scanning the law
on the subject of issuance of notice, since pre-partition, till date, including
from the Indian Jurisdiction. The concluding Para No. 21 of the judgment is
reproduced as follow:--
"An
analysis of the case-law discussed in the preceding paragraphs would show that
when a presumption is raised in terms of Article 129 of the Qanun-e-Shahadat Order read with Section 27 of the General Clauses
Act on a question of fact, it would stand rebutted if the addressee makes a
statement on oath denying service and the onus to prove service would continue
to be on the party relying on such a notice unless of course there is other
evidence to indicate that the denial of the service by the addressee is against
the record".
10. The same principle was, later on, followed in
Bashir Ahmed's case. Thus in light of the evidence,
discussed above and by following the ratio of the judgments, referred herein
before, it is held, that petitioner has failed to prove performance of Talb-e-Ishhad, as well.
11. So far as the objection of learned counsel
for the petitioner with regard to filing of plaint by an unauthorized person is
concerned, that is misconceived one. The filing of plaint has not been denied
by the plaintiff himself. Rather it has come on the record that attorney was
verbally authorized to file the suit and later on, that authority was
re-affirmed by executing a power of attorney in his favour,
on the basis of which amended plaint was later on, filed by the same attorney,
when his power of attorney was already in the field. Thus, if there was any
irregularity, that was rectified by principal, later on. Hence, this objection
of the petitioner is not tenable.
12. For the reasons discussed above, this
revision petition is allowed, the impugned judgment of the learned Appellate
Court is set aside and that of the learned trial Court is restored.
Consequently, the suit of plaintiff-respondent, is
dismissed. Parties to bear their own costs.
(R.A.) Petition
allowed
