1/21/24, 12:02 AM 2015 C L C 343

2015 C L C 343

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

MUHAMMAD KHAN----Appellant

Versus

Ch. ABDUL RAHIM and 2 others----Respondents

Regular First Appeal No.75 of 2010, decided on 20th November, 2014.

(a) Islamic law---

----Pre-emption---Talbs, performance of---Evidence produced by plaintiff and his

statement with regard to performance of talbs by him and gaining knowledge of sale
was not in consonance with the pleadings---No date, time and place had been
mentioned in the plaint with regard to performance of Talb-i-Muwathibat---Averment
made in the pleadings did not constitute the evidence but evidence led must be
consistent therewith---Pleadings could not be departed except by way of amendment---
Anything stated outside the scope of such averment could not be looked into---
Evidence and statement of the plaintiff was not only divergent from pleadings but there
were inter se contradictions with regard to gaining knowledge of sale of suit land and
performance of required talbs---Plaintiff had failed to establish performance of talbs in
accordance with law---Findings recorded by the Trial Court were well versed and
based on sound reasoning---Appeal was dismissed in circumstances.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs

Choudhary Brothers Ltd v. The Jaranwala Central Co-operative Bank 1968 SCMR 804
and Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 rel.

(b) Civil Procedure Code (V of 1908)---

----O. VI, Rr. 7 & 17---"Pleadings"---Scope---Averment made in the pleadings did not
constitute the evidence but evidence led must be consistent therewith--- Pleadings
could not be departed except by way of amendment---Anything stated outside the
scope of such averment could not be looked into.

Government of West Pakistan v. Haji Muhammad PLD 1976 SC 469; Messrs

Choudhary Brothers Ltd v. The Jaranwala Central Co-operative Bank 1968 SCMR 804
and Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 rel.

Miss Sabira Islam for Appellants.

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Abdul Wali Khan Nasar for Respondent No.2.

Date of hearing; 10th September, 2014.

JUDGMENT

MUHAMMAD EJAZ SWATI, J.---- Through this Regular First Appeal the appellant
has challenged the validity of judgment and decree dated 1st March, 2010 passed by
Senior Civil Judge-III, Quetta, whereby; suit for pre-emption filed by the appellant was
dismissed.

2. The brief facts leading to filing of this appeal are that the appellant preferred his suit
for pre-emption against the private respondents, pre-empting the sale of suit land
bearing Khasra No.2795/2618/2303 measuring 40 rods situated in Mohal Khushkaba
Saraghurgh Mouza Saraghurgh Tappa Durrani-II Tehsil Saddar District Quetta,
adjacent to the property of the appellant (plaintiff). The appellant averred in the plaint
that the respondent No.1 in the end of May, 2008 sold his property to respondent No.2
and also handed over the possession of the same to the respondent No.2 (defendant
No.2). It is further averred that soon after gaining the knowledge about the sale of suit-
land, he immediately asserted his right of pre-emption by performing Talb-e-
Mawasibat and after fulfilment all the requirements of Talbs he has also offered the
consideration amount to the private respondents.

3. The respondent No.2 contested the suit while, remaining respondents proceeded
against ex parte.

Out of pleadings of the parties, following issues were framed:

(1) Whether the suit is not maintainable in view of legal objection "A" of written
statement of defendant No.2?

(2) Whether the disputed properties have been sold out in Rs.18,00,000?

(3) Whether the plaintiff is entitled to the relief claimed for?

(4) Relief.

4. The appellant, to substantiate his contentions produced PW-1 Jan Muhammad, PW-2
Ghulam Rasool, PW-3 Abdul Malik and got recorded his statement, whereas in
rebuttal, the respondent No.2 produced DW-1 Ghulam Mustafa, DW-2 Hashmatullah
Qambrani, DW-3 Muhammad Azam and DW-4 Mushtaq Hussain and thereafter got
recorded his statement.

5. The trial court after hearing the arguments from both the sides, vide impugned
judgment and decree dismissed the suit filed by the appellant, hence this appeal.

6. The learned counsel for the appellant contended that as regard the performance of
Talbs the trial court has failed to consider the evidence on the point of performance of

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Talbs, which were duly performed by the appellant (plaintiff). Disputing findings of
the trial court on the issue of performing of Talbs learned counsel for the appellant
stated that the appellant had produced two witnesses, which have supported the
substantial facts with regard to the required Talbs, but the trial court has failed to
appreciate their statements in its true perspective which resulted the grave miscarriage
of justice, therefore, the impugned judgment is not sustainable.

7. The learned counsel for the respondent No.2, on the other hand opposed the
arguments and contended that the appellant has failed to prove the performance of
Talbs in accordance with law, particularly there is no substance on record with regard
to performance of Talb-e-Muwathibat. It is further contended that the evidence is not in
consonance with the pleadings in respect of gaining knowledge about the sale and
performing Talb-e-Mawasibat, therefore, the trial court has rightly disbelieved the
evidence produced by the appellant and the impugned judgment and decree is based on
reasons and liable to be sustained.

8. We have heard the learned counsel for the parties and have gone through the record.
The appellant asserted that the suit property was sold by the respondent No.1 to
respondent No.2 in consideration of Rs.18,00,000 (rupees eighteen lacs only) and in
this respect produced mutation entries No.1272 Exh.P/3, on the basis whereof,
mutation entries of the suit property in revenue record was transferred in favour of the
respondent No.2. The respondent disputed the above consideration and stated that the
suit property was actually purchased by him in consideration of Rs.5,45,00,000 (rupees
five crore forty-five lacs only) and substantiate his contention and produced agreement
dated 14-4-2008 Exh.D/1 arrived between the respondents Nos.1 and 2 regarding sale
and payment of consideration. The relevant is reproduced hereunder:

9. Further DW-4 Mushtaq Hussain, representative of Habib Bank Limited ("HBL")

Prince Road Branch, Quetta produced pay order as Exh.D/2 to Exh.D/5 total amount of
Rs.5,45,00,000. The documentary evidence Exh.P/3

produced by the appellant is mutation entries and on the basis whereof, vandee i.e.
respondent No.2 derived the transfer of suit property in his favour which is admitted
documents between the parties, whereon consideration amount has been mentioned as
Rs.18,00,000, whereas the documentary evidence in this regard produced by the
respondent No.2 showing the consideration amount as
Rs.5,45,00,000 and in this respect there is dispute between the parties. To prove
agreement Exh.D/1, though the appellant has produced the marginal witness of the
covenant i.e. DW-3 Muhammad Azam but he has failed to produce second marginal
witness namely Haji Ghulam Muhammad son of Haji Ghulam Dastageer. To prove the
agreement as required by under article 79 of Qanun-e-Shahadat Order 1984 which
reads as under:---

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"Proof of execution of document required by law to be attested.--- If a document is

required by law to be attested, it shall not be used as evidence until two attesting
witnesses at least have been called for the purpose of proving its execution, if there be
two attesting witnesses alive, and subject to the process of the Court and capable of
giving evidence."

10. The appellant through PW-3 has produced agreement Exh.P/3, but the second
marginal witness has not been produced to prove the contention regarding
consideration amount, hence the findings rendered by the trial court in respect of Issue
No.2 is unexceptional, therefore, cannot be disturbed.

11. The evidence produced by the appellant and his statement with regard to required
Talbs and gaining knowledge has been found departure from pleadings. PW-3 Abdul
Malik deposed that the appellant gained knowledge about the sale of the suit property
in the first week of June, 2008, whereas the appellant in his statement stated that he
gain knowledge of the said transaction on 4th June, 2008 and asserted his right of pre-
emption by making immediate demands, but contrary to that in the plaint in paragraph
5 he averred as under:---

"That the plaintiff soon after coming to know about the sale of suit land immediately
asserted his right of Pre-emption by performing Talb-e-Mawasibat."

12 In above paragraph of the plaint the appellant had averred that after gaining
knowledge about the sale of the suit property he immediately asserted his right of pre-
emption by performing Talb-e-Mawasibat. It is obvious from his pleadings that no
date, time and place have been mentioned in the plaint. The evidence produced by the
appellant and in his statement, he outright departed from his pleading. The averment
made in the pleadings does not constitute the evidence, but evidence led must be
consistent therewith, as provided Under Order VI, Rule 7, C.P.C. which reads as
under:---

"Departure.--- No pleading shall, except by way of amendment, raise any new ground
of aim or contain any allegation of fact inconsistent with the previous pleadings of the
party pleading the same."

13. The above rules of procedure provides that the pleadings cannot be departed except
by way of amendment Under Order VI, Rule 17, C.P.C., therefore, anything stated
outside the scope of such averment cannot be looked into. In the case of Government
of West Pakistan v. Haji Muhammad, PLD 1976 SC 469, Messrs Choudhary Brothers
Ltd v. The Jaranwala Central Co-operative Bank, 1968 SCMR 804 and Binyameen v.
Choudhary Hakim, 1996 SCMR 336, it is held that "no party can be allowed to lead
evidence on a fact which have not specifically pleaded nor can any evidence be looked
into which is outside the scope of pleading."

14. In case of Major (Retd.) Barkat Ali v. Qaim Din 2006 SCMR 562 the evidence led
outside the pleadings was not approved and the Hon'ble Supreme Court observed as
under:---

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"The ratio of the afore-referred cases appears to be that a party is not permitted to
deviate from his or her pleadings nor can a Court set up a different plea for a party and
decide the suit on that basis, muchless at the appellate stage."

15. The other aspect of the matter on the basis whereof the evidence and statement of
the appellant with regard to Issue No.3 are discarded, are that according to PW-1 and
PW-3 the appellant came to know about the sale in the first week of June, 2008 without
mentioning the particular date, time and place, whilst the appellant stated that on 4th
June, 2008 he gain knowledge about the sale from Patwari and Qanoongo in Tehsil
office on 4th June, 2008 at 8:00 a.m. but he has not asserted the immediate demand in
Tehsil neither produce the said Patwari and Qanoongo as a witness to prove the factum
of gaining knowledge and making of first Talbs i.e. Talb-e-Muwasibat. PW-1 however
stated that on same date i.e. 4th June, 2008 he along with appellant went to the house
of the respondent No.2 at Pashtoonabad Quetta, where the appellant asserted his right
of pre-emption, whereas PW-3 and appellant stated that on 4th June, 2008 he along
with the appellant and above witnesses went to the house of the respondent No.2, but
he was not present at his home and on the next day the appellant went there and
asserted his right. It is also noted that the witnesses produced by the appellant stated
that the house of respondent No.2 was situated at Pashtoonabad, whereas the appellant
stated that the house of respondent No.2 was at Kasi Road Shaldara, Quetta. The
evidence and statement of the appellant is not only divergent from the pleadings, but
there are inter se contradiction with regard to gaining knowledge and performance of
required Talbs. The cumulative effects of the above evidence produced by the appellant
is that he has failed to establish performance of the required Talbs in accordance with
law and findings of the trial court in respect of Issue No.3 does not call for any
interference by this Court.

16. The appellant has failed to prove the required Talbs in accordance with law.
Therefore, it is concluded that the findings recorded by the trial court in the impugned
judgment and decree are well versed, based on sound reasoning, as such, same are
devoid of any interference by us.

In view of the above discussion, the appeal has no force, which is accordingly
dismissed leaving the parties to bear their own costs.

Decree sheet be drawn.

AG/85/Bal. Appeal dismissed.

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