Mst. BIBI FATIMA vs MUHAMMAD SARWAR S — 2022 SCMR 870 SUPREME-COURT

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Mst. BIBI FATIMA VS MUHAMMAD SARWAR S. 5---Suit for possession through pre-emption---Right of pre-emption---In a suit for pre-emption, plaintiff is required to prove his right of pre-emption at the time of sale of land, at the time of filing of suit and at the time of decree. Head NotesCase Description Citation Name: 2022 SCMR 870 SUPREME-COURTBookmark this Case Mst. BIBI FATIMA VS MUHAMMAD SARWAR S. 6(a)---Suit for possession through pre-emption---Co-sharer/co-owner in khata---Proof---"Fard Intikhab" of Register Haqdaran Zameen is not a substitute of the complete Register Haqdaran Zameen which carries the presumptions of correctness. Head NotesCase Description Citation Name: 2022 SCMR 870 SUPREME-COURTBookmark this Case Mst. BIBI FATIMA VS MUHAMMAD SARWAR S. 151 & O. XLI, R. 33---appellate Court, powers of---appropriate relief for non-appealing parties---appellate Court is empowered, in the interest of justice, to allow appropriate relief to non-appealing parties where the appeal is with regard to whole of the decree in terms of Order XLI, Rule 33, C.P.C.---Court also has inherent powers under section 151, C.P.C., to make such orders, as may be necessary for the ends of justice and to prevent the abuse of the process of the Court---Said provisions are enabling provisions; the powers thereunder can be exercised by the Court to cover ostensibly impossible situations, for complete dispensation of justice, for which C.P.C. has been designed---Where despite the best efforts of the draftsman, to cater for all possible situations, if the C.P.C. is found lacking in meeting some eventualities, the Court can act ex delicto justiciae, supply the omission in the procedure, and adopt such methodology, for effectually carrying out the purpose. Head NotesCase Description Citation Name: 2022 SCMR 870 SUPREME-COURTBookmark this Case Mst. BIBI FATIMA VS MUHAMMAD SARWAR S. 13(3)---Suit for possession through pre-emption---Performance of notice of Talb-i-Ishhad not proved---Plaintiff/respondent claimed that he sent the notice of Talab-i-Ishhad through registered post with acknowledgment due---Since the appellant/defendant denied such fact in his written statement, it was the duty of the plaintiff/respondent to prove not only the issuance of notice of Talab-i-Ishhad in accordance with law and sending of notice to the vendee/defendant through registered post, acknowledgment due but also the service of notice upon vendee/defendant or refusal thereof by producing the Postman and acknowledgment receipt---Admittedly the plaintiff/respondent has not produced the original postal envelope if returned to him on refusal to receive the same by vendee/defendant, neither the receipt of acknowledgment of delivery of notice was produced nor the postman---Plaintiff failed to prove the performance of Talab-i-Ishhad in accordance with law. Head NotesCase Description Citation Name: 2022 SCMR 870 SUPREME-COURTBookmark this Case Mst. BIBI FATIMA VS MUHAMMAD SARWAR O. XLI, R. 33---Cross-objection or cross-appeal against a finding of the Trial Court---Question as to whether in every case when some findings are recorded against a defendant and ultimately the suit is dismissed by the Trial Court, the defendant is required to file cross-appeal or cross-objection or he can argue against the findings recorded against him without filing cross-appeal or cross-objection before the appellate court---Held, that when no part of decree is against the defendant, he can argue against the said findings before the appellate court in the appeal filed by the plaintiff without filing cross-appeal or cross-objection---In case a partial decree is passed against the defendant and rest of the suit is dismissed, if the plaintiff files appeal against the portion of dismissal of suit then it is incumbent upon the defendant to file cross-appeal or cross-objections to challenge the part of grant of decree against him. Head NotesCase Description Citation Name: 2022 SCMR 870 SUPREME-COURTBookmark this Case Mst. BIBI FATIMA VS MUHAMMAD SARWAR S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art. 129---General Clauses Act (X of 1897), S. 27---Suit for possession through pre-emption---Performance of notice of Talb-i-Ishhad---Proof --- Burden of proof---Scope---In terms of Article 129 of the Qanun-e-Shahadat, 1984 read with section 27 of the General Clauses Act, 1897, a presumption of service does arise if a notice sent through registered post with acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the said provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement. Head NotesCase Description

Mst. BIBI FATIMA vs MUHAMMAD SARWAR S — 2022 SCMR 870 SUPREME-COURT

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