2023 PLP 70 (YLRN)

MUHAMMAD SHAN GUL, J.

Through this judgment the titled civil revision is sought to be decided.

2. The titled civil revision has been filed against judgment and decree dated 11.10.2010 passed by a Civil Judge Class-III, Jampur and as also against judgment and decree dated 25.6.2011 passed by an Addl. District Judge upholding the decision of the trial court whereby a suit for possession through pre-emption filed by the petitioner was dismissed.

3. Brief facts of the case are that the petitioner instituted a suit for possession through pre-emption against respondent/ Maula Bakhsh and others claiming that the respondent-Maula Bakhsh had purchased the land in dispute measuring 04-kanals situated in Khata No.34, Mouza Unarr, Tehsil Jampur, District Rajanpur, vide mutation No.1095, dated 31.1.2008, for a consideration of Rs.1,00,000/- but in order to sabotage the right of pre-emption of the petitioner, the price was exaggerated and shown as Rs.1,60,000/-. That the petitioner gained knowledge about the impugned transaction on 03.4.2008 at about 02.00 p.m. in the presence of one Muhammad Aslam through informer Mushtaq Ahmad while the petitioner was sitting in his house and the petitioner in the same Majlis pronounced his right of pre-emption since he was a Khata Shareek and had a superior right of pre-emption than the defendant who was not a Khata Shareek. The respondent-Maula Bakhsh appeared and contested the suit and out of the divergent pleadings of the parties six issues were framed but for the present purpose the only relevant issues are 2 and 3 and which are being reproduced hereunder:- "

2. Whether the plaintiff has performed the Talbs strictly in accordance with law?OPP

3. Whether the ostensible sale price Rs.1,60,000/- was fixed and paid in good faith if not then what was market value of the suit land at the time of sale?OPPs"

4. After recording of evidence and a full-dress hearing the trial court dismissed the suit filed by the petitioner. The petitioner thereafter filed an appeal before the District Court but which was also dismissed. Hence, the present civil revision.

5. Heard. Record perused.

6. It may be straightaway observed that for a suit of pre-emption to be successful the Talbs have to be proved in accordance with law and even if one of the Talbs is not proved in accordance with law then the entire foundational basis of the right to assert pre-emption stands defeated. In the present matter, the petitioner remained unable to fulfill the statutory requirements pertaining to the performance of Talbs in terms of Section 13 of the Punjab Pre-emption Act, 1991.

7. In order to prove Talb-e-Muwathibat, besides the date, time and place of performance of Talb-e-Muwathibat the pre-emptor also has to prove beyond doubt that the Talb-e-Muwathibat had been performed in a Majlis/meeting. While the petitioner has consistently maintained in his examination in chief that Majlis/meeting took place in his house and that he performed Talb-e-Muwathibat inside his house, during his cross-examination the petitioner has taken a nosedive and deposed that the Talb-e-Muwathibat was performed in the courtyard of his house. The star witness of the petitioner i.e. PW-3, Muhammad Aslam (and the solitary witness in favour of the petitioner as opposed to two witnesses) deposed on the other hand that the Majlis/meeting for the performance of Talb-e-Muwathibat took place inside the residence/rooms of the house of the petitioner. This crystal and apparent contradiction between the statement of PW-3, Muhammad Aslam, and the statement of the petitioner in his cross-examination is quite crucial and in fact fatal for the case of the petitioner and squarely attracts the law laid down by the Hon'ble Supreme Court of Pakistan in "Subhanuddin and others v. Pir Ghulam" (PLD 2015 SC 69).

8. It may also be added here that in order to prove Talb-e-Muwathibat it is necessary that two independent witnesses in addition to an informer must be produced but in the case of the petitioner he only managed to produce one independent witness i.e. Muhammad Aslam, PW-3 while Mushtaq Ahmad, PW-2 was an informer of the petitioner and who could not act as a witness simultaneously and this lacuna in the case set up by the petitioner attracts the law laid down in "Mushtaq Ahmad v. Muhammad Afzal and others" (2014 YLR 1046) and "Muhammad Rafique v. Muhammad Shafique and others" (2013 MLD 31).

9. It may be mentioned here that an informer is not a witness because it is upon his information that the right of pre-emption is to be asserted. In view of what has been discussed above, it is clear that the petitioner was not able to prove Talb-e-Muwathibat since he could not produce two independent witnesses to confirm the case. In terms of the law laid down in "Subhanuddin and others v. Pir Ghulam" (PLD 2015 SC 69) at 76-G, "the foundation of the claim of pre-emption rests on making immediate declaration of intention to assert Talb-e-Muwathibat and if this is not proved the entire structure collapses." It is thus clear that the petitioner failed to prove performance of Talb-e-Muwathibat by adducing cogent, reliable or confidence inspiring evidence. The clear contradiction between statement of the petitioner during his cross-examination and that of PW-3, Muhammad Aslam, the petitioner's star witness, puts paid the case set up by the petitioner and the trial court as also the appellate court have rightly held that the petitioner was unable to prove Talb-e-Muwathibat in accordance with law.

10. To prove Talb-e-Ishhad, the petitioner produced receipt of registered acknowledgment due as Exh.P/2 but failed to produce the postman and maintained that presumption of reaching its destination is attached to a registered document with acknowledge due. The petitioner based his case on the admission of the respondent-Maula Bakhsh about how he had gained knowledge about the petitioner sending a notice to him. However, what has escaped the petitioner's attention is that this admission is of no help to him because the admission only reveals that the respondent was in the know of only a notice being sent to him but was clueless about, and not in the know of, what was contained in that notice and more importantly there is no evidence that the notice ever reached him. In this view of the matter, the postman ought to have been produced so as to establish Talb-e-Ishhad. The postman, had he been produced, could have provided information whether the said notice ever reached the respondent or even whether the respondent had refused to receive the same. Talb-e-Ishhad, therefore, remained unproved. It has been held in "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) at paragraph No.11 as follows:- "

11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."

11. Likewise, in "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866), it has been held by the Hon'ble Supreme Court of Pakistan at paragraph No.2 as follows:- "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below."

12. In "Bashir Ahmad v. Ghulam Rasool" (2011 SCMR 762), it has been held that:- "It was imperative for the plaintiff, in order to succeed, to produce the postman to prove that in fact notice of Talb-e-Ishhad was actually served upon the defendant and that he refused to accept the same and that the findings of the High Court that a plaintiff was not required to produce the acknowledgment due receipt as the only requirement was that of sending of notice through registered post acknowledgment due and that the plaintiff was not required to establish the actual receipt of such notice was contrary to law."

13. Therefore, the findings of the trial court as also the appellate court on this aspect are unexceptionable as well and, therefore, call for no interference. In fact, the judgment reported as "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866) is squarely applicable to, and on all fours with, the facts and circumstances of the present case.

14. In so far as other issues are concerned, both courts below have rightly dealt with such issues and while deciding issue No.4, which is as follows:- "

4. Whether the plaintiff was present at the time of sale of the suit property? OPD." the trial court as also the appellate court have ruled that the petitioner was in the know about the mutation in favour of the respondents recorded on 31.1.2008 because the biradari fellows of the petitioner had witnessed the said mutation and it is only on gaining acquaintance with such an exercise from his biradari fellows that the petitioner himself terminated civil relationship with his biradari fellows who had witnesses the mutation in question.

15. Additionally, the judgment reported as "Subhanuddin and others v. Pir Ghulam" (PLD 2015 SC 69) categorically holds that, "a suit of pre-emption should be dismissed if the plaintiff asserts that an exaggerated price was mentioned in the sale deed to defeat pre-emption and then fails to prove the same." The petitioner before this Court failed on this count as well. According to the statement of PW-2, Mushtaq Ahmad, the Halqa Patwari told him that the land was actually purchased for Rs.1,00,000/- but an exaggerated price of Rs.1,60,000/- was mentioned in the mutation. This should be read alongside paragraph No.7 of the judgment of the trial court in which it has been categorically recorded that the counsel for the petitioner before the trial court had accepted that consideration in respect of the impugned mutation was Rs.1,60,000/-. This flaw and discrepancy squarely attracts the law laid down in "Subhanuddin and others v. Pir Ghulam" (PLD 2015 SC 69) at 76, wherein it has been held as follows:- "

10. There is another aspect of the case that requires consideration. The respondent had specifically contended (in his examination-in-chief) that the said land had been purchased for only twenty thousand rupees, but without disclosing the source of such information. If the reason for mentioning a lower price was to obtain an advantage the same was not permissible as it would contravene the provisions of shari'ah which have been made specifically applicable to pre-emption cases. Section 33 of the Act stipulates as under:-- "

33. Matters ancillary or akin to the provisions of this Act.- Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari'ah." 11. . Therefore, when an undue advantage is sought to be gained on the basis of a completely unsubstantiated statement it would disentitle a shafee to claim pre-emption. This was not a case where the plaintiff had been unable to establish the price that he contended was paid for the said land, but instead a case where a plea which had no basis in fact was taken to gain an advantage."

16. In view of what has been noted above this civil revision fails and is hereby dismissed. ZH/R-6/L Revision dismissed.