P L D 2006 Lahore 39 (PLP)

SYED ZAHID HUSSAIN, J.

The petitioner is vendee of land measuring 8-kanals 9-marlas situated in Chamber Revenue Estate, Tehsil and District Sheikhupura. Mutation No.1116 to that effect was attested on 16-2-1994. Muhammad Rafique instituted a suit to pre-empt the said sale, which was dismissed by the learned trial Court on 15-12-2000. In the appeal preferred by him he succeeded and his suit was decreed by the learned Additional District Judge Sheikhupura vide judgment dated 19-10-2001. This is revision petition by the vendee/ defendant.

2. The learned counsel for the petitioner has primarily assailed the findings of the appellate Court qua issue No.2 i.e. performance of Talbs and issue No.6 (as to superior right of the plaintiff/pre-emptor). It is contended by him that the respondent/plaintiff/pre-emptor had not performed the Talbs in accordance with law inasmuch as the alleged notice of Taib-i-Ishhad and the averments made in the plaint did not fulfil the requirement of law; and that Mubarak Ali who had allegedly informed the respondent/pre-emptor about the sale had not been produced as witness. It is further contended that the appellate Court has overlooked and ignored the inconsistencies and material contradictions in the depositions of the witnesses produced by the respondent. Reference has been made to Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235). According to the learned counsel for the respondent/pre-emptor neither the non-production of Mubarak Ali as witness had any adverse implications nor it was required of the plaintiff to make mention of date, place and timing of acquiring knowledge about the transaction.

3. The case set up by the respondent/pre-emptor in the notice dated 5-6-1995 (Exh.P-1) was that he had learnt about the sale on 28-5-1994 when he declared that he had superior right and would file a suit for that Purpose. In paragraph 4 of the plaint it was averred that he acquired knowledge of the sale on 28-5-1994 in a 'Majlas' when he declared his intention of filing the suit in the presence of Niaz Ali, Ali Akbar and Mubarak Ali. No disclosure was made either in the notice or in the plaint A as to who informed him about the transaction where and at what time he acquired such knowledge or information. In paragraph 4 of the plaint it is pleaded that:-- The expression and do not refer to any definite place or meeting. He had to be specific and straightforward about this initial step in the performance of Talb-i-Muwathibat. While appearing as PW.I Muhammad Rafique deposed that Mubarak Ali son of Ghulam Nabi had informed him about the sale. Though Ali Akbar (P.W.2) and Niaz Ali (P.W.3) were produced. Mubarak Ali was not produced in Court. His non-production also gave rise to an adverse inference against him in view of Muhammad Mal Khan's case (Supra). The non-production of star witness about the alleged performance of Talb-i-Muwathibat has been overlooked by the learned appellate Court. It may be mentioned that the provisions of section 13 of Punjab Pre-emption Act, 1991 can only be regarded to have been complied with when all steps of performance of Talbs preceding the filing of the suit are duly performed. In Haji Muhammad Saleem v. Khuda Bakhsh (PLD B 2003 SC 315) it was held that "Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis' the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as a mere technicality at times, it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i-Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provision qua Talb-i-Muwathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non-assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country. What we want to emphasize is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple proceduralmatters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption". (Portion underlined by B me for emphasis). In Akbar Ali Khan and others v. Mukamil Shah and others (2005 SCMR 431) the legal position has again been reiterated. Suffice it to observe that the underlining idea and rationale behind the provisions of section 13 of the Act as to the performance of Talbs (demands) in sequential order and the manner prescribed for that purpose, appear to be that the prospective pre-emptor should come forward faithfully in a straightforward manner, the moment he acquires knowledge of the transaction of sale. Great emphasis has been laid in subsection (3) of section 13 of the Act to the truth and verity of the pre-emptor, his intention to exercise that right and the notice of Talb-i-Ishhad is required to be attested by "two truthful witnesses". All details, C thus, about the making of Talb-i-Muwathibat are to be mentioned in the said notice and no deviation therefrom will be permissible later on. If such compliance is not insisted upon, the plaintiff/pre-emptor can continue shifting and improving his stance before and during the trial of the suit. Such inconsistency of stance/plea will negate the intent and object of the statutory provisions and cannot be countenanced by the Court. Since the very foundation for maintaining the suit for pre-emption was lacking in the instant case, the learned trial Court was fully justified to dismiss the suit whereas the learned appellate Court acted illegally in the matter in reversing the findings on the essential issue i.e. Issue No.2, for which no justification existed on the record. As a result of the above, by setting aside the judgment of the appellate Court the revision petition is accepted, restoring the judgment of the trial Court. No orders as to cost. M.B.A./M-1346/L?????????????????????????????????????????????????????????????????????????????? Petition accepted.