2010 PLP 124 (CLC)

ABDUL SATTAR GORAYA, J.

By means of this revision brought under section 115, C.P.C., the judgment and decree dated 17-7-2003 of the learned Additional District Judge, Kharian have been brought under impeachment.

2. The facts in brief are that the petitioner filed a suit for possession through pre-emption of the land measuring 60 Kanals, 19 Marlas, fully described in the plaint. It was averred that the vendor sold land to the respondent through registered deed bearing No.618 dated 26-6-1997 for consideration of Rs.11,73,000 but with a view to defeat the perspective pre-emption suit, fictitious amount of Rs.22,50,000 has been shown in the sale-deed. Petitioner claimed that he had a superior right of pre-emption. In para. No.3 of the plaint, it was explained that he got knowledge through Nadir Khan son of Bilal Khan on 23-8-1997 at about 9-00 a.m. who disclosed the factum of sale and at the same time, without losing a moment even, made Talb-i-Muwathibat (jumping demand) and then the remaining formalities were completed; whereafter the other Talbs were performed in a mode prescribed by law. In the written statement, the averments of the plaint were empathically denied. In the preliminary objection it was claimed that the suit was time-barred and that the petitioner-suitor was estopped by his own conduct and performance. On facts and merits, it was claimed that the notice of Talb-I-Ishhad was not given and it was not received by the respondent-vendee and the requisite performance of Talbs are non-existent. Divergent pleadings of the parties gave rise to the following issues:

(1) Whether the plaintiff has got superior right to pre-empt the suit-land? OPP (2) Whether the plaintiff has performed Talbs in accordance with law? OPP (3) Whether ostensible sale price of Rs.22,50,000 was fixed and paid in good faith as consideration of the suit-land? OPD (4) What is market value of the suit-land? OPPs. (5) Whether the defendant is entitled to get incidental, charges in case the suit is decreed? If so to what extent? OPD (6) Whether the plaintiff has got no cause of action and locus standi to bring this suit? OPD (7) Whether the plaintiff is estopped by his word and conduct to institute this suit? OPD (8) Whether the suit does not lie? OPD (9) Whether the suit is time-barred? OPD (10) Whether the plaintiff has not deposited Zar-i-Suem as ordered by the Court: If so, its effect? OPD (11) Whether the suit is not properly valued for the purposes of Court fee? OPD (12) Whether the plaintiff has waived his right of pre-emption? OPD (13) Whether the suit is false, based on mala fide and the defendant is entitled to get special costs? OPD (4) Relief. Issues Nos.1 and 2 are the core issues in the whole case. Onus of these two issues was proposed upon the plaintiff. While returning finding on issue No.2, the learned trial Judge came to the conclusion that the necessary Talbs have been performed in accordance with law and nothing has been brought out on record by the defendant to reach at a conclusion that there was some lacuna or error in completing the said formalities necessary to be done by law. Issue No.1 in respect of superior right was also answered in favour of the petitioner by having held that according to the Jamabandi for 1993-1994 Exh.P.3, the suitor is Shareek Khata. Issues Nos.3 and 6 to 13 were also answered against the defendant. Onus of issue No.4 was proposed upon both parties and it was held that the market price has been correctly shown as Rs.22,50,000 in the sale-deed. On issue No.5, it was held that the vendee is entitled to receive apart from the amount shown in the deed, the necessary expenses incurred by the vendee and he is also entitled to receive an amount of Rs.20,02,500 from the petitioner. In nutshell, the suit was decreed subject to deposit of Rs.22,50,000 and the incidental charges as determined under issue No.5. An appeal was taken against the said judgment and decree by the vendee which was accepted by the learned Additional District Judge vide his judgment and decree dated 17-7-2003.

3. Learned counsel for the petitioner states that the learned Additional District Judge while passing the impugned judgment and decree based his decision on extraneous considerations and the conclusion drawn by him is running counter to the evidence available on the record. Further argued that Talb-I-Ishhad and all the necessary Talbs were performed in accordance with law but the learned Additional District Judge while passing the impugned judgment and decree altogether set up a new case to the advantage of the vendee-respondent which even otherwise is not available on the record.

4. Conversely, the learned counsel for the respondent argued that the impugned judgment and decree passed by the learned Additional District Judge is rich in detail and came out with the plea that the Talb-I -Ishhad was not performed according to the requirements and standard fixed in section 13(1)(b) of the Punjab Pre-emption Act, 1991.

5. I have given conscious thought to the arguments made by learned counsel for the parties and with their able assistance have gone through the record available before me.

6. The learned Additional District Judge while reversing decree of the trial Court, focused his decision on the point that the sale-deed was made through a registered instrument and the witnesses admitted that all the villagers knew the registration of the sale-deed. It was emphasized that since all villagers knew with regard to the date of sale-deed., the necessary presumption would be that the petitioner had a notice of the sale transaction on 26-7-1993' but .he sent a notice on 26-8-1997. The stance taken by the suitor that he gained knowledge on 23-8-1997 was held to be incorrect. Concluding paragraph 10 of the judgment of the learned Additional District Judge is relevant which is reproduced:

"It is an admitted fact that the sale made through a registered sale-deed and the P.W.3, P.W.4 and P.W.5, all have admitted that all the villagers knew at the time of registration of the sale-deed that the property had been sold out means that at the time of registered sale-deed i.e. 26-7-1997, all the villagers knew that the property had been sold and the plaintiff/respondent sent a notice on 26-8-1997 whereas he had said that he came to have the knowledge of the sale-deed on 23-8-1997 which fact is not supported by his own evidence if all the villagers knew that the property had been sold through registered sale-deed at the time of registration of the sale-deed i.e. on 26-6-1997 then it is not possible considering our set up of villages' life style that plaintiff/respondent could not had got the knowledge of the sale-deed."

7. From the bare perusal of the whole judgment passed by the learned Additional District Judge, one thing is pertinent that the main reason which weighed with him in passing the said judgment was that Photostat copy of the notice has been brought on the record which was not believed to be correct and it was held that it may not be the same notice, which the suitor-pre-emptor sent to the vendee. There is no denying of the fact that the postal receipt is available on the record and clerk of the postal Department to prove the execution of the receipt appeared in the witness box as P.W. photocopy of the notice sent to the respondent the witnesses of which have been produced in evidence, could not be said to be a copy other than the one dispatched to the addressee. On the face of this situation that when the receipt of the postal Department which was provided to be unambiguous evidence of P.W.1 a strong presumption arises that the notice must have been received by the addressee and if some one has not received the notice and the same was returned in original for any reason, the petitioner-suitor cannot be blamed. This question came up for consideration in Hameedullah Khan and others v. Mst. Zeenat Khatoon 2008 SCMR 1444 wherein the apex Court concluded the issue by having held that photo copy of the notice brought on the record was sufficient evidence to determine that Talb-i-Ishhad has been performed and the photo copy can be accepted as a valid truth. The relevant portion of the judgment reads:

"We have heard learned counsel for the petitioners and have also gone through the impugned judgment as well as the case-law being relied upon by the learned counsel. It is to be noted that as far as P.W. Zeenat Khatoon is concerned, she has tendered copy of notice which was in her possession, after sending the original to the petitioners, therefore, in our opinion, the Court was legally right to accept its Photostat copy and on this score, no point is made out for grant of leave to appeal. The judgment being relied upon by the learned counsel is distinguishable, .in view of the facts and circumstances of instant case". Ghulam Abbas and another v. Manzoor Ahmad and another 2008 SCMR 1366 and Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 are also quoted with advantage.

8. Learned Additional District Judge in my considered view has altogether set up a new case to the advantage of respondent-vendee which otherwise is not spelled out from the record. The evidence on the point of Talb-i-Muwathibat is consistent and there is no discrepancy in it. The presumption drawn by the learned Additional District Judge that since other people of village had got knowledge, it does not mean that the petitioner had also knowledge of the sale. Knowledge of other persons cannot be presumed to be a knowledge of the suitor. This is for the first time, a new interpretation of section 13(1) of the Punjab Pre-emption Act has been brought on the record. The impugned judgment and decree in any case is not sustainable at law.

9. For what has been stated above, the revision petition is accepted with costs and the impugned judgment and decree dated 17-7-2003 passed by the learned Additional District Judge are set aside with costs and that of the learned trial Court dated 29-11-2002 are restored. H.B.T./S-120/L Petition accepted.