2009 PLP 90 (YLR)

Representation

• ----Ss. 6 & 13---Suit for pre-emption--Making of Talabs---Service of Talb-e-Ishhad was a prerequisite and if the performance of the same was not proved beyond any shadow of doubt as well as in the prescribed form, then the whole structure would fall down---In the present case one witness was produced to prove that notice of Talb-e-Ishhad was served, whereas according to Qanun-e-Shahadat, 1984 two witnesses were to be produced, rendering the said notice defective and making it a case of non-performance of said Talab in the true spirit of S.13(3) of Punjab Pre-emption Act, 1991---Record also revealed that notice of Talb-e-Ishhad was not given by the pre-emptor himself, but was given by an Advocate, who had not been delegated powers by the pre-emptor authorizing him to issue such notice---One of the witnesses produced by the pre-emptor did not depose in clear terms that pre-emptor made Talb-e-Muwathibat immediately in the same meeting---Findings recorded by the courts below were contrary to the evidence available on record, which was a sufficient ground for interference by the High Court, in exercise of its revisional jurisdiction---Impugned concurrent judgments and decrees of the courts below, were set aside and suit was dismissed.
• Taki Ahmed Khan for Petitioners.
• Pir Syed Kaleem Ahmed Khurshid for Respondent.
• 2. Learned counsel for the petitioners submits that the respondent failed to prove performance of Talb-e-Ishhad as only one witness namely Muhammad Khalid was produced as P.W.4, which was sufficient ground for dismissal of suit being contrary to the provisions of Qanun-e-Shahadat Order, 1984. Further submits that notice of Talb-e-Ishhad was given by Rana Peer Muhammad, Advocate and not by the respondent despite the fact that power in favour of the said Advocate was not delegated by the pre-emptor, thus the notice of Talb-e-Ishhad is illegal and unwarranted. According to the learned counsel notice of Talb-e-Ishhad was admittedly written on 1-12-1994, whereas the witness deposed that they approached Rana Peer Muhammad, Advocate on 4-12-1994, which is a sufficient ground to treat the said notice as forged and fictitious document, thus the requirement of Talbs being not fulfilled strictly in accordance with law, the respondent's suit was liable to be dismissed. Further contends that respondent was not a co-sharer in the suit Khata, hence finding of the trial Court on issue No.10 dealing with the superior right of pre-emption was erroneous and that even otherwise the witnesses of the respondent were not trustworthy/truthful.
• 6. In the instant case, admittedly, one witness was produced to prove that notice of Talb-e-Ishhad was served, whereas according to Qanun-e-Shahadat Order, 1984, two witnesses were to be produced, rendering the said notice a defective one and making it a case of non-performance of said Talab in the true spirit of section 13(3) of the Punjab Pre-emption Act, 1991. It also transpires from the record that notice of Talb-e-Ishhad was given by Rana Peer Muhammad, Advocate and not by the pre-emptor himself and admittedly Rana Peer Muhammad, Advocate, was not delegated powers by the pre-emptor authorizing him to issue such notice. There is another aspect of the matter that PW.5 did not depose in clear terms that he made Talb-e-Muwathibat immediately in the same meeting, which fact is also confirmed by P.W.4 who failed to state that pre-emptor had immediately made Talb-e-Muwathibat in the same meeting without loss of time, meaning thereby that Talb-e-Muwathibat was also not made in accordance with law, whereas the findings recorded by the lower Courts are contrary to the evidence available on record, which is a sufficient ground for interference by this Court. Accordingly, the revision petition is allowed, the impugned judgments and decrees, dated 22-6-1999 and 17-4-2000 passed by the learned Civil Judge and learned Additional District Judge, Sialkot, are set aside and suit of the respondent is dismissed.

Judgment & Decree