2011 SCMR 762 (PLP)

MIAN HAMID FAROOQ, J.

Petitioner seeks leave to appeal against order dated 14-3-2005, whereby a learned Single Judge of the Lahore High Court, Lahore dismissed his revision petition (Civil Revision No. 438 of 2005) in limine.

2. The petitioner/defendant purchased the suit land measuring 18 marlas, vide Mutation No. 6110 dated 24-11-1998 for a consideration of Rs. 80,000, whereupon the respondent/plaintiff filed a suit for possession through pre-emption, inter alia, pleading that he has a superior right of pre-emption, being Shahfi Sharik, Shahfi Khalit and Shahfi Jaar and that he fulfilled requisite Talbs. The petitioner/defendant resisted the suit, thereby controverting the contents of the plaint, which led to framing of issues and the parties were put to trial. The learned trial Court after recording evidence of the parties dismissed the suit on account of non-fulfillment of Talbs, vide judgment and decree dated 26-7-2004, however, respondent's appeal was allowed by the learned first appellate Court, when it reversed the findings of the learned trial Court and decreed his suit, vide judgment and decree dated 23-12-2004. Petitioner's revision petition (Civil Revision No.438 of 2005) was dismissed by the learned High Court, vide impugned order dated 14-3-2005, hence the present petition.

3. We have heard learned counsel for the parties and examined the available record. The respondent, being plaintiff, in para 4 of the plaint stated, that as soon as he came to know that the petitioner purchased the disputed land, he immediately made Talb i-Muwathibat in presence of the witnesses and thereafter on 16-3-1999 in presence of two truthful witnesses sent notice of Talb-i-Ishhad through "Registered Post Acknowledgment Due" to the defendant, who in his written statement specifically pleaded that the respondent did not perform Talbs according to law, while para 4 of the plaint, as noted above, was not admitted. On the said controversy issue No.1 was framed and to our mind prime controversy between the parties at this stage is as to whether the respondent fulfilled the requirements of performance of Talb-i-Ishhad. The petitioner in the written statement as well as in his statement, while appearing as D.W.1, categorically denied to have received the notice of Talb-i-Ishhad. The respondent produced three witnesses, including himself, who inter alia stated that they went to the Advocate, notice of Talb-i-Ishhad was got scribed from Clerk of the Advocate and the respondent went to dispatch the said notice. All the witnesses stated that notice of Talb-i-Ishhad was sent to the petitioner but none of them deposed that the said notice was either received or got served upon him, who as noted above, specifically denied to have received the said notice. It may be noted that the notice was exhibited in the statement of the' plaintiff, while postal receipt was produced by the learned counsel in his own statement which was exhibited, as Exh.P-2. The petitioner and his witness (D. W.2) stated that no notice was sent to him. Under the circumstances, it was incumbent upon the respondent, being the plaintiff, to prove service of notice upon the petitioner/ defendant, more so, when there was no acknowledgment of the said notice available on record. It is true that the respondent through production of witnesses amply proved that notice of Talb-i-Ishhad was sent to the petitioner, but it is equally true that it was not proved on record that in fact the same was served upon the former, inasmuch as, it was not brought on record that he refused to accept/ receive the notice. Under the circumstances, it was the duty of the respondent to have at least produced the postman, through whom notice was allegedly got served upon the petitioner, to prove that notice was actually sent to him at the right address and he received or refused to receive the said notice.

4. This Court in the judgment reported as "Muhammad Bashir v. Abbas Ali Shah (2007 SCMR 1105)" inter alia held that notice of Talb-i-Ishhad must be served on the vendee and the service of the addressee as prescribed in law is imperative and if the acknowledgement due carries an endorsement of `refusal' or `not accepted' a presumption of service would arise unless rebutted and if the addressee makes a statement on oath denying the service, then the onus to prove would be on the party relying upon such notice. It has further been held that if service of notice was denied by the vendee, then it was for the pre-emptor to prove service of notice by producing Postman, who allegedly made the endorsement. In the present case neither the service of the petitioner was effected as required under the law, nor any acknowledgment due carrying an endorsement of 'refusal' or 'not accepted' was produced in evidence. Present case is on better footing as in this case the plaintiff failed to produce any evidence to show that the defendant was' served with a notice of Talb-i-Ishhad or that he refused to accept the notice, in as much as, acknowledgment due was not placed on record. Under the circumstances, to our mind it was imperative for the plaintiff, in order to succeed in the suit for pre-emption, to produce evidence, including the Postman, to prove that in fact notice was served upon the petitioner or that he refused to accept the notice, which was sent at his correct address. We find that the learned High Court dismissed petitioner's revision petition primarily on the ground that, "a plaintiff is not required to produce the acknowledgment due receipt as the only requirement is that of sending of notice through registered post acknowledgment due. The plaintiff is not required to establish on record that the said notice has been received by the .vendee and its acknowledgment receipt was also received by the plaintiff after its service on the vendee". The said findings are not in consonance with the law on subject, inasmuch as, those were rendered contrary to the law laid down by this Court in the case of Muhammad Bashir (ibid):

5. In the above perspective, we have examined the impugned judgment and found that petitioner's revision petition was dismissed in complete oblivion of the record of the case, which amply shows that notice of Talb-i-Ishhad was not served upon him and it was also contrary to the principles declared by this Court in the case of Muhammad Bashir (supra), thus we are persuaded to set it aside.

6. In view of the above, the present petition is converted' into appeal, allowed and the judgments passed by the learned High Court and the learned first appellate Court dated 14-3-2005 and 23-12-2004, respectively are set aside and that of the learned trial Court is restored. No order as to costs. M.B.A./B-10/SC Appeal allowed.