2014 PLP 774 (YLR)

ABDUS SATTAR ASGHAR, J.

This Civil Revision under section 115 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 15-12-2008 passed by learned Civil Judge 1st Class Pakpattan Sharif whereby suit for possession through pre-emption lodged by respondent Mian Abdul Karim (now deceased and represented by legal heirs) was decreed in his favour against the petitioners. It also assails the judgment and decree dated 8-10-2009 passed by learned Additional District Judge Pakpattan Sharif whereby petitioners' appeal was also dismissed.

2. The learned trial Court in its impugned judgment observed that Mian Abdul Karim pre-emptor having superior right of pre-emption has established the lawful performance of Talb-e-Muwathibat and Talb-e-Ishhad in terms of section 13 of Punjab Pre-emption Act, 1991. The learned appellate court after re-examining the evidence maintained the findings of the learned trial Court.

3. Learned counsel for the petitioners has argued that Mian Abdul Karim pre-emptor failed to prove Talb-e-Muwathibat and Talb-e-Ishhad by producing reliable ocular and documentary evidence; that the findings of the learned trial Court are illegal, based on misreading and non-reading of evidence; that the learned appellate court also failed to scrutinize the parties' evidence and mainly depended on the findings of the learned trial Court instead of applying its own judicious mind; that the impugned judgments and decrees passed by learned courts below are untenable and liable to be set aside.

4. It is resisted by learned counsel for the respondents with the contentions that respondents' predecessor Mian Abdul Karim pre-emptor has established his preferential right of pre-emption qua the petitioners and lawful performance of Talb-e-Muwathibat and Talb-e-Ishhad in terms of section 13 of Punjab Pre-emption Act 1991; that minor and immaterial discrepancies in the statements of P.Ws. do not mar credibility of the respondent's evidence; that concurrent findings of the learned courts below based on salutary appreciation of the evidence need not to be interfered with in exercise of revisional jurisdiction; that the impugned judgments and decrees do not suffer from any factual or legal infirmity or material irregularity therefore petitioners have no case to invoke the revisional jurisdiction of this Court.

5. Arguments heard. Record perused.

6. At the outset if may be expedient to reproduce the provision of section 13 of Punjab Pre-emption Act 1991 for ready reference which reads below:-- "

13. Demand of pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely- (a) 'talb-i-muwathibt'; (b) 'talb-i-ishhad'; and (c) 'talb-i-khusumat'. Explanation.

I 'Talb-i-muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note:- Any words indicative of intention to exercise the right of pre-emption are sufficient. II 'Talb-i-ishhad' means demand by establishing evidence. III 'Talb-i-khusumat' means demand by filing a suit. (2) When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make talb-i-muwathibat. (3) Where a pre-emptor has made talb-i-muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make talb-i-ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of talb-i-muwathibat under subsection (2) and talb-i-ishhad under the subsection (3), he shall make talb-i-khusumat in the court of competent jurisdiction to enforce his right of pre-emption."

7. As regards Talb-e-Muwathibat bare reading of the averments in the plaint transpires that respondent Mian Abdul Karim (deceased) has categorically mentioned that he got the knowledge of the impugned sale on 2-10-1999 through Allah Ditta at his residence situated at Haveli Lakha Tehsil Depalpur when he immediately pronounced his intention to pre-empt the sale as Talb-e-Muwathibat. He reiterated so while appearing in the witness box as P.W.6. Allah Ditta alleged informer appeared in the witness box as P.W.4 and fully corroborated the case of the pre-emptor as regards date, time and place of imparting the information to Abdul Karim as well as immediate performance of Talb-e-Muwathibat by the pre-emptor.

8. It is vehemently argued by learned counsel for the petitioners that as per averments in the plaint Talb-e-Muwathibat was made by the pre-emptor in the presence of informer only and no third person in the said meeting was present and that presence of alleged informer and pre-emptor does not constitute lawful sitting or meeting (Majlis) as envisaged under section 13(1) of the Act ibid. I am afraid learned counsel for the petitioners is misconceived. The word 'meeting' is defined in Oxford Advanced Learner's Dictionary New 8th Edition as "a situation in which two or more people meet together because they have arranged it or by chance". In the said Dictionary the word 'sitting' is defined as "a period of time that a person spends sitting and doing an activity". The words sitting or meeting (Majlis) used in section 13(1) Explanation I of the Act ibid do not require a group of more than two persons. Bare reading of the provision of section 13(1) Explanation I of the Act ibid makes it crystal clear that law did not require physical presence of any witness besides the informer and the pre-emptor at the time of performance of Talb-e-Muwathibat. Meeting of informer and pre-emptor comprising two persons is sufficient within the meanings of sitting or meeting (Majlis) to perform Talb-e-Muwathibat in terms of section 13(2) of the Act ibid. Needless to say that requirement of Talb-e-Muwathibat is immediate (jumping) demand by the pre-emptor without delay on receiving information of the impugned sale. It does not require assembling or gathering of more than two persons. Certainly pre-emptor is not required to make any resort to collect a group of more than two persons to make Talb-e-Muwathibat after receiving knowledge of the impugned sale from the informer. Needless to say that in the provision of section 13 of the Act ibid the scheme of legislation has prescribed the presence of two truthful witnesses at the stage of making of Talb-e-Ishhad and not at the stage of Talb-e-Muwathibat. In the attending circumstances, argument of the learned counsel for the petitioners that in this case Talb-e-Muwathibat was not performed in a lawful manner is devoid of any force and thus repelled.

9. As regards Talb-e-Ishhad pre-emptor has categorically alleged in para No.7 of the plaint that notices of Talb-e-Ishhad were got scribed and sent to the petitioners through registered post A.D. receipts on 8-10-1999 in presence of truthful witnesses namely Allah Ditta, Ahmad Din and Muhammad Ahmad. Petitioners have denied the receipts of notices of Talb-e-Ishhad through post. In order to discharge the burden of proof respondent/pre-emptor produced Muhammad Islam postman (P.W.1) who categorically stated that while posted at Post Office Chak Baidi he received registered Post No.672 dated 11-10-1999 and disbursed the same upon Ghulam Muhammad petitioner No.1 on 13-10-1999. Simultaneously Ghulam Qadir postman (P.W.3) deposed that he had received registered Post No.670 on 10-10-1999 which was disbursed by him upon Muhammad Anwar (petitioner No.2) on 12-10-1999. Allah Ditta (P.W.4) and Ahmad Din (P.W.5) the alleged witnesses of the notices of Talb-e-Ishhad while appearing in the witness box categorically stated that on 8th day of 10th month they had accompanied the pre-emptor to the deed-writer and got scribed two notices Exh.P-4 and Exh.P-5 bearing their thumb-impressions and signatures which were sent to the petitioners by Abdul Karim pre-emptor through registered post. Despite lengthy searching cross-examination nothing material elicited in favour of the petitioners. Learned counsel for the petitioners has not been able to point out any material inconsistency in the testimonies of the said P.Ws. with regard to performance of Talb-e-Muwathibat and Talb-e-Ishhad. There is nothing on the record to mar the credibility or truthfulness of the said P.Ws.

10. Crux of above discussion is that the petitioners have failed to establish that the impugned judgments and decrees passed by learned courts below suffer from misreading or non-reading of evidence. Concurrent findings of facts recorded by the learned courts below on the basis of salutary appreciation of evidence do not call for any interference by this Court in exercise of its revisional jurisdiction. I do not find any legal or factual infirmity or jurisdictional error in the impugned judgments and decrees.

11. For the above reasons, this Civil Revision having no merit is dismissed. JJK/G-43/L Petition dismissed.