1998 PLP 253 (MLD)

(1) Whether the suit is time-barred? OPD (2) Whether plaintiff has no locus standi to file this suit? OPD (3) Whether the plaintiff has no cause of action to file this suit? OPD (4) Whether the plaintiff is estopped to file this suit on account of his act and conduct? OPD (5) Whether the plaintiff has made demands (Talabs) as required by section 13 of Punjab Pre-emption Act, 1991? OPP (6) Whether the plaintiff has not superior right of pre-emption qua the defendant and is entitled to the decree as prayed for? OPP. (7) Relief.

3. The parties produced their evidence. Ch. Muhammad Hussain, Advocate, P.W.1 deposed about the despatch of notice Exh.P-1 to establish Talb-i-Ishhad. Nazeer Ahmad pre-emptor appeared as P.W.2 and stated that Muhammad Sarwar and Ghulam Nabi P.Ws. informed him that the suit property had been purchased by Aziz Ahmad and that immediately he proclaimed that he had the superior pre-emptive right and that he would institute the suit for possession by pre-emption. He continued that then he went to the house of Aziz Ahmad respondent and demanded the land from him who refused. He stated that thereafter, he took Ghulam Nabi and Muhammad Sarwar P. Ws. to Aziz Ahmad who refused to transfer the land in his favour and that thereafter he sent the statutory notice. He stated in his cross-examination that Muhammad Sarwar and Ghulam Nabi intimated him at 2-00 p.m. about the sale under pre-emption while he was driving the tractor in the land. He stated that he went to the house of Aziz Ahmad defendant on the 2nd day all alone and thereafter went to his Advocate for the despatch of the notice. Nabi Ahmad P.W.3 stated that he came to know about the sale under pre-emption which was brought to the notice of the plaintiff who proclaimed there and then about the right of pre-emption. He stated that thereafter a statutory notice was sent. It occurs in his cross examination that Nazeer Ahmad pre-emptor was his real brother, that he came to know about the sale under pre-emption during the month of February and that on the 5th they went to the defendant-vendee. Muhammad Sarwar P.W.4 stated that the plaintiff was aware about the sale under pre-emption and that in his presence the plaintiff did not proclaim about the Demand of Pre-emption. In rebuttal Aziz Ahmad vendee-defendant appeared as D. W-1 and denied the stand of the pre-emptor about the aforesaid Talabs as well as his right of pre-emption. After hearing the parties the trial Court held that Mutation No.6688 was attested on 9-1-1992 and the suit was instituted on 10-3-1993 i.e. within four months from the date of attestation of the mutation which was not barred by time. Issues Nos.2 to 4 were decided against the defendant for want of evidence. Issues Nos.5 and 6 were disposed of together. The trial Court held that Talb-i -Muwathibat was not proved by the petitioner whose right of pre-emption had extinguished. Consequently the suit was dismissed. The appeal was preferred. The Additional District Judge expressed in his judgment that in the plaint it was nowhere mentioned that on what date, time and place the pre-emptor made the Talb-i-Muwathibat was made in the Majlis. In his cross-examination Nazeer Ahmad pre-emptor P.W.3 stated that two months after the sale under pre- emption he came to know about the said fact. The lower Appellate Court referred to the statement of Muhammad Sarwar P.W.4 who deposed that in his presence Talb--i-Muwathibat was trot trade by the pre-emptor, The Appellate Court expressed that due to the non proof of Telb-i-Muwathibut, Talb-i-Ishhad has become immaterial in this ease that the superior right of pre-emption of the pre-emptor stroll extinguished Consequently the appeal was 415o dismissed: Hence this revision petition:

4. I have heard the preliminary arguments addressed by the learned counsel for the petitioner as the matter is at the motion stage: The train contention of the learned counsel fur the petitioner is that Talb-i-Muwathibat has been established by the petitioner through his plaint, his own statement a P.W.2 and the statement of Nabi Ahmad P.W

1. According to him it is a case of misreading of evidence by the lower Courts. I do not agree with him, Mohammad Sarwar P.WA has denied the factum of Talb-i--Muwathibat in clear terms and his statement is of no help to the petitioner. Nabi Ahmad P.W.3 stated that rte came to know about the sale under pre-emotion during the month of February (1992) and he intimated the pre-emptor, It occurs in the cross examination of Nazeer Ahmad P.W.2 that two months after the attestation of mutation of sale he came to know about the factum of sale whets he made the Talb-i-Muwathibat. The mutation was sanctioned on 9-1-1991 According to Nabi Ahmad P.W.3, real brother of the pre-emptor during the month of February, 1992 while according to the statement of Nazeer Ahmad pre-emptor P.W.2 he came to know about the sale during the month for March, 1997,his contradiction is enough to establish that Talb-I-Muwathibat was rat effected, Through the use of the weapon of cross-examination the respondent-vendee has succeeded in bringing the said assertion of the pre-emptor about Talb-I- Muwathibat to a lame conclusion. In this view of the matter there is no need to further proceed about making the analysis Talb-i-Ishhad said to have been made by the pre-emptor. The impugned judgments and decrees of the lower Courts are unexceptional. No irregularity has been found therein. The evidence has beets properly appreciated and the same do not suffer from any of the ingredients of section 115, Civil Procedure Code, Consequently I hold that there is no merit in this revision petition.

5. At this stage I am tempted to express that this revision petition has been filed beyond the period of 90 days. The lower Appellate Court passed the impugned judgment and decree on 13-12-1994. The petitioner filed the application on 13-3-1995 to get the certified copies of the impugned Judgment and decree of the lower Appellate Court. The same were prepared on 16-3-1995 and were delivered to the petitioner on 16-3-1995. This revision petition was filed on 26-3-1995. Civil Miscellaneous 2/C of 1995 has been filed by the petitioner under section 5 of the Limitation Act for condonation of delay. In the said application it is narrated that after obtaining the certified copies of the impugned judgment and decree the petitioner came to Lahore without wasting the time and that in case the delay was not condoned he shall suffer irreparable loss. In my view there is no ground for condoning the delay as contemplated under section 5 of the Limitation Act. In fact no sufficient reason/ground is mentioned in the application to grant the proposed, desired and required relief. The petitioner himself is aware that his revision petition is barred by time. There being no ground to condone the delay, the revision petition is also barred by time.

6. In the light of my aforesaid findings of facts with regard to Talb-i-Muwathibat, I hold that the right of pre-emotion of the petitioner-pre-emptor stands extinguished and the revision petition has no merit which is also barred by time.

7. I, therefore, dismiss this revision petition in limine.

8. This application for the grant of stay order under section 151, C.P.C. has become infructuous in view of the dismissal of the original revision petition in limine. Even otherwise the petition 'seems to be anomalous as the suit for possession by pre-emotion having been dismissed by the lower Courts. I am at a loss to understand as to for which purpose the impugned judgments and decrees of the lower Courts are required to be suspended. No prayer as to what type of stay order is required is contained. This application stands disposed of.

9. This is an application under section 5 of the Limitation Act for condonation of delay which has no merit in view of my reasoning and findings in the main revision petition and as such this petition stands disposed of. A.A./N-75/L Revision dismissed.