2009 PLP 521 (MLD)

MAULVI ANWARUL HAQ, J.

This judgment shall decide C.R. No. 477 of 2005 and C.R. No.809 of 2005 as these proceed against a common judgment.

2. Vide registered sale-deed, dated 18-8-1998 the petitioners (Israr Ahmad, etc.) purchased the suit-land for a consideration of Rs.5,40,

000. On 31-10-1998 the respondents filed a suit for possession of the said land by pre-emption. According to them, the land has been actually sold for Rs.1,50,

000. They claimed to be Shafi Sharif, Khalit and Jar. Performance of talbs was pleaded. The suit was contested by the petitioners. They specifically pleaded that the talbs have not been made; that three of the vendees were abroad and were never contacted nor served with any notice. The other allegations were denied. The learned trial Court framed the following issues:-- (1) Whether plaintiffs have not complied with Talbs according to law? OPD. (2) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD (3) What was the market value of the suit property? OP Parties. (4) Whether the plaintiffs have got superior right of pre-emption? OPP (5) Relief. Evidence of the parties was recorded. Vide judgment and decree, dated 20-5-2004 the suit was dismissed. I may note here that under issue No.1 it was found that the talbs have not been performed. Issue No.2 was stated to have not been proved. Issue No.3 was answered in favour of the plaintiffs although the issue as discussed shows otherwise. Under issue No.4 it was observed that superior right stands extinguished because of non-performance of talbs. A first appeal filed by the respondents was heard by a learned ADJ, Rawalpindi. Vide judgment and decree, dated 23-4-2005 the learned ADJ allowed the appeal and decreed the suit subject to deposit of Rs.5,40,

000. According to him, all the requisite talbs have been duly performed and the respondents had a superior right of pre-emption.

3. Mr. Muhammad Ilyas Sheikh, Advocate/learned counsel for the petitioners-vendees contends that production of the alleged informer i.e. Tractor Driver was necessary. He relies on the case of Muhammad Zafrullah Khan, and others v. Hasan Muhammad, and others PLD 2004 Lah.

43. Further argues that it is established on record that the notices never reached the petitioners who were, admittedly, abroad at the relevant time and at to the extent of one vendee even the envelop was returned back undelivered. He cited the cases of Abdul Qayyum v. Muhammad Rafique (2001 SCMR 1651) and Ikram-ud-Din and others v. Ghulam Ahmad Khan and others -(1995 MLD 1689) to urge that in the said circumstances it cannot at all be assumed that Talb-i-Isshad has been made. Mr. Muhammad Younis Bhatti, Advocate/learned counsel for the respondents on the other hand contends that since the witnesses of the Majlis were examined, there was no need to produce the informer. Relies on the case of Sikandar Khan and 6 others and others v. Muhammad Nawaz and 2 others 2004 YLR

865. Further argues that since the postal receipts evidencing the posting of the' notices to the vendees have been produced, it shall be assumed that these reached the vendees. Syed Aftab Ahmad, Advocate/learned counsel for the pre emptors/petitioners in C.R. No.809/05 argues that the learned trial Court had answered issue No.3 in favour of the pre-emptors but the learned ADJ without examining the said findings has directed deposit of Rs.5,40,

000. Mr. Muhammad Ilyas Sheikh Advocate, opposes the said contention with reference to the entire contents of the discussion recorded under issue No.2 and he urges that, in fact, the finding was that the market value is not less than the price paid for the land under the registered document.

4. I have gone through the copies of the records, appended with both these civil revisions. It will be seen that the primary contest is on the point of Talb covered by issue No.1. In para-4 of the plaint it was stated that on 24-9-1998 at 7-00 a.m. one Muhammad Zahoor told that some unknown Tractors Driver attempted to plough the land. Muhammad Zahoor informed the petitioners. They along with Manzoor Hussain went to the suit-land and inquired from the Tractor Driver as to why he wants to plough the land. The Driver disclosed that the land has been purchased by the respondents vide registered document whereupon the respondents made the first talb. Out of the two petitioners, Mumraiz Khan appeared as P.W.3. He is also attorney and uncle of Imran Sabir respondent No.2. Unlike the pleading in the plaint that when the driver declared that the land has been purchased by the petitioners by a sale-deed registered on 18-9-1998, they immediately made the first Talb, the P.W.3 states that they confronted the Tractor Driver. He told them that Raja Afzal had left him there and he has purchased the land whereupon the witness called upon the Tractor Driver to show some evidence and the Tractor Driver handed over copy of the registered sale-deed to P.W.3. This was read by both the petitioners and he came to know that the land has been purchased by the sons of Raja Afzal and his brother-in-law whereupon the witness told his father that the land had been sold one month ago and he will file a pre-emption suit and Imran Sabir also made the Talb. Manzoor Hussain who is the father of respondent No.1 and uncle of respondent No.2 is P.W. He states that when the Tractor Driver handed over the sale-deed and Mumraiz read, he told Imran Sabir that he will file a pre-emption suit. Muhammad Zahoor D. W.2. has a different story to tell. According to him, after going through the copy of the sale-deed, both the respondents consulted Manzoor (P.W.1) and then Mumraiz made the Talb and Imran followed.

5. Having, thus, examined the evidence as to Talb-i-Muwathibat, do find that although it would not be necessary to produce the Tractor Driver as the proceedings took place in presence of witnesses who were produced but the respondents themselves have walked out from their pleadings in the plaint and both the other witnesses have made discrepant statements which do not tend to corroborate the basic statement made in the plaint.

6. So far as Talb-i-Ishhad is concerned, it has been stated in para.5 of the plaint that the respondents went to Ch. Tariq Mahmood Babar, Advocate and got a notice drafted. They brought the notice to the village and signed it and also got it signed by the witnesses and they sent the notices to all the four vendees on 25-9-1998 under registered cover A.D. It was stated that the notices were served upon the petitioners Nos. 1 to 3 and A.Ds. came back while the notice sent to the petitioner No.4 was received back undelivered. P.W.6. is Raja Muhammad Rasalat Postmaster. According to him, he was Postman in September, 1998 and took the envelop Exh.P.4 with A.D. receipt Exh.P.l1 but it was returned that the addressee is abroad and he sent 11 back undelivered. Muhammad Afzal appeared as D.W.2. He is the special attorney of the petitioners. According to him, out of the vendees three are his sons who were in Germany and the 4th is his son-in-law who is in Italy. Mumraiz respondent is his sister's son and was fully aware of their address in Germany. He was confronted with the A. D. receipts with the suggestion that he had signed the same and received the notices and he denied: The petitioner No.1 and P.W. 3 has admitted that no notices were sent to the vendees at their foreign addresses. It has also been admitted that the sons of Muhammad Afzal did not use to reside with him. In these circumstances glaring on the face of the record, the learned ADJ has failed to read the evidence on record while reversing the findings of the learned trial Court with reference to the Talb-i-Isshad. The judgment in the case of Abdul Qayum fully supported the trial Court verdict in the matter.

7. The findings of the learned ADJ on the issue pertaining to Talbs are accordingly set aside and those recorded by the learned trial Court are restored.

8. So far as C.R. No. 809 of 2005 is concerned, as noted by me above, the learned trial Court has discussed under issue No.3 pertaining to the price/market value in para. 15 of its judgment. After referring to the statement of the patwari P.W.5 the learned trial Court has observed c that the suit-land is near to the road and Abadi area and its market value is more than Rs.1,00,000 per kanal. The last line of para-15 apparently is a clerical error whereby it has been observed that the issue is decided in favour of the plaintiff. Be that as it may I have examined the statement of the Patwari P.W.5 as also the evidence led by the respondent: Muhammad Ramzan is the vendor. He has appeared as D.W.1 and has stated that he received Rs.5,40,000 as price. The transaction had been effected by means of a registered document. Coming back to the statement of the Patwari, he has admitted that the suit-land is located near a road and is in Abadi area and as such its value is more than the average recorded by him. He has stated that market value of some land in the village is Rs.1,00,000 per kanal whereas in some area it is Rs.10,000 per kanal. Thus, in view of the admitted location of the land and going by the statement of the said Patwari and the other evidence available on record, it can be concluded that the price recorded in the registered sale-deed Exh.P.14 had in fact, been paid.

9. As a result of the above discussion, C.R. No.477 of 2005 is allowed while C.R. No.809/05 is dismissed. The result would be that the judgment and decree, dated 23-4-2005 of learned ADJ, Rawalpindi, shall stand set aside and the one passed by the learned trial Court on 20-5-2004 dismissing the suit of the respondents shall stand restored. No orders as to costs. H.B.T./I-44/L. Petition allowed.