2016 PLP 1438 (CLC)

SHAHID BILAL HASSAN, J.

On 30.06.1997 Manzoor Subhani entered into an agreement of sale with Asif Baig (Predecessor of petitioners Nos.1 to 3) and Mst. Gulshan Baig (Petitioner No.4) germane to land measuring 02 kanals falling in Khasra No.173, Khata No.120/292 and 32/164, Khasra No.172, Khata No.172/326, Revenue Estate Kotli Behram, Sialkot. The sale price was Rs.20,00,000/-, which was paid through cheque; later on mutation of sale No.1633 was attested on 24.07.1997, but sale was cancelled because it was recorded in violation of section 42 of the Land Revenue Act, 1967 and subsequent mutation No.1657 was attested on 28.08.1997. Being aggrieved of the said transaction, the deceased respondent Asif Baig/ plaintiff instituted a suit for possession on the basis of pre-emption, which was subsequently decreed vide impugned judgment and decree dated 12.04.2005 subject to payment of Rs.20,00,000/-.

2. The petitioners preferred appeal challenging the impugned judgment and decree, whereas deceased respondent/plaintiff namely Hafiz Ghafoor Ahmed agitated the matter in appeal regarding value of the land. The learned Appellate Court vide impugned judgment and decree dated 06.11.2006 dismissed appeal of the appellants/vendees and accepted the appeal of respondent(s)/plaintiff(s), reducing the sale price from Rs.20,00,000/- to Rs.100,000/- only.

3. Feeling aggrieved of said judgments and decrees, the instant regular second appeal has been filed by the appellants/vendees.

4. Reiterating the grounds urged in this memorandum of appeal, the learned counsel for appellants has further argued that respondent/ plaintiff has failed to establish performance of Talbs in accordance with law and this issue has not been taken up in a proper sense. Contends that service of addressee has not been proved by the plaintiff as per mandate of law. He has submitted that plaintiff is not co-owner or co-sharer of the suit land as is evident from Ex.P

8. Further submits that learned appellate Court has erred while reducing the amount from Rs.20,00,000/- to Rs.100,000/-. States that pre-emption suit does not lie in urban areas. Adds that proper issues have not been framed by learned trial Court. Lastly prays that by accepting the appeal in hand, impugned judgments and decrees may be set aside and suit of the respondent/ plaintiff may be dismissed. Relies on Mehr Din (represented by his Legal Heirs) v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1), Muhammad Hussain and others v. Ghulam Qadir through Legal Heirs (PLD 2006 Supreme Court 594), Muhammad Shafi v. Muhammad Ayub and another (2006 CLC 556-Lahore), Muhammad Bakhsh v. Zia Ullah and others (1983 SCMR 988), Muhammad Fazal v. Kaura through Legal Heirs (1999 SCMR 1870), Ghulam Muhammad v. Sabir Hussain and others (2004 SCMR 999), Jangi v. Jhanda and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 34), Qudratullah v. Ghulam Jan and others (PLD 1966 (W.P.); Peshawar 85), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others (2013 SCMR 178), Munawar Hussain and others v. Afaq Ahmed (2013 SCMR 721), Muhammad Akram alias Raja v. Muhammad Ishaque (2004 SCMR 1130), Muhammad Ashiq Khan v. Muhammad Sharif and 5 others (2014 YLR 767 Lahore) and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 Supreme Court 82).

5. Gainsaying the above submissions learned counsel representing the respondent(s)/plaintiff(s), by favouring the impugned judgments and decrees has prayed for dismissal of the appeal in hand.

6. Heard.

7. To succeed in a suit for possession on the basis of pre-emption, it is required to prove the performance of all the following Talbs in accordance with law, under Section 13 of the Punjab Pre-emption Act, 1991, failing which the same results fatal to the pre-emptor's case: (i) Talb-e-Muwathibat. (ii) Talb-e-Ishhad. (iii) Talb-e-Khusumat.

8. It is evident from the record made available before this Court as well as impugned judgments that the respondent/plaintiff's P.Ws. remained consistent regarding performance of Talb-i-Muwathibat, so the findings of the learned Courts below on this point are according to the evidence. Correct appreciation of evidence has been made by learned Courts below on this score, so the findings of the learned Courts below to this extent do not call for any interference.

9. By putting both i.e. impugned judgments and evidence of the parties in juxtaposition, it transpires that evidence of the parties has not been thoroughly appraised while recording the judgments by learned Courts below with regards to Talb-i-Ishhad.

10. It is admitted on record that when the petitioners have specifically denied the receipt of any notices of Talb-i-Ishhad, it was imperative upon the respondent(s)/plaintiff(s) to prove the dispatch and delivery of notices to the petitioners. Though the respondent(s)/ plaintiff(s) produced postman as P.W.2, yet it is evident from his deposition that Ex.P3 and Ex.P4 (alleged envelopes containing notices of Talb-e-Ishhad) were handed over to him and he went to effect service of the vendees/defendants, but one Khalid Baig told him that vendees/ defendants were not residing there, so he returned the envelopes by making reports; meaning thereby service of the addressees of notices was not effected in accordance with law. Therefore, the findings of learned Courts below on this talb are not as per mandate of law on the subject, so the learned Courts below have failed to appreciate the development with regards to performance of Talb-i-Ishhad and have misconstrued and misinterpreted law on this score, so by placing reliance on Bashir Ahmed (2011 SCMR 762), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866) and Dayam Khan and others v. Muslim Khan (2015 SCMR 222), the findings of the learned Courts below pertaining to performance of Talb-i-Ishhad being not in consonance with the mandate of law, are not sustainable and are not entitled to hold field anymore; same are reversed.

11. Even non-performance of one of the Talb in accordance with law is fatal to the pre-emptor and when the respondent(s)/plaintiff(s) has failed to fulfill the requisite performance of Talb-i-Ishhad as per mandate of law, he is not entitled to any decree for possession through pre-emption. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others (PLD 2005 Supreme Court 977).

12. Pursuant to above discussion, both the learned Courts below have failed to exercise jurisdiction vested in them in a proper way and material illegality and irregularity has been committed, warranting interference by this Court in exercise of revisional jurisdiction; resultantly, while placing reliance on the judgments supra, the present appeal is allowed, impugned judgments and decrees dated 12.04.2005 and 06.11.2006 passed by learned trial Court as well as learned Appellate Court, respectively are set aside and suit of the respondent(s)/ plaintiff(s) is dismissed.

13. No order as to costs. ZC/S-38/L Appeal allowed.