2002 PLP 1654 (YLR)

(1) Whether the suit is benmai and has been filed for the benefit of other persons? If so, with what effect? OPD (2) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD (3) Whether the plaintiff has right of pre-emption qua the vendee/ defendant? OPP (4) Whether the plaintiff made necessary Talbs in accordance with law prior to enforce his right of pre-emption? OPP (5) Whether the plaintiff has necessity of suit-land and he shall suffer an irreparable loss if the same is not returned to him? OPP (6) Whether the ostensible sale price of Rs.1,10,000 was bona fide fixed and actually paid? OPD (7) If above issue is proved then what was the market value of the suit-land at the time of its sale? OP Parties. (8) Relief."

2. The plaintiff appeared as P.W.1 and produced P.W.2, Muhammad Akhtar Patwari, P.W.3 Karamat and P.W.4 Muhammad Ashiq. He made a supplementary statement in rebuttal and produced documentary evidence in the shape of notice (Exh.P.1), receipt of the, post office (Exh.P.2), chart showing five years average sale price (Exh.P.3), Jamabandi for the year 1988-89 (Exh.P.4) and a copy of the sale deed (Exh. P.5) and closed his evidence. On the other hand, the respondent appeared as D.W.1 and produced Muhammad Aslam as D.W.2 and closed his evidence: After hearing the learned counsel for the parties and perusing the material on the record the trial Court decrees the suit vide judgment and decree, dated 29-11-1993 subject to payment of Rs.1,10,000 by the pre-emptor/petitioner. The respondent preferred an appeal which was allowed by the learned District Judge, Sialkot vide his judgment, dated 2-3-1994 holding that the petitioner did not make "Talb-e-Muwathebat' in accordance with law.

3. The petitioner's learned counsel contends that the Appellate Court had erred in law in holding that the requirement of 'Talb e-Muwathebat' was not fulfilled by the petitioner. In this connection he points out that the petitioner had learnt about the sale in the village on 20-8-1992 and immediately announced his intention to pre-empt the land in the presence of Karamat (P.W.3) and Ashiq Hussain (P.W.4). He affirmed it in his subsequent notice sent to the respondent regarding "Talb-e-Ishhad'. Further submits that the petitioner's evidence shows that he was eager to purchase the disputed land and for that reason filed a suit and obtained a stay order against the registration 'of the sale-deed and on coming .to know the factum of sale had made "Talb-e-Muwathebat' regarding his intention to purchase the suit-land. He submits that even if the petitioner had learnt about the sale transaction at the Court premises on 20-8-1992 and made 'Talb-e- Muwathebat' in the village still it would be deemed to have been made in the same 'Majlis'. He adds that the Court should not consider merely the words/views of the pre emptor but also see his conduct. According to the learned counsel the cumulative effect of his statement is that he is keen and genuinely interested to purchase the suit-land. In this connection he relies on the case of Tokh Narain Puri v. Ram Bachhya Singh (AIR 1925 Patna 743). The petitioner needed some time to ascertain as to whether the sale had already taken place and for that reason he had directly gone to the vendor/defendant. 'In this behalf, reference was made to Article 528-D(4) of Tayyab Jee Muhammad Law. Also relies on the case of Zafar Ali v. Zainul Abidin (1992 SCMR 1886).

4. On the other hand, learned counsel for the respondent submits that the petitioner had failed to fulfill the requirements of "Talb -e-Muwathebat'. The petitioner/plaintiff had come to know about the sale on 18-8-1992 and even his own witness Ashiq (P.W.4) admitted that he as well as the plaintiff go the knowledge about the sale on the very day when the sale-deed was registered. A similar statement was made by the petitioner/ plaintiff, therefore, making of 'Talb-e- Muwathebat' on 20-8-1992 was not prompt as required under the law. Further submits that the judgment in the case of Zafar Ali (Supra), relied upon by the petitioner's learned counsel does not help him because reasonable time, which may be allowed to the pre emptor is only till the end of 'Majlis' in which he gets the information about the sale transaction. In support of his contention, relies on the following judgments:-- Ikramud Din and others v. Ghulam Ahmad Khan and others (1995 MLD 1689); Gul Hussain Shah v. Mulazim Hussain Shah (1996 SCMR 294); Akbar Khan v. Pehlwan (1996 MLD 1415) and Abdul Sattar and others v. Muhammad Ramzan and others PLD 1999 Lahore 470.

5. There is considerable weight in arguments raised by the respondent's learned counsel. In his own statement as P.W.1 the petitioner stated that he learnt about the impugned sale on 20-8-1992 at the premises of District Court Sialkot and thereafter announced in the village in the presence of the respondent on 20-8-1992 to pre-empt the land. The declaration of his intention .was obviously not made in the same Majlis at the District Courts premises, Sialkot. The evidence on the record also shows that the petitioner had learnt about this sale on 18-8 1992 when he filed a suit to resist the respondent's move to have the sale-deed registered. In this connection he admitted in his cross-examination: He obtained the stay order but the sale-deed was registered before it was conveyed to the Sub-Registrar. Upon this the petitioner filed a contempt petition against the respondents on 19-8-1992. The petitioner's own witness P.W.4 Muhammad Ashiq also stated that the petitioner had tiled a suit on 18-8-1992 to obtain a stay order against the registration of the sale-deed. He also admitted: This admission does not pertain to the bargain but is clearly indicative of the sale, which was to be got registered on 18-8-1992. In this view of the matter, it is crystal clear that the petitioner had learnt about the impugned sale on 18-8-1992 but failed to make Talb-e -Muwathebat promptly as required under the law. Even if it is believed that he learnt about the sale transaction on 20-8-1992, he still failed to make Talb-e-Muwathebat in the same Mailis at District Court premises Sialkot. He appears to have taken some time m going to the village and then made the Talb-e-Muwathebat at the village. The time consumed for going from the Court premises to the village cannot be condoned. it militates against his claim of having made Talb-e Muwathebat in the same Majlis. The circumstances of the present case do not leave any manner of doubt that the petitioner had definitely learnt about the sale transaction on 18-8-1992 at the Court premises and there was nothing to prevent him from making the Talb immediately in the same Majlis. Thereafter, he could avail of time to ascertain the other facts relating to the sale including the Khasra numbers etc. of the land and the sale price shown in the sale-deed so as to enable him to make Talb-e-Ishhad within the stipulated time. The judgment in the case of Zafar Ali is not of any help to the petitioner. In the said precedent the plaintiff was non suited because he did not promptly make Talb-e-Muwathebat in the same Majlis in which he had learnt about the sale. The Hon'ble Supreme Court noted that the plaintiff had learnt about the sale mutation on 12th or 13th of August, 1988, obtained a copy of the mutation and sent notices to the vendees on 16-8-1988 and had shown his intention to pre-empt the suit-land on the same day. The Court was pleased to hold "the petitioner ought to have made Talb-e -Muwathebat without loss of any time on 12th or 13th of August, 1988 when he learnt about the sale transaction but he admittedly made it on 15th August, 1988 and as such there is no escape from the conclusion that Talb-e -Muwathebat was not made in accordance with the provision of section 13 of the Act. This omission is indubitably fatal to the petitioner's claim of pre-emption." So far as the question of supplementing knowledge about the sale transaction is concerned, the Hon'ble Supreme Court has made it clear in this judgment that further details about sale may be obtained in the same Majlis or at the same occasion when information about the sale is received. However, as discusses above, in the present case, the petitioner had learnt about the sale transaction on 18-8-1992 and did not make Talb-e-Muwathebat on the said date. Even if his claim that he had learn about the sale at District Court premises, Sialkot on 20-8-1992 is accepted, still, he did not make Talb-e-Muwathebat in the same Majlis and took his good time to go to the village and then belatedly declared his intention to pre-empt the land. Therefore, the Courts below have rightly held that the petitioner did not make Talb-e-Muwathebat in accordance with the law.

6. For the foregoing discussion, do not find any merit in this revision petition which is dismissed leaving the parties to bear their own costs. Revision dismissed. Q.M.H./M.A.K./M-1203/L