1998 PLP 263 (MLD)

(1) Whether the plaintiff has got superior rights of pre-emption qua the defendant and had made the requirements of Talbs according to law? OPP. (2) Whether the ostensible sale price of Rs.20,000 has been fixed and actually paid in good faith? OPD. (3) If the above issue is not found in affirmative, then what is the market value of the suit property? OP Parties. (4) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD. (5) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD. (6) Whether the defendant is entitled to recover incidental expenses from the plaintiff, in case, the suit is decreed as prayed for? OPD. (7) Relief.

3. The parties produced their evidence. The trial Court held that Talb-i- Muwathibat was not established and Talb-i-Ishhad was made beyond the statutory period of two weeks from the knowledge of the petitioner/pre-emptor. Retying on the copy of Jamabandi Exh.D-1 the trial Court held that the vendee defendant was also a co-sharer in the Khata. Issue No. 1 was decided against the petitioner/pre-emptor in the terms that neither he had made the Demand according- to section 13 of the Punjab Pre-emption Act, 1991 nor he had the superior pre-emptive right. Issues Nos.2 and 3 were decided to the effect that the sale price of the suit land was Rs.20,

000. In the light of the findings on Issue No.l the trial Court expressed that the pre-emptor had failed to establish the demand of pre-emption through Talb-i-Muwathibat and Talb-i-Ishhad in whose favour there was no cause of action to institute the suit. It was held that issues Nos.5 and 6 had become redundant. Consequently the suit was dismissed.

4. Feeling aggrieved the petitioner/pre-emptor filed the appeal before the District Judge which was dismissed on the reasoning that there was no satisfactory evidence about the fact that the plaintiff had proclaimed his intention to pre-empt the sale immediately on coming to know of the fact of sale and that the notice Exh.P-1 was sent to the vendee-defendant beyond the statutory period of twos weeks. Holding that the plaintiff did not make the Talbs as laid in section 13 of the Punjab Pre-emption Act, 1991, the District Judge held that the pre-emption right, if any, of the pre-emptor stood extinguished. Consequently the appeal was dismissed. Hence this revision petition which is at motion stage.

5. I have heard the learned counsel for the petitioner who canvassed before me that the trial Court has not been able to dispose of the controversy in its true perspective. He canvassed that immediately on coming to know about the sale under pre-emption Dost Muhammad petitioner proclaimed about the purchase of land by the exercise of his right of pre-emption who also sent the notice within two weeks. He added that the Talb-i-Muwathibat and Talb-i-Ishhad were properly established and the suit could proceed. I do not agree with him. The matter has been properly dissected and analysed by the lower Appellate Court. Matta Khan P.W.1 stated that on the second day of the attestation of mutation of sale in favour of the vendee (on 22-1-1992) he accompanied Dost Muhammad pre-emptor to the vendee Khizar Hayat when he expressed his desire to purchase the property on the basis of his right of pre-emption. However, Dost Muhammad pre-emptor P.W.2 expressed his inability during the course of his cross-examination as to how many days after the attestation of the mutation under pre-emption had gone to the vendee for showing his desire to purchase the property on the basis of his right of pre-emption. There is nothing in his statement to make out that he made the Talb-i-Muwathibat immediately on coming to know about the sale under pre-emption. Fateh Khan P.W.3 deposed in the same terms as stated by Matta Khan P.W.1. However, they have not been supported by the pre-emptor himself in this regard who did not make the Talb-i -Muwathibat. It is also not a case of Talb-i-Ishhad. Notice Exh. P-1 is dated 17-5-1992. The mutation under pre-emption was sanctioned on 22-1; 1992. According to P. W.1 and P. W.3 Talb-i-Muwathibat was made on the second day of the mutation and, thus, on 22-1-1992. Computing the time from 22-1-1992 notice Exh.P-1 about Talb-i-Ishhad having been sent on 17-5-1992 was beyond the statutory period of two weeks. Hence I hold that in terms of section 13 of the Punjab Pre-emption Act, 1991 the demand of pre-emption was not made by Dost Muhammad pre-emptor who has no legal right to institute the suit for possession by pre-emption regarding the disputed land. The impugned judgments and decrees are held to be unexceptional. Consequently, I affirm the findings of the lower Courts on the aforesaid controversy. No other argument was addressed before this Court by the learned counsel for the petitioner.

6. For what has been said above, I dismiss this revision petition in limine. A.A./D-9/L Revision dismissed.