P L D 2012 Lahore 1 (PLP)

MUHAMMAD KHALID MEHMOOD KHAN, J.

Through this revision petition, the petitioner assailed judgment and decree dated 3-2-2007 passed by learned appellate court.

2. The petitioner filed a suit for possession through pre-emption against respondents qua the property detailed in the plaint. The petitioner asserted that he came to know about the pre-empted sale on 28-3-2002 at his house and he immediately announced to pre-empt the sale in the said Majlis. He further asserted that the actual price of land is Rs.1,40,000/- and respondents only to frustrate the right of petitioner to pre-empt the sale got it recorded as Rs.3,00,000/-. The respondents controverted the assertions of plaint and learned trial court out of divergent pleadings of parties framed the following issues:-- "ISSUES. (1) Whether the plaintiff has got superior right of pre-emption, qua the disputed property, vis-a-vis the defendant?-OPP (2) Whether the plaintiff has fulfilled the requirements of talbs? OPP (3) Whether the ostensible sale price has been fixed in good faith and actually paid? OPD (4) If the above mentioned issue is not proved in affirmative then what was the market value of the suit property, at the time of its sale? OPParties. (5) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD (6) Whether the plaintiff is estopped by his words and conduct? OPD (7) Whether the defendant is entitled to recover Rs.45,000/- as improvement expenses and Rs.18,000/- as incidental charges, in case the suit is decreed? OPD (8) Whether the suit is false and frivolous and liable to be dismissed with special costs u/s 35-A CPC? OPD (9) Relief.

3. Learned trial Court decreed the suit, whereas the appeal was allowed.

4. Learned counsel for petitioner submits that petitioner has proved his case beyond any shadow of doubt and learned trial Court has rightly passed the decree. The learned appeal Court has mis-read and non-read the evidence and wrongly set aside well reasoned judgment of learned trial Court. He further submits that Talbs have been proved strictly in accordance with law and as such learned appellate court has wrongly held that Talbs have not been proved in terms of section 13 of Punjab Pre- emption Act 1991.

5. Learned counsel for respondents supports the impugned judgment and decree and submits that Talbs were not proved and as such the suit was rightly dismissed by the learned appellate Court.

6. Heard. Record perused.

7. The petitioner in para. 3 of plaint asserts that first time he came to know about the sale in dispute on 28-3-2002 at 9/10 A.M. through Ghulam Rasool at his house and he immediately announced to pre-empt the sale. The petitioner appeared as his own witness as PW

1. He deposed that on 28-3-2002 he came to know about the pre-empted sale in his 'Baithak' from Sarwar who informed him that sale has been effected against Rs.1,40,000/-. He has not specified who was sitting with him and what was the time. Ghulam Sarwar the informer appeared as PW2 and deposed that sale was effected secretly. He told the plaintiff about the sale and he came to know about the sale in dispute through Patwari. He has not deposed a single word what was the date and time when he informed the petitioner, nor he has mentioned the place where petitioner was sitting when Ghulam Haidar came. In cross-examination he admits that petitioner is his real brother and seller is also his real brother. He deposed that Patwari has not informed him about the price of land but again said that Patwari told him that land has been sold for Rs.1,40,000/- Ghulam Haidar P.W.3 deposed that when he came petitioner informed that he will pre-empt the sale. In cross examination he admits that the possession of land is with the petitioner but subsequently he deposed that when land was sold it was lying open.

8. From the evidence produced by P.Ws. and pleadings in plaint it is clear that when P.W. informed the petitioner about the sale, no one was present, P.W.3. came subsequently and then petitioner informed him that property has been sold and he will pre-empt the sale. The requirement of section 13 of the Punjab Pre-emption Act are that announcement should be in Majlis. Section 13 of the Act of 1991 provides as under:-- "

13. Demand of Pre-emption.--(1) The right of pre- emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:- (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat. Explanation I. "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption. Note. Any words indicative of intention not exercise the right of pre-emption are sufficient. Explanation II "Talb-i-Ishhad" means demand by establishing evidence. Explanation III. "Talb-i-Khusumat" means demand by filing a suit. (2) When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make Talb-i- Muwathibat (3) Subject to his ability to do so, where a pre-emptor has made Talb-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section (32) or knowledge whichever may be earlier, make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre-emption. Provided that in areas where due to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre- emption".

9. The word used in explanation are "in the sitting or meeting (Majlis)". Words of English language "sitting" or "meeting" are used in this provision of law, the "meeting" has further been clarified by the word of Urdu language "Majlis" these words denotes the intention of law maker. The word sitting in the above provision of law as per Oxford English Dictionary means "a period of time when a group of people serve a meal". In Chamber 21st Century Dictionary it means "an act or state of being seated".

10. In Black Law Dictionary 18th Edition it means "a Court sitting, a session of appellate court".

11. The word "meeting" as defined in Black Law Dictionary "the gathering of people to discuss or act on matters having common interest". In Oxford Dictionary "an assembly of people for a period, especially for formal discussion and organized event and instance of people meeting". In Chambers Dictionary "the act of coming together an assembly for gathering at a pre-arranged time usually to discuss specific topic". The word Majlis is the word of Urdu. In Feroze-ul-Lughat published by Feroz Sons Limited, the word Majlis means:--

12. The word "sitting" or "meeting" used in this provision of law is of an important significance. It shows that the jumping demand should be before the persons, the meeting, sitting and Majlis means a group of persons not a single person. The reason for mentioning the above word is obvious that right of pre-emption is mostly exercised in villages where most of the sale are under threat of pre- emptor and residences in village are not like cities and the village people used to assemble at one given place commonly known as "Chopal" where the village people sit together and decide their local problems, the law maker wants that jumping demand should be before group of people who may all know the demand of pre-emptor. It is an established principle of law that right of pre-emption is a weak right and it should be proved through a clear and primary direct evidence. It is a feeble right and as such its existence and enforcement require strict proof. The intention of legislature shows that "Talb-i-Muwathibat" should be before a group of persons and not before single person and at least before two persons before whom the informer informs about the sale. A single person does not constitute sitting, meeting or Majlis. In the present case admittedly the petitioner was alone when according to him the informer informed him about the pre-empted sale. P.W.3 came subsequently. The petitioner has failed to prove that he announced his jumping demand in a meeting or before Majlis. The petitioner allegedly announced to exercise his right of pre-emption before the informer and as such the requirement of section 13 of Punjab Pre-emption Act, 1991 has not been proved. The learned appellate Court has rightly came to the conclusion that petitioner has failed to prove Talb according to law. Reliance is placed on Abdul Kareem v. Mst. Jannat Bibi (2005 SCMR 1228), Qaisar Mansoor Malik v. Mst. Jhando through Legal Heirs and 13 others (2004 YLR 537), Abdul Karim Khan v. Asif Ali Khan and others (PLD 2001 Supreme Court 137).

13. Admittedly the informer and petitioner are real brothers, the property was already in possession of petitioner, vendor also happens to be the real brother of petitioner and as such it is not believable that pre-empted sale was not in the knowledge of petitioner and informer. The honourable Supreme Court in Mian Pir Muhammad and others v. Faqir Muhammad through LRs and others (PLD 2007 Supreme Court 302) has already decided the issue in detail. Petitioner's case does not fall within the rational of above said case and as such this petition fails and dismissed. S.A.K./M-936/L Revision dismisse