2016 PLP 96 (CLCN)

AMIN-UD-DIN KHAN, J.

Through this civil revision, petitioners-defendants have impugned the judgment and decree dated 23.09.2004 passed by learned Additional District Judge, Bhakkar, whereby the appeal filed by the respondents-plaintiffs was accepted by way of which judgment and decree dated 09.09.2003 passed by learned Civil Judge 1st Class, Bhakkar, dismissing the suit of pre-emption filed by the respondents-plaintiffs were set aside.

2. Briefly, the facts of this case are that on 30.04.1998 the plaintiffs-respondents filed a suit to pre-empt the sale of land through mutation No.643 attested on 05.01.1998 in favour of defendants. The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their claims. After the closing of trial, vide judgment and decree dated 09.09.2003 learned trial court dismissed the suit while recording the findings on issue No.4 which is with regard to performance of Talbs. An appeal was preferred by the plaintiffs before the learned first appellate court, which was accepted vide judgment and decree dated 23.09.2004. Hence, this civil revision by the petitioners-defendants.

3. Learned counsel for the petitioners-defendants argues that one of the plaintiffs namely Talib Hussain appeared as PW-1, whereas the other plaintiff Fida Hussain neither appeared as a witness nor appointed his attorney, therefore they failed to prove the performance of Talbs in accordance with law; that while making statement neither the time of gaining knowledge of sale nor the place has been mentioned by the plaintiff as well as his witnesses and same is the position with regard to performance of Talb-e-Muwathibat; that the alleged notices of Talb-i-Ishhad (Ex.P-1 to Ex.P-5) contain only the alleged thumb impressions of Talib Hussain and do not contain signatures or thumb impressions of other plaintiff Fida Hussain; that neither the original envelops through which the notices of Talb-e-Ishhad allegedly sent to the defendants nor the Acknowledgement Due if the same were served, have been produced and also the Postman has not been produced. Learned counsel argues that the plaintiffs miserably failed to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law, therefore the judgment and decree passed by learned first appellate court are nullity in the eye of law, same are liable to be set aside.

4. On the other hand, learned counsel for the respondents-plaintiffs at the very outset argues that he withdraws the suit to the extent of plaintiff Fida Hussain and same be presumed to be withdrawn and whole of the suit be presumed on behalf of other plaintiff Talib Hussain, who appeared as witness and also thumb marked the notices of Talb-e-Ishhad. Relies upon "2007 MLD 820 (Mst. Tasneem Bibi and another v. Muhammad Ali and 8 others), 2003 SCMR 776 (Ghulam Muhammad through Legal Heirs and others v. Allah Dad through Legal Heirs and others), PLD 1972 Supreme Court 59 (Mehr Allah Ditta and another v. Muhammad Ali and another) and also an unreported judgment of august Supreme Court dated 08.04.2009 in Civil Petition No.718-L of 2007 titled "Muhammad Shehzad and another v. Rab Nawaz son of Khan Muhammad".

5. I have heard the learned counsel for the parties at length and also gone through the record as well as the findings recorded by both the courts below, with their able assistance.

6. I have noticed that the judgment "2007 MLD 820" relied by learned counsel for the respondents relates to the interregnum period in filing the pre-emption suit, therefore it is not applicable to the facts of this case, as admittedly the suit was filed in the year 1998, whereas the present Punjab Pre-emption Act was enforced in the year 1991. Whereas the judgments "2003 SCMR 776 and PLD 1972 Supreme Court 59" are concerned, same do not also apply to the facts of this case, as both these judgments relate to the Punjab Pre-emption Act, 1913 and under the present Punjab Pre-emption Act, 1991 there is a pre-requisite of performance of Talbs before filing of the suit.

7. So far as unreported judgment of august Supreme Court dated 08.04.2009 in Civil Petition No.718-L of 2007 titled "Muhammad Shehzad and another v. Rab Nawaz son of Khan Muhammad" is concerned, it is also not applicable to the facts of this case, as no Acknowledgement Due or the original envelop through which the alleged notice of Talb-e-Ishhad sent to the vendees-defendants, has been produced in evidence. As such the respondents-plaintiffs cannot take benefit of this judgment.

8. For filing of suit under the Punjab Pre-emption Act, 1991 the pre-requisite is that plaintiff or in case of more than one plaintiffs, must announce their intention to pre-empt the sale with a jumping demand on gaining the knowledge of sale and then send a notice in confirmation of their Talb-e-Muwathibat in performance of Talb-e-lshhad. In this case, the stance of plaintiffs is that on coming to know about the sale both the plaintiffs announced to exercise their right of pre-emption. Same is the position in the notice that both the plaintiffs announced their intention to pre-empt the sale and also filed the suit jointly. When one of the plaintiffs appeared as PW-1 and deposed that both the plaintiffs announced to exercise their right of pre -emption on coming to know about the sale and further when the suit has been filed jointly, presumably both the plaintiffs have announced and exercised their right of pre-emption, both the plaintiffs have announced the same to the extent of half share by each plaintiff and then 1/3rd amount in accordance with section 24 of the Punjab Pre-emption Act, 1991 would have been deposited by both the plaintiffs jointly presuming a decree in their favour to the extent of half of the suit property in favour of each plaintiff. In my view, statement of learned counsel for the respondents-plaintiffs at this stage that he withdraws the suit to the extent of Fida Hussain, is not sufficient and is also not helpful to the other plaintiff Talib Hussain. When the prayer made by the counsel that he withdraws the suit to the extent of Fida Hussain, it means that plaintiffs are clear in their mind that Fida Husain failed to plead and prove the performance of Talb-e Muwathibat and Talb-e-Ishhad. In this view of the matter, if the plaintiff Fida Hussain is permitted to withdraw the suit to his extent, then the suit will remain to the extent of Talib Hussain only and that too to the extent of 1/2 of the suit property, therefore it will become a partial pre-emption and further that it cannot be presumed that Talib Hussain has claimed or he can be permitted to claim whole of the suit land through the suit. In my view, a suit for pre-emption filed under the Punjab Pre-emption Act, 1991 wherein more than one plaintiffs have jointly announced Talb-e-Muwathibat, jointly sent notice of Talb-e-Ishhad and jointly filed the suit and jointly deposited 1/3rd amount of sale, subsequently if any of the plaintiffs simply wants to withdraw the suit to his extent, suit to the extent of remaining plaintiff/plaintiffs will become partial, therefore not proceed able.

9. Even otherwise I have noticed that Talib Hussain when appeared as his own witness as PW-1, he has not mentioned the time and place of gaining the knowledge as well as time and place of jumping demand i.e. Talb-e-Muwathibat. Same is the position of PW-2 Irshad Hussain, whereas PW-3 Muhammad Iqbal has deposed the time as 4/5:00 p.m. where there is a difference of at least one hour in the time, which is also fatal for the plaintiffs-respondents. The plaintiffs were duty bound to plead and prove the specific date, time and place of gaining the knowledge of sale and also the date, time and place of performance of Talb-e-Muwathibat. In this context, I am fortified by the celebrated judgment of august Supreme Court of Pakistan reported as "PLD 2007 Supreme Court 302 (Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others)". The plaintiffs failed to plead and prove Talb-e-Muwathibat in accordance with law.

10. So far as non-production of the Postman as well as original envelops if received un-served or Acknowledgement Due if the same have been served upon the vendees, is concerned, argument of learned counsel for the respondents/plaintiffs that one of the vendees appeared as DW-1 and admitted the receiving of notice. For scrutinizing his statement it is necessary to quote here the sentence: I doubt that this statement can be used as clear admission of receipt of notice of Talb-e-Ishhad within the prescribed time or whether it can be used as an admission of receipt of notice. When the vendees-defendants have denied from the receipt of any notice of Talb-e-Ishhad in their written statement, therefore in this eventually the plaintiffs were under obligation to prove the sending of notice through registered post A.D. In the light of judgment reported as "2007 SCMR 1105 (Muhammad Bashir and others v. Abbas Ali Shah)" the receipt of notice by a vendee or refusal thereof which cannot be proved except producing the Postman, I have the honor to quote herein the findings of august Supreme Court in the judgment reported as "2013 SCMR 866 (Allah Ditta through L.Rs. and others v. Muhammad Anar)": "The obligation of onus to prove Talb-e-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff/pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the Postman." In this view of the matter, the plaintiffs cannot claim the proving of performance of Talb-e-Ishhad in accordance with law. As such they failed to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law. I have observed that the findings recorded by learned first appellate court are against the settled principles of law annunciated by the Apex Court, therefore, the same are not sustainable under the law.

11. In the light of what has been discussed above, this civil revision is accepted and the impugned judgment and decree passed by learned first appellate court are set aside and that of learned trial court are restored. Resultantly, the suit of respondents-plaintiffs shall stand dismissed with costs throughout. ZC/I-35/L Revision accepted.