2015 PLP 92 (SCMR)

ANWAR ZAHEER JAMALI, J.

This civil appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973, is directed against the common judgment dated 7-4-2008, in Civil Revision No.489 of 2005 and Civil Revision No.1431 of 2005 passed by learned single Judge in chambers of the Peshawar High Court, Peshawar, whereby the former Civil Revision filed by the respondents was allowed while the latter one filed by the appellant was dismissed. For a better understanding of parties' case, the background of this litigation is summarized as under:--

2. On 8-5-2001, the appellant instituted a suit for possession through pre-emption against the respondents in respect of 10-kanals of agricultural land, sold to them by one Shams Tabraiz son of Dilawar Khan through mutation No.113 dated 22-1-2001, The case of the appellant was that on 29-4-2001 at about 10-00 a.m. she received information about such sale through her husband Abdul Kahar, at her house in presence of her sons Muhammad Ayaz and Anwar Ali Khan. In the same sitting she expressed her intention to file a suit for pre-emption and, thus, fulfilled the legal requirement of Talb-i-Muwathibat. On the next day, she also met the requirement of making Talb-i-Ishhad by sending notice through registered Post AD to all the respondents, as she had a superior right of pre-emption over the suit land. The suit was contested by the respondents, challenging its maintainability on various legal grounds; the amount of sale consideration was disputed being Rs.5,25,000 and not Rs.1,50,000, as alleged by the appellant and receipt of notice of Talb-i -Ishhad was also denied. It was further stated that the appellant had earlier knowledge about this transaction of sale. On these pleadings of the parties to the suit, nine issues were framed, whereafter both the parties were allowed full opportunity to lead their respective evidence.

3. The appellant in support of her claim examined five witnesses out of whom P.W.1 was Patwari of the halqa; P.W.2 was Postman of the area; P.W.3 was the Postmaster of the area; P.W.4 was her husband and special attorney, while P.W.5 was her son and one of the attesting witnesses of the notice of Talb-i-Ishhad. She, however, neither examined herself in person nor her son Muhammad Ayaz, who was the other attesting witness of the notice of Talb-i-Ishhad.

4. After the completion of evidence of the appellant side, on their turn, the respondents examined four witnesses out of whom witness No.1 was the brother-in-law of the husband of the appellant; witness No.2 was the previous owner/vendor, who had transferred the suit land in favour of the respondents vide mutation No.113 dated 22-1-2001; witness No.3 was the special attorney of respondents Nos.1 and 2, while witness No.4 was another private witness, who was the first cousin of the respondents.

5. After the evidence of both the parties was recorded, the trial Court of Civil Judge No.1, Lahore, heard the arguments of the learned counsel for the parties and vide its judgment dated 31-5-2003, dismissed the suit of the appellant, inter alia, on the ground that she failed to prove the validity of the talbs made by her for exercising her right of pre emption over the suit land.

6. The above judgment was challenged by the appellant through Civil Appeal No.73-30 of 2005, instituted on 30-6-2003. This appeal, after due contest between the parties, was allowed in the post-remand proceedings vide judgment dated 26-3-2005, thereby upholding the claim of pre-emption exercised by the appellant, but upon payment of Rs.5,25,000 as sale consideration and Rs.26,000 towards taxes of local government.

7. The judgment of the appellate Court, as referred to above, was challenged by both the parties separately before the Peshawar High Court. In Civil Revision No.489 of 2005, filed by the respondents, they had challenged the judgment and decree of the appellate Court, inter alia, on the ground that the appellant had failed to exercise her right of pre emption by making Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law and the evidence adduced from her side was also full of material contradictions. In the other Civil Revision No.1431 of 2005, filed by the present appellant, she had challenged the judgment of the appellate Court as regards the quantum of sale consideration fixed by the appellate Court, which, according to her, should have been Rs.1,50,

000. Both the civil revisions were heard together by a learned single Judge in the Peshawar High Court, who vide his judgment dated 7-4-2008, passed in Civil Revision No.489 of 2005, allowed the said revision, set aside the judgment of the appellate Court and consequently, the suit for pre-emption filed by the appellant was dismissed. By the same judgment, the other Civil Revision No.1431 of 2005 was also dismissed, having become infructuous and also barred by limitation.

8. Mr, Gulzarin Kiyani, learned Senior Advocate Supreme Court for the appellant, at the start of his submissions gave a brief resume of the relevant facts of the case and the proceedings before the Courts below. Thereafter, he contended that none of the grounds sustained by the revisional Court in favour of the respondents to non-suit the appellant for her claim of pre- emption is based on proper appreciation of evidence, thus, the impugned judgment is liable to be reversed, In this regard, he further argued that neither disclosure of the name of the informer, Iftikhar, in the plaint was necessary nor his non-examination at the stage of evidence had any bearing to the fate of the suit instituted by the appellant, as he was not cited as a witness of Talb-i-Muwathibat or of Talb-i-Ishhad as per the pleadings of the appellant. He also explained the absence of one of the attesting witness of Talb-i-Ishhad, Ayaz Ali, the son of the appellant, who did not appear as a witness in the suit to give evidence, by stating that at the relevant time he was out of the country (Dubai). He, therefore, argued that his absence, more particularly in the wake of the evidence of the husband and attorney of the appellant, who, though not pleaded, but was also one of the attesting witnesses of Talb-i-Ishhad, was not fatal to the case of the appellant. The learned Advocate Supreme Court also attempted to distinguish the ratio of the, judgment in the case of Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957), which was referred to and relied upon by the revisional Court in its impugned judgment with reference to non-examination of the appellant herself before the Court and its effect. The cited judgment noted that the right of pre-emption is inherently "piratical" in nature, therefore, conditions laid down under section 13 of the Punjab Pre-emption Act, 1991 must be strictly observed and it is for this reason that while the pre-emptor may appoint an attorney to pursue the suit, because Talb-i-Muwathibat is a personal act of the pre-emptor an attorney may not substitute the pre- emptor under the law. The Court further dilated upon the application of the exception to this rule, as enunciated by section 14 of Punjab Pre-emption Act, 1991, and clarified that it could not be availed as such an exception appears to have been created to meet a situation in which either the pre -emptor was a minor or was otherwise unable to make Talb-i-Muwathibat himself/herself or appear in Court in person. Mr. Gulzarin Kiyani, learned Senior Advocate Supreme Court for the appellant however urged that the ratio of this case was distinguishable, therefore, not applicable to the present case, as according to the case of the appellant, her attorney was her husband who himself was a witness of the whole exercise of right of pre-emption by the appellant by way of making Talb-i-Muwathibut and Talb-i-Ishhad in accordance with law. Making reference to certain observations contained in the impugned judgment against the appellant, he further explained that the time of 10 to 15 minutes consumed by the appellant and her other family members during conversation, as admitted by her special attorney and husband Abdul Kahar in his deposition, was not fatal to affect the validity of performance of Talb-i-Muwathibat by the appellant. The findings recorded in this regard by the revisional Court are thus erroneous. At the end of his submissions, he contended that the right of pre-emption is a substantive right conferred under the Islamic law, having statutory backing, therefore, for its enforcement, no element of feebleness could be attached to it, and it should be treated as any other legal right enforceable before the Court of law on the usual standards of evidence. In support of his submissions, as regards the scope of attestation, he placed reliance upon the judgment in the case of Abdul Hakeem v. Mst. Jannat Bibi (2005 SCMR 1228), which held that because Talb-i-Ishhad is the manifestation of the intention to exercise the right of pre-emption, it must be conveyed through the creation of evidence in writing, therefore the notice of Talb-i- Ishhad must be served and has to be attested by two truthful witnesses. The Court further observed that the attestation has to be proved through production of evidence. In order to discern the factum of such attestation the Court made reference to section 3 of the Transfer of Property Act, 1882, which clarifies that the role of the witness for the purposes of making Talb-i-Ishhad in such attestation is that each of them should have seen the executant sign or affix his thumb mark on the instrument, or seen some other person sign the instrument in their presence, under the direction of the executant. In the same context, he also referred to Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 in an attempt to show that in a suit for pre-emption, examination of both the attesting witnesses of the notice of Talb-i-Ishhad was not mandated by law.

9. In reply to the above submissions, learned Advocate Supreme Court for the respondents strongly supported the impugned judgment. He contended that there are material contradictions in the case of the appellant when the evidence adduced from her side is taken into consideration with reference to her pleadings in the plaint. He argued that non-appearance of the appellant in the witness box was fatal to her case in line with the judgment in the case of Abdul Qayyum v. Muhammad Sadiq (supra), which was fully attracted and applicable to the facts of the case, as there was no plausible explanation for her absence or non-appearance as a witness in her own case for pre-emption. Once she herself has exercised right of pre -emption by making Talb-i-Muwathibat and Talb-i-Ishhad, the evidence of her husband/special attorney will not meet the spirit and requirement of law in this regard. Making reference to sections 13 and 14 of the Khyber Pakhtunkhwa Pre emption Act, 1987 and Article 79 of the Qanun-e-Shahadat Order, 1984, he further argued that non-appearance of one of the attesting witnesses of the notice of Talb-i-Ishhad was fatal to the case of the appellant. He also invited our attention to the evidence of D.W.1 and D.W.2 to show that after the sale of the suit land, on 22-1-2001 through sale mutation No.113, the appellant and her husband had acquired such knowledge much earlier than 29-4-2001, and this fact has been confirmed by none else but by the brother in law of the appellant's husband, who had categorically stated that the knowledge of the sale was acquired by Abdul Kahar after about 20-25 days of the sale transaction, which statement on oath remained unchallenged in cross-examination. He also made reference to the deposition of D.W.2, Shams Tabraiz, vendor of the suit land, who categorically stated that the sale consideration of the suit land received by him was Rs.5,25,000 and that Rs.26,000 were paid by the respondents towards local council dues etc., and that he had good relations with the attorney of the appellant, Abdul Kahar, who is his first cousin and they are putting up in the same house. The learned Advocate Supreme Court for the respondents in support of his submissions placed reliance upon the judgments in the cases of Unair Khan v. Faiz Rasool (PLD 2013 SC 190) and Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193). In the first case of Unair Khan (supra) the Court observed that it is settled law that a power of attorney has to be construed strictly whereby only such powers which were expressly and specifically mentioned in the power of attorney, could be exercised by the agent, for this reason a general power of attorney should not necessarily be read to include the power of making the Talbs. The authority to file the suit for the pre-emption clearly means its institution in its legal context i.e. signing verification and the presentation of the plaint and the engaging of the counsel, but by no stretch of interpretation the Court held; could this mean that the petitioner has given power to make Talbs to his attorney. In the latter case of Abdul Khan (supra) it was noted that by reading Article 79 of the Qanun-e-Shahadat Order, 1984 and section 13 of the Punjab Pre- emption Act, 1991 it was clear that the notice of Talb-i-Ishhad is to be attested by two witnesses and such a document shall not be used in evidence until and unless two witnesses have been produced to prove the attestation of the same. A notice, not qualifying the test of proof as envisaged by Article 79, cannot be used as a piece of evidence to prove the making of Talb-i-Ishhad, meaning thereby that the right of pre-emption "shall be extinguished" as mandated by section 13 of the Punjab Pre-emption Act, 1991. He also referred the case of Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235) on the legal proposition that as Article 129(g) of Qanun-e-Shahadat Order, 1984 states that "That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it." If the name of the witness, in whose presence the Talb-i-Muwathibat is made, is mentioned in the plaint but is not produced as witness, in the absence of any explanation by the pre- emptor, there exists a legal presumption that if the witness had been produced then such a deposition would have been against the case of the pre-emptor.

10. We have carefully considered the submissions made before us by both the learned ASCs and with their assistance perused the case record. Before adverting to the legal submissions, we would like to make reference to some factual aspects of the case. For this purpose, it will be seen that as per the claim of the appellant, Mst. Rooh Afza, the right of pre-emption by making Talb-i-Muwathibat and Talb-i-Ishhad, was exercised by her in presence of her husband Abdul Kahar and her two sons Muhammad Ayaz and Anwar Ali on 29-4-2001 at 10-00 a.m. and the suit for possession through pre-emption was also instituted by her in person on 8-5-2001. But, without any valid justification, the appellant did not appear before the trial Court as witness for exercising her right of pre -emption, but for this purpose, subsequently on 23-6-2001, she gave special power of attorney to her husband, The evidence of witness P.W.4, Abdul Kahar, reveals that he materially contradicted his own stance qua the case of the appellant regarding making Talb-i-Muwathibat by deposing as under:--

11. From the bare reading of the above portion of statement on oath by P.W.4 Abdul Kahar, we find that the case of the appellant for making Talb-i-Muwathibat in accordance with law stood demolished as without any justification she consumed 10-15 minutes to discuss the matter with her family members before taking the decision of exercising her right of pre-emption in respect of the suit land. In the statute, use of the word "immediate" in the context of "Talb-i-Muwathibat" has its own meaning and significance, thus no redundancy can be attributed to it to accommodate a pre-emptor, who has not been vigilant in making such "Talb". The lapse of 10-15 minutes before the exercise of such right (Talb- i-Muwathibat) was, thus, fatal to the case of the appellant. If any case-law is needed for reference the case of Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302) may be cited with advantage. In this judgment, a five member bench of the Supreme Court considered this issue in the context of section 13 of the Punjab Pre-emption Act, 1991, which is pari materia to section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, and the ratio/reasoning followed by the Court is fully applicable to the case in hand, The Court while referring to Black's Law Dictionary, as well as various other decisions of the superior Courts, concluded that the condition of immediate demand means that Talb-i-Muwathibat has to be performed in the same meeting and sitting, without any loss of time and as soon as information of the sale was received by the pre-emptor. Furthermore, in Muhammad Nazeef Khan v. Gulbat Khan (2012 SCMR 235) the Court while examining the definition of "sale" under section 2(d) and section 13(1) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 held that the definition of "sale" in section 2(d) cannot be applied to the same expression used in section 13 as the pre-emptor is obliged to make the Talb immediately upon receiving information of the sale regardless of whether the conditions laid down for completion of sale have been fulfilled. This is because the stringent nature of the requirement of Talb-i-Muwathibat does not allow the pre-emptor to postpone the making of this Talb even if he is to make "...further inquiry or probe as to whether or not the sale was complete in all respects. The Talb is to be made regardless of the credibility of the information". In addition to the above, an examination of some Indian case-law also supports the claim of the respondents that slightest lapse of time is fatal to the case of the appellant. The cases of Sonabashi Kuer v. Chaudhary Ramdeo Singh (AIR 1951 Pat 521) and Muhammad Ahmad Said Khan v. Madho Prasad (35 Ind Cas 911) both clarified that the reasons why Talb-i- Muwathibat has to be performed with alacrity is because the purpose of making an immediate claim is to demonstrate that the pre-emptor has not relinquished his right of pre-emption.

12. In addition to what has been noted above, it is also evident from the evidence of P.W.4, Abdul Kahar, that he tried to suppress some material facts from the Court. However, during his cross-examination, he conceded about the presence of Iftikhar Ali at his house at the time of exercise of right of pre-emption by the appellant and disclosed that on 29-4-2001 the factum of the sale was disclosed to him by Iftikhar Ali. This fact has exposed him that whatever he had stated before the Court was not at all confidence inspiring or all truth, to sustain the claim of the appellant. Besides, in our opinion, non-appearance of the other attesting witness of "Talb-i-Ishhad" regarding the exercise of right of pre-emption, by the appellant is also fatal to her case. Moreso, as even if at the relevant time he was in Dubai, he could have come to Pakistan to appear in the witness box in support of his mother's claim. The submission of Mr. Kiyani in this regard with reference to Article 17 of the Qanun-e-Shahadat Order, 1984 has also no relevance, as the said Article of the Qanun-e-Shahadat Order, 1984 has not diluted the affect of Article 79 of the said Order, particularly in a suit for pre-emption, which, as per legal requirement of section 13 of the Khyber Pakhtunkhwa Pre-emption Act, required attestation of the notice of Talb-i-Ishhad by two truthful witnesses, who could depose as to the same before the Court. The ratio of the case of Abdul Khan (supra) and the case of Muhammad Mal Khan (supra) cited by the learned Advocate Supreme Court for the respondents fully endorses this view.

13. The outcome of the above discussion is that this appeal, being devoid of merits, is liable to be dismissed.

14. Foregoing are the reasons for our short order earlier passed in this appeal. MWA/R-10/SC Appeal dismissed.