2003 PLP 446 (MLD)

Allah Ditta petitioner purchased a piece of land measuring 1 Kanal, for a sale consideration of Rs.20,000 vide Mutation No.2919 dated 17-5-1992, Qurban Hussain son of Noor Ali respondent filed a suit for possession through pre-emption claiming superior right of pre-emption on the ground of being Shareek Khata. The suit was resisted on legal and factual grounds. The respondents denied the performance of Talbs and also controverted the alleged claim of the plaintiff regarding his superior right of pre-emption.

2. Several issues were framed. The learned trial Court found that under section 20 of the Punjab Pre-emption Act, 1991, the pre-emptor and the vendee had equal right of pre-emption and that on this score the pre-emptor could be entitled to the grant of a decree of the extent of half of the demised property. On Issue No.6 regarding the performance of Talbs, however, it was found that as the notice of Ishhad itself mentioned that the plaintiff/respondent came to know about the disputed sale one week prior to the notice, the Talb-e-Muwathibat was not immediately made according to section 13 of the Punjab Pre-emption Act, 1991. On the same ground it was found that even the Talb-e-Ishhad made by the respondent did not fulfil the requirement of section 13 of the Act of 1991. Resultantly, the suit was dismissed vide judgment and decree dated 30-1-1995.

3. Upon appeal, preferred by the respondent, the learned Appellate Court was of the view that the respondent/plaintiff had been able to prove his date of knowledge of the sale to be 26-8-1992 whereupon he immediately performed the Talb-e-Muwathibat in accordance with law. To arrive at this conclusion the learned Appellate Court referred to the statements of Qurban Hussain son of Ghulam Muhammad P.W.1, Liaqat Ali, P.W.2 and Qurban Hussain plaintiff as P.W.6. Finding the Talb-e-Muwathibat and Talb-e-Ishhad to have been performed in accordance with law, the learned Appellate Court vide judgment and decree dated 29-11-1995 set aside the judgment of the trial Court and decreed the suit 18 of the respondent to the extent of 1/2 of the suit property.

4. Rana Abdul Hameed Khan, Advocate for the petitioner and Chaudhary Muhammad Sadiq, Advocate for the respondent have been heard and record perused.

5. The respondent/plaintiff has not mentioned any specific, date when he acquired the knowledge about the impugned sale. P.W.1 Qurban Hussain son of Ghulam Muhammad stated that the plaintiff acquired the knowledge of sale on 26-8-1992. According to P.W.1 the plaintiff had declared his intention to pre-empt the sale on 26-8-1992 in the presence of the P.W. and Liaquat Ali P.W.2. The notice of Talb-e-Ishhad was then sent by the plaintiff on 27-8-1992. In the cross-examination, however, he submitted that when the plaintiff had approached the poultry shed of P. W .1, where both the witness and Liaquat were present, the plaintiff already had the knowledge of the sale. He was informed by some person from the village. He further stated that it was the vendor who had informed the plaintiff. A close examination of tire statement of P. W .2 would show that he did not state about the date when the plaintiff acquired the knowledge of the sale. In cross-examination this P.W. states that the plaintiff already had the knowledge of the sale before the information which was given by P.W.2 to the plaintiff.

6. The plaintiff appeared as his own witness as P.W.6. Although he stated the date of, knowledge to be 26-8-1992, he gave out his source of knowledge as one Jamil son of Abbas Ali. Apart from the oral evidence, the respondent produced copy of the notice of Talb-e-Ishhad. Talb-e Ishhad like Talb-e-Muwathibat are the mandatory pre-conditions in a suit for pre-emption. This notice which is dated 27-8-1992 included the following content: This forms the concluding sentence of the notice where-after the signatures of the plaintiff Exh.P.W.6/1 and his witness Exh.P.W.1/1 and Exh.P.W.2/1 were affixed. The learned trial Court took cognizance of this entry in the notice and found that the plaintiff had acquired knowledge of the sale one week prior to the date of notice and that Talb e-Muwathibat which was professed to have been made on 26-8-1992 was not correct. It was in these circumstances that the trial Court found upon Issue No.6 that the plaintiff had not performed the Talbs in accordance with law. In appeal, the only question that was agitated by the pre emptor was the issue relating to the performance of Talbs. The learned Appellate Court considered the oral evidence of the plaintiff and found it to be sufficient to establish the date of knowledge as 26-8-1992 on which date, it was held that Talb-e-Muwathibat was made. The learned counsel for the respondent has not been able to indicate anything from the judgment of the Appellate Court which attempted to explain or reconcile the obvious contradiction in the oral evidence and the contents of the notice of Talb-e-Ishhad. The learned counsel for the respondent contended that an overall impact of the evidence may be considered, which according to him established the date of knowledge and the date of Talb-e-Muwathibat.

7. This contention of the learned counsel for the respondent has no substance. The notice of Talb-e-Ishhad had been produced on the record by the respondent/plaintiff himself. If according to the plaintiff, there was some discrepancy in the said notice, it was the duty of the plaintiff to have produced such further evidence which was necessary to remove the inconsistency. Neither the Advocate who drafted the notice was produced in evidence nor did the plaintiff or his witnesses attempt to explain or reconcile the contents of the notice of Talb-e-Ishhad, wherein, it was specifically mentioned that the plaintiff had acquired knowledge of sale one week prior to the date of notice.

8. The upshot of the above discussion is that the learned Appellate Court did not evaluate the evidence on the record in its proper perspective and arrived at an erroneous conclusion. The inference drawn by the Appellate Court from the evidence cannot be sustained.

9. Resultantly, this civil revision is allowed and the judgment and decree of the Appellate Court dated 29-11-1995 is set aside with the result that the suit of pre-emption of the respondent stands dismissed. H.B.T./A-686/L Revision accepted.