2006 PLP 775 (YLR)

SYED HAMID ALI SHAH, J.

The petitioner instituted a suit for possession through pre-emption on 27-7-1999. The pre-emption asserted in the plaint' that he being Shafi-e-Sharik and Shafi-e-Khalit and Shafi-e-Jar, has the superior right of pre-eruption and the transaction of exchange, shown in Mutation No.269 dated 13-4-1999. is in fact a sale transaction. It was further stated that immediately on having knowledge of mutation dated 15-7-1999, announced Talb e-Muwathibat and then notice of Talb-e-Ishhad was sent on 20-7-1999. The suit was contested by the respondent, who filed written statement, controverting therein, the averments of the plaint. The learned trial Court framed seven issues, the evidence was adduced in response thereto by both the parties. The learned trial Court while assessing the evidence of the petitioner, reached conclusion that the witnesses have not uttered single word about the time and place of performing the Talb-c-Muwathibat. Non-mention of time, date and place by the P.Ws. was considered as fatal, to the performance of Talb-e-Muwathibat, resultantly the issue was decided against the petitioner. The petitioner was not entitled to decree for pre-emption. The suit was dismissed vide judgment and decree dated 24-5-2003. The appeal against the decree was filed on 13-6-2003 and the learned appellate Court vide judgment and decree dated 9-10-2004, dismissed the appeal. This petition is against the concurrent findings of the Courts below.

2. Learned counsel for the petitioner has argued that Talb-e-Muwathibat as well as Talb-e-lshhad were duly proved. The petitioner stated in his evidence that Muhammad Ali Shah, P.W.5, while sitting at Darbar on 15-7-1999 at about 12-00 O'Clock informed the petitioner about the sale in presence of Muhammad Saleem (P.W.3) and Ghulam Mustafa (P.W.4) when the petitioner immediately announced, his right of pre-emption. This fact was corroborated by P.W.3 and P.W.4. Talb-e-Ishhad was proved when P.W.1 appeared and deposed that he delivered registered letter on 22-7-1999 and produced "acknowledgment due" Exh.P.1. It was further submitted by the petitioner's learned counsel that the conclusion drawn by the Courts below to the effect that the petitioner remained silent for about three months after sale, are erroneous. The respondent kept the sale dated 13-4-1999, secret and the petitioner came to know about the sale on 15-11-1999, when he immediately announced his right of pre-emption.

3. Learned counsel for the respondent, on the other hand, has fully supported the impugned judgments. He has argued that the petitioner was directed to pay the deficiency of court fee of Rs.4,050 but the same has not been done. Resultantly, the present revision petition cannot be entertained. He has submitted that Talb-e-lshhad was not proved in accordance with law. P.W.2 only produced the receipt and not the notice. The person who has served upon the respondent the notice, was required to produced the receipt in evidence. Further added that the witnesses of the petitioner, have shown their lack of knowledge regarding sale as well as sale consideration. The petitioner has failed to prove the transaction as sale, while the transaction subject matter of the suit, is an exchange. He has referred to the case of "Qaiser Mansoor Malik v. Mst. Jhando through Legal Heirs and 13 others" (2004 YLR 537) to contend that right of pre-emption is a weak right and has to be proved by clear, primary and direct evidence which the respondent has failed as far as performance of Talbs is concerned. He submitted further that to prove performance of Talbs, pre-emptor has to prove through cogent evidence the performance as to time, date and place to Talbs.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. The petitioner has placed on record receipt dated 14-10-2004 to show that deficiency in payment of Court-fee has been made in compliance with order of the Court. This objection of the respondent has no force. Reverting to the fulfillment of requirement of Talbs, the petitioner has stated that while sitting at "Thekriwala" Darbar, on 15-7-1999, at about 12-00 O'clock, one Muhammad All son of Ali Muhammad told him about the sale in presence of Muhammad Saleem (P.W.3) and Ghulam Mustafa (P.W.4). The petitioner immediately announced his intention to exercise the right of pre-emption. The petitioner while appearing as P.W.2 has stated as under:-- He in his cross-examination has stated as under:-- Muhammad Saleem P.W.2 stated that Muhammad Ali Shah informed about sale when he and Ghulam Mustafa were present at the Darbar. Sajjad Ali, petitioner at that point of time told that he will exercise his right of pre-emption. Ghulam Mustafa/P.W.4 in his statement, corroborated the same. Analyzing the statements of P.Ws. 2, 3 and 4, and the cross-examination of their witnesses, factum of Talbs has been proved. Performance of Talb-e-Muwathibat, even otherwise is not rigidly required to be fulfilled on the basis of specific mention of details particulars, time, date and place; in the plaint and names of the persons in whose presence such 'Talb was made. The august Supreme Court of Pakistan has dealt with this issue in the case of "Haji Noor Muhammad v. Abdul Ghani and 2 others" (2000 SCMR 329), relevant part is re-produced hereunder:- We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for pre-emption is not an exception to such general principles, which is well-established in our jurisprudence. We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirements of Talb-e-Muwathibat cannot he fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talb is made is also mentioned therein."

6. The petitioner has proved Talb-e-Ishhad, through the statement of Muhammad Akram, Postman (P. W. 1) who stated that he personally delivered the registered letter and produced its acknowledgement as Exh. P.1. The petitioner himself produced the receipt of notice as Exh. P.2. The statement of the petitioner in this respect .was unrebutted, and no objection was raised to it's production at the time of recording of statement of P.W.2. Following the law laid down in the case of "Nadir Khan v. Itebar Khan" (2001 SCMR 539) and keeping in view the evidence of the parties, I hold that the petitioner has proved the performance of Talb and conclusions drawn by the Courts below on this issue are erroneous, suffer from misreading and non-reading of material evidence.

7. The question the transaction under reference was sale or exchange has been resolved in favour of the petitioner and the learned appellate Court by holding that the transaction was actually sale and colour of exchange was given to it, to save the vendee from pre-emption. The issue of superior right of the petitioner qua pre-emption has been decided by the trial Court in favour of the petitioner and has also been affirmed in appeal. Issue of sale consideration of suit-land has also been resolved.

8. For the foregoing discussion, the revision petition is accepted, the judgments and decrees passed by the learned Courts below are set aside and the findings of learned Courts below on issue No.1 are reversed. Resultantly, the suit is decreed in favour of the petitioner. F.M./S-516/L Petition accepted.