2014 PLP 308 (CLC)

MAMOON RASHID SHEIKH, J.

The plaintiff/petitioner has been unsuccessful, at the trial as well as the appellate level to have his suit for possession through pre-emption, in respect of the property in dispute, decreed in his favour. Hence the filing of the instant petition challenging the impugned judgment and decree dated 25-3-2003 passed by the learned Civil Judge 1st Class, Tala Gang District Chakwal and the impugned judgment and decree dated 19-6-2004 passed by the learned Additional District Judge, Tala Gang District Chakwal.

2. The learned counsel for the petitioner submits that the petitioner was non-suited by the learned Courts below inter alia on the grounds that the petitioner has not been able to prove the Talb-e-Muwathibat and Talb-e-Ishhad, even though, the petitioner's suit had been held to be within time by the learned appellate Court despite the objection by the respondents that the petitioner's suit was barred by time. Further submits that the petitioner brought on record evidence to show that the Talb-e-Muwathibat had been performed in accordance with the law. Similarly, the notice (Exh.P.E.) of the Talb-e-Ishhad was sent to the respondents who happen to be real brothers through registered post A.D. The notice was received by their real father, therefore, their service was complete. The learned Courts below have erred in holding that the service of notice on the respondents through their father was not proper service. Further submits that similarly the findings of the learned Courts below that separate notices should have been issued to each respondent is contrary to the principles of "Mahomedan Law". In this respect relies on the judgment reported as "Muhammad Askari v. Rahmatullah and others" (AIR 1927 Allahabad 548). Further contends that assuming without conceding that individual notices were required to be sent to the respondents even then the notice issued in the names of the minor respondents Nos.3 and 4 was validly served as it was received by their father, consequently, they were served in accordance with the law i.e. through their father and natural guardian. The petitioner's suit should, therefore, have been decreed at least against the said minor respondents Nos.3 and

4. Further contends that the impugned judgments and decrees suffer from misreading and non-reading of evidence. The minor variations in the statements of the petitioner and his witnesses should not detract from the fact that the Talb-e-Muwathibat had been performed in accordance with the law. The learned Courts below have erred in holding otherwise.

3. The learned counsel for the respondents submits that it is a case of concurrent findings of fact. The petitioner failed to prove Talb-e-Muwathibat as also Talb-i-Ishhad. Under the law separate notices of Talb-e-Ishhad should have been issued to all the respondents. The petitioner only sent one notice in the names of all the respondents. The said notice too was not served. Even if, it were to be assumed that the minor respondents Nos.3 and 4 were served through their father and natural guardian then the service of the notice would not be deemed to be in accordance with the law as the respondents' father is neither a party to the proceedings nor was he at any time appointed as the minor respondents Nos.3 and 4's guardian ad litem. Moreover, the notice was not addressed to respondents Nos.3 and 4 through their father. Further contends that where the service of notice is disputed then it is mandatory for the plaintiff to adduce the evidence of the postman concerned in order to establish service of notice. In the instant case, admittedly, the evidence of the postman concerned was not produced. Relies on the judgment reported as "Bashir Ahmed v. Ghulam Rasool" (2011 SCMR 762). Also contends that the sale took place in the year 1997 and the petitioner waited till the year 1999 for filing the suit. The suit was, therefore, barred by time. The findings of the learned appellate Court below on the question of limitation is against the facts and the law.

4. Arguments heard. Record perused.

5. Admittedly, this is a case of concurrent findings of fact. The learned counsel for the petitioner has tried to make out a case for decreeing of the petitioner's suit by maintaining that the petitioner was able to prove Talb-e-Muwathibat as well as Talb-e-Ishhad. It has been further maintained on the basis of the principles of "Mahomaden Law" that even if it is accepted that respondents Nos.1 and 2 have not been served in accordance with the law the fact still remains that the minor respondents Nos.3 and 4 have been served through their father and natural guardian, therefore, a decree for possession through pre-emption ought to have been passed in favour of the petitioner to the extent of the minor respondents Nos.3 and 4's share in the property in dispute. In this respect the learned counsel has relied on Muhammad Askari's case (supra). I am afraid this contention of the learned counsel for the petitioner does not come to his aid. The service of the notice of Talb-e-Ishhad on the respondents including the minor respondents Nos.3 and 4 is disputed, therefore, in view of the law as laid down by the Hon'ble Supreme Court in Bashir Ahmed's case (supra) (cited at the bar by the learned counsel for the respondents) it was incumbent upon the petitioner to have produced the postman concerned. In absence of the evidence of the postman concerned service of notice of Talb-e-Ishhad cannot be said to have been proved. Moreover, the right of pre-emption under the provisions of Section 19 of the Punjab Pre-emption Act, 1991, is neither transferable nor divisible and the claim for pre-emption has to be made on the whole property pre-emptible. In view thereof, the reliance placed by the learned counsel for the petitioner on Muhammad Askari's case (supra) is misconceived.

6. Under the circumstances, the petition fails and is dismissed accordingly with no order as to costs. AG/M-3/L Revision dismissed.