2009 PLP 259 (CLC)

ALI AKBAR QURESHI, J.

This civil revision is directed against the judgment and decree dated 28-4-2005, whereby the learned Appellate Court accepted the appeal of the respondent.

2. The respondent namely Muhammad Jaffar in the instant, petition instituted a suit for possession through pre-emption against the petitioner. In the plaint it was contended that the petitioner purchased a piece of land measuring 10 Marlas situated at Daula Burhan from one Muhammad Amin through Mutation No.316 dated 29-10-1985 for a consideration of Rs. 11,000 the respondent being Shafi Shareeq and Shafi Jar has a superior right to pre-empt the sale of the suit-land (fully described in the plaint). The pre-emptor/respondent, who had fulfilled the requirement of Talbs as envisaged in law, therefore, is entitled for the decree prayed for.

3. The suit was contested by the petitioner, who controverted the averments of the plaint while filing the written statement. It was specifically stated in the written statement that the petitioner has failed to fulfil the requirements of Talbs and had no superior right to pre-empt the sale made in favour of the petitioner. The learned trial Court framed as many as six issues out of the pleadings of the parties. Parties to the case adduced their respective evidence. The learned trial Court after hearing the arguments, finally decided Issues Nos.1, 2 and 3 against the respondent, whereas Issues Nos.4 and 5 were decided in his favour and finally the suit was dismissed vide judgment and decree, dated 29-9-2004. The respondent being dissatisfied of the judgment and decree preferred an appeal, the learned Additional District Judge after hearing the arguments of the parties, consequently accepted the appeal while decreeing the suit of the respondent. Hence, this civil revision.

4. Learned counsel for the petitioner contended that the learned Appellate Court seriously erred in law and also committed jurisdictional irregularity to interfere the well-reasoned judgment, passed by the learned trial Court. Next contended that the learned Appellate Court erroneously and contrary to law observed that the respondent has proved the Talb-i-Ishhad by adducing the witness and also postal receipt dated 29-1-2000 (Exh.P.D.). The learned counsel also contended that the respondent could not prove his ownership in the estate and even otherwise failed to prove his superior right to pre-empt the sale made in favour of the petitioner but the learned Appellate Court without adverting to the evidence available on the file and the law applicable thereto, erroneously drawn a wrong conclusion and finally decreed the suit of the respondent. Lastly the learned counsel submitted that the suit of the respondent is liable to be dismissed simply on the ground that the requirement of Talbs as enunciated in section 13 of the Punjab Pre-emption Act, 1991 have not been fulfilled. The respondent in spite of the service of the notice did not appear, therefore, respondent was proceeded against ex parte on 15-10-2008. Again the case was adjourned in the interest of justice on 24-10-2008 but no one appeared.

5. Heard. Record perused.

6. The learned Appellate Court while disposing of the issues related to the performance of the Talbs observed that to prove the Talb-i-Ishhad, it is sufficient to adduce the marginal witnesses of the notice of Talb-i-Ishhad and the postal receipt and the petitioner being pre-emptor was not under legal obligation to produce the acknowledgement due with regard to the receipt of said notice by the vendee. The provisions of section 13 of the Punjab Pre-emption Act, 1991, deals with the demand of pre-emption, right to pre-empt the sale and the performance of the Talbs as required by section

13. Subsection (3) of section 13 of the Act (ibid) deals with the proposition, as to whether the pre-emptor is under legal obligation to place on record the acknowledgement due along with the postal receipt and also to produce the truthful witnesses to prove the performance of Talb-i-Ishhad. Subsection (3) of section 13 is reproduced as under:

Section 13 . "(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption." 7. The simple interpretation of the aforesaid provision of law, would be that the pre-emptor is under legal obligation to place on the record the "acknowledgement due" to prove the service of the notice of Talb-i-Ishhad along with the receipt and two truthful witnesses, failing which the legal provision would have its own effect according to the fact of the case. 8. In the instant case, the learned Appellate Court while dealing this part of the case has ignored the command of law as given in the aforesaid section. 9. As regards the superior right of the respondents, the learned Appellate Court has not examined the documents presented by the respondents to prove his ownership in the same Khata, out of which the sale was made. Further the learned Appellate Court has also not recorded any findings regarding the ownership of the petitioners in the same village. 10. The findings recorded by the learned Appellate Court require reappraisal and reconsideration of the evidence available on the file by the learned Appellate Court, therefore, it is appropriate to remand the case to the learned Appellate Court for re-adjudication and afresh decision on the available material. 11. For the foregoing reasons the judgment and decree passed by the learned Appellate Court is set aside, the case is remanded to the learned Appellate Court to decide the same afresh after issuing notice to the parties and also to provide opportunity to defend. Disposed of with no order as to costs. S.A.K./M-456/L Case remanded.