2007 PLP 895 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution has been directed against the judgment, dated 2-2-2006 passed by a learned Judge in Chamber in the Lahore High Court, Lahore whereby the civil revision arising out of a suit for pre-emption was dismissed.

2. The sale of land measuring 2 Kanals and 15 Marlas, subject-matter of suit situated in Chak No.19 Tehsil Malikwal District Mandi Bahauddin, was pre-empted by Mushtaq Ahmed, respondent herein, claiming superior right of pre-emption and suit was contested by the petitioners on various grounds including non-performance of Talb-i-Muwathibat in terms of section 13 of the Punjab Pre-emption Act, 1991. The learned trial Judge in the light of pleading and evidence of the parties having formed the opinion that pre-emptor has failed to prove the performance of Talb-i-Muwathibat in accordance with law, dismissed the suit on 2-5-2001 whereupon the pre-emptors filed an appeal and a learned Additional District Judge, Mandi Bahauddin while setting aside the judgment of the trial Court allowed the appeal vide judgment, dated 21-11-2001 and decreed the suit. The petitioners-vendees being aggrieved of the decree passed by the Appellate Court in the suit preferred a civil revision in the High Court and on dismissal of which have filed the present petition.

3. The controversial question involved in the present case related to the performance of Talb-i-Muwathibat and the mode of proving this basic Talb for exercising of right of pre-emption. Learned counsel for the petitioner in support thereof has argued that without disclosing the source of information of the sale and the names of the witnesses of Talb-i-Muwathibat in the plaint as well as in the statement on oath in the Court with reference to the date, time and place of meeting in which pre-emptor made declaration for exercise of right of pre-emption, the performance of Talb-i-Muwathibat cannot he successfully proved in accordance with law and placing reliance on Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315, submitted that in the facts of the present case no exception could be taken to the finding of the trial Court on the issue of Talbs.

4. Learned counsel for the respondent, on the other hand, on the strength of the case-law referred in the impugned judgment has contended that law does not require the pre-emptor to mention each detail regarding the date, time and place of meeting of the names of witnesses of Talb-i-Muwathibat in the plaint rather the performance of this Talb is sufficiently can be proved through the solitary statement of pre-emptor on oath duly supported by the statement of informer and argued that in the present case not only the name of informer was mentioned in the statement of pre-emptor in cross-examination but the informer also appearing in the witness-box has acknowledged the correctness of his statement and in that Talb-i-Muwathibat would be deemed to have been proved in letter and spirit of law.

5. The mutation of sale in favour of vendee was attested on 24-7-1994 and as per averment of the plaint and statement of pre-emptor, on oath in the Court, a declaration for exercise of the right of pre emption was made on 25-7-1994 whereas notice of Talb-i-Ishhad Was sent on 1-8-1994. The relevant para in the plaint and the portion of the statement of pre-emptor are reproduced hereunder:--

6. This is noticeable that the name of the witness who conveyed the information of the sale to the pre-emptor, as well as the witnesses who happened to be present in the meeting in which Talb-i-Muwathibat was made, were not disclosed in the plaint, instead names of two witnesses of the Talb-i-Ishhad have been mentioned in the plaint.

7. The vendee/defendant denied the averments of the above para in the written statement as under:--

8. The statement of the pre-emptor in the examination-in-chief is read as under:--

9. In the light of the above averments in the plaint and contents of the statement of the pre-emptor the question for determination would be whether Talb-i-Muwathibat to set the law at motion for exercise of right of pre-emption was proved to have been made in accordance with requirement of relevant provisions or not and to appreciate the correct legal position, it is appropriate to examine the provisions of section 13 of the Punjab Pre-emption Act, 1991 which are read as under:--. "

13. Demand of Pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-- (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khushumat. Explanations I. `Talb-i-Muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note. Any words indicative of intention to exercise the right of pre-emption are sufficient. II. `Talb-i-Ishhad' means demand by establishing evidence. III. `Talb-i-Khusumat' means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat. (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: Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses. (4) Where a pre-emptor has 6atisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."

10. The plain reading of the above provision would show that the performance of Talb-i-Muwathibat and Talb-i-Ishhad is essential for exercise of right of pre-emption and if the first or second Talb is not made in accordance with the requirement of section 13 (ibid), the pre-emptor cannot succeed in the pre-emption suit.

11. Talb-i-Muwathibat is immediate demand of exercise of right of pre-emption "on receipt of information of sale in the sitting in which pre-emptor receives information, and unless the place of meeting and time of making demand is mentioned in the plaint, it is not possible for the pre-emptor to successfully establish the performance of Talb-i-Muwathibat, and in absence of proper proof of making first Talb, pre-emptor cannot succeed in the suit. This is correct that law does not require to make the gist of evidence in the pleading, but in the suit for pre-emption, omission of material facts relating to the performance of Talbs in the plaint may lead to a strong presumption that pre-emptor without fulfilling the requirement of the first Talb filed the suit.

12. The Pre-emption Law in Pakistan is based on the principle of Muslim Pre-emption Law, which requires strict proof of Talb for exercise of right of pre-emption, therefore, it is essential for the pre-emptor to plead the necessary particular of Talbs in the plaint, failing which an inference shall be drawn that pre-emptor without fulfilling the requirement of Talb strictly in accordance with law has exercised the right of pre-emption. The burden of proving the requisite Talbs is on the pre-emptor and unless, the performance of Talb-i-Muwathibat is specifically mentioned in the plaint with necessary particulars, this burden cannot be discharged on the basis of general assertion made in the plaint. The concept of Talbs is not merely a formality in Pre-emption Law rather it is mandatory requirement for exercise of right of pre-emption and pre-emptor in present case having not pleaded the necessary particulars of Talb-i-Muwathibat in the plaint has not been able to satisfy the requirement of law. The careful examination of the relevant provision would lead us to the irresistible conclusion that the learned Judge in Chamber in the High, Court without adhering to the logic and wisdom of Talbs in the pre-emption law, gave verdict contrary to the correct legal position.

13. In the light of foregoing reason, we convert this petition into an appeal, set aside the judgment of the High Court and restore that of the trial Court. This appeal is allowed with no order as to costs. S.A.K./B-3/L Appeal accepted.