2008 PLP 2312 (YLR)

HAFIZ TARIQ NASIM, J.

Brief facts leading to this civil revision are that the petitioner purchased the suit property covering an area of 2-1/2 Marla within the Municipal Limit of Kasur but the respondent filed a suit for possession through pre-emption on the basis of contiguity and common path in the Court of Senior Civil Judge, Kasur the same was decreed.

2. Aggrieved by the judgment and decree passed by the learned Civil Judge, the petitioner filed appeal before the learned District Judge, Kasur the same was dismissed resulting into present civil revision.

3. The learned counsel for the petitioner argued the case at length and his contentions are mainly revolved around issue No.2 which is as follows:

"Whether plaintiff has exercised demand of pre-emption according to law? OPP."

4. Contends that the respondent could not prove performance of Talbs under section 13 of Punjab Pre-emption Act, 1991 as Talb-i-Muwathibat is not shown to have been made instantly on gaining knowledge of sale and only one marginal witness of the notice was examined, which remained unproved in view of the provisions of Article 79 of Qanun-e-Shahadat Order, 1984.

5. The learned counsel for the petitioner submits that the petitioner purchased a house of 2-1/2 Marla in the year 1998 and since then he is residing peacefully but only due to family rivalry of respondent amongst the respondent and the seller of the property, the petitioner is being dragged into litigation with mala fide intention.

6. The learned counsel for the respondent supports both the judgments of the Courts below and opposed the arguments of the learned counsel for the petitioner.

7. After hearing the learned counsel for the parties and the perusal of record and particularly exhibit available at page 94 in the form of post office receipt and exhibit available at page 96 the plain reading of which clearly reveals that the respondent dispatched Talbs on an incorrect address.

8. It is an admitted position that the petitioner Ijaz Ahmad Khan is a resident of Gali Natavian Kot Usman Khan, Kasur whereas the post office receipt clearly reveals that the letter was dispatched on the address of Gali Pathanan, which has no concern at all with the present petitioner in any respect.

9. When confronted with this situation the learned counsel for the respondent submits that Kot Usman Khan, Kasur is a small place consisting of 70/80 houses and the incorrect address to the extent of change of street cannot affect the basic case of his client and simultaneously the said mistake cannot give a benefit to the petitioner Ijaz Ahmad Khan.

10. I am of the view that the plaintiff in suit for possession through pre-emption is not only required to show that he had dispatched Talbs through the post but also to prove with the postal envelop contained notice and it must be dispatched on a correct address because sending notices of Talbs to defendant at an address different them the actual one constitutes a failure to comply with the requirement of Talbs as set out in section 13 of Punjab Pre-emption Act, 1991.

11. A bare perusal of both the impugned judgments reveal that the documentary evidence which of course is a primary evidence in nature was misread by both the Courts below and as such material illegality is committed by way of accepting the respondent's suit.

12. Keeping in view the law laid down by the Honourable Supreme Court of Pakistan in case of Abdul Sattar v. Mst. Anar Bibi and others PLD 2007 SC 609 and Mubarak Ali through L.Rs. v. Amroo Khan through L.Rs. 2007 SCMR 1714 both the decisions passed by the Courts below are declared illegal and set aside. The suit of the respondent is dismissed. This civil revision is accepted in the above terms. H.B.T/I-13/L Revision accepted.