2014 PLP 1300 (MLD)

MUHAMMAD TARIQ ABBASI, J.

Through the revision petition in hand, the judgments and decrees dated 29-11-2008 and 27-4-2009 respectively, passed by the learned Civil Judge and Additional District Judge, Rawalpindi have been called in question.

2. Through the above mentioned judgment and decree dated 29-11-2008, the suit for possession through pre-emption, filed by the respondent against the petitioners had been decreed. Whereas vide the judgment and decree dated 27-4-2009, an appeal preferred by the petitioners had also been turned down.

3. The facts are that the respondent filed a suit, against the petitioners, whereby he sought possession through pre-emption, of the property, fully described in the plaint. The grounds were that Abdul Rahim was the owner of the property measuring 11 Kanals 3 Marlas situated in Khewat No. 788, Khatooni Nos. 1586 and 1587, Khasra Nos.344 and 387 of Village Ghela Kalan, Tehsil and District Rawalpindi, who sold out the said land, in favour of the petitioners against consideration of Rs.70,000, but to defeat the right of respondent a false sale consideration was described as Rs.1,20,000; that the respondent came to know about the above mentioned sale on 25-10-2001 at about 11.00 a.m. through Mian Khan in presence of Raees Khan, whereupon the respondent immediately declared that he will exercise right of pre-emption and get the land back, hence made Talb-e-Muwathibat; that thereafter, the respondent sent notice of Talb-e-Ishad, to the petitioners through registered A.D., which was attested by the above named witnesses; that as the respondent was Shafi-e-Shareek, Shafi-e-Khaleet, and Shafi-e-Jar, in the suit property, hence had superior right of pre-emption qua the petitioners and that the petitioners were asked to accept the right of the respondent and while receiving the actual sale amount of Rs.70,000, transferred the property in his favour, but refused.

4. The suit was contested by the petitioners through filing written statement, whereby several legal as well as the factual objections were raised and the claim of the respondent was denied.

5. To resolve the controversy between the parties, the learned Trial Court had framed the following issues:- (1) Whether plaintiff is entitled for a decree for possession through his superior right of pre-emption? OPP (2) Whether plaintiff has not fulfilled the requirement of talbs within time as described by law? OPD (3) Whether the plaintiff has no locus standi hence the instant suit is liable to be dismissed" OPD (4) Whether plaintiff has not come to the court with clean hands? OPD (5) Whether the value of the suit for the purpose of court fee and jurisdiction has not been properly assessed by the plaintiff if so its effect? OPD (5-A) Whether suit property was purchased for a consideration of Rs. 70, 000 and intentionally it was written as Rs.1, 20, 000 only to frustrate the pre-emption right of plaintiff? OPP (5-B)If above issue is not proved in affirmative, then what is actual sale consideration? OPP (6) Relief.

6. The evidence of the parties was recorded, during which Muhammad Nawaz, respondent/plaintiff himself appeared and made the statement as P.W. and also got examined Mian Khan as P.W.2 and Raees Khan as P.W.3. During the said evidence, the grounds taken in the plaint were reiterated. Towards the documentary evidence, the postal receipts were tendered as Ex.P.l and Ex.P.2, attested copy of the mutation as Ex.P.3, attested copy of 'Aks Shajra' as Ex.P.4, copy of record of rights as Ex.P.5, attested copy of the Jamabandi as Ex.P.6, copy of envelope as Ex.P.7, photo copy of receipt as Mark-A, copy of the notice as Mark-B and Mark-C, whereas receipts of the post office as Ex.P.8 and Ex.P.9.

7. From the other side, Muhammad Ansar had made the statement as DW-1, Muhammad Yaqoob as DW-2 and Muhammad Ayub being attorney of the petitioners/defendants as 'DW-3. Power of attorney and copy of Aks Shajra were also tendered in evidence as Ex.D.l and Ex.D.2 respectively.

8. After completing the proceedings, the learned Trial Court had pronounced the judgment and decree dated 29-11-2008, whereby the suit was decreed.

9. The petitioners had challenged the above mentioned decree through appeal, before the learned District Judge, Rawalpindi, which for hearing came before the learned Additional District Judge at Rawalpindi, from where the judgment and decree dated 27-4-2009 was pronounced and the appeal was dismissed.

10. Feeling aggrieved, the instant revision petition has been preferred, with the contention and the grounds that findings of both the learned courts below, which resulted into passing of the impugned judgments and decrees being based on conjectures, surmises, misreading and non-reading of the material available on the record and non-consideration of the law on the subject are not sustainable in the eye of law, hence liable to be set aside.

11. The learned counsel for the petitioners has advanced his arguments in the above mentioned lines and the grounds, whereas the learned counsel who has put appearance on behalf of the respondent, has supported the impugned judgments and decrees and vehemently opposed the revision petition.

12. Arguments of both the sides have been heard and the record has been perused.

13. As per law, there are certain pre-requisites for filing a suit of pre-emption. The said requirements are called Talb-e-Muwathibat and Talb-e-Ishad.

14. As per the latest dictum laid down by the august Supreme Court of Pakistan in the cases titled `Muhammad Ali and 7 others v. Humaira Fatima and 2 others' (2013 SCMR 178), and 'Munawar Hussain and others v. Afaq Ahmed' (2013 SCMR 721), it is mandatory that in the plaint, as well as notice of Talb-e-Ishad, time, place and date of Talb-e-Muwathibat must be specifically mentioned, otherwise the suit will fail.

15. It has been observed that in the plaint as well as the notice of Talb-e-Ishhad (Mark-PB and Mark PC), the place, where the respondent/ plaintiff had allegedly gained the information of the sale was not given.

16. It has further been noted that postal envelope towards sending of the notice to Karam Dad (petitioner No. 2/defendant No. 2) was tendered as Ex.P.7, but no proof of sending any notice through registered post acknowledgment due, to Muhammad Taj, (petitioner No. 1/defendant No.1) was ever brought on the record of the learned Trial Court. Therefore, the notice of Talb-e-Ishhad to Muhammad Taj (petitioner No.1/defendant No.1) was not established on the record. The said lapse in the light of the judgment of the august Supreme Court of Pakistan titled 'Munawar Hussain and others v. Afaq Ahmed (2013 SCMR 721) was fatal for the suit.

17. Furthermore, the contention of the respondent/plaintiff was that the notices of Talb-e-Ishhad were sent to the petitioners through registered post, but not received by them. In the said eventuality, as per the precedent laid down by the august Supreme Court of Pakistan in the case titled 'Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), it was mandatory for the respondent/plaintiff to get the postman examined, even service of the notice was admitted by the petitioners/defendants. Admittedly the respondent/plaintiff had failed to perform his above mentioned part of obligation.

18. The record shows that Raees Khan (P.W.3), in whose presence, the respondent/plaintiff had gained knowledge of the sale, during his statement had admitted that on 21-8-2001, the respondent/plaintiff had come to know about the sale. The above mentioned material contradiction towards the knowledge of the sale was very important and notable, but both the learned courts below had ignored the same while saying that the above named witness was illiterate. The said material discrepancy, in the light of the above cited judgment (2013 SCMR 866) was also fatal for the suit.

19. Due to the above mentioned reasons and in the light of the above mentioned case-laws, the issue No. 2 above was not proved, hence on the sole ground, the suit was not competent and was liable to be dismissed, but the learned Trial Court had erred in not considering the above mentioned facts and deciding the above said issue against the petitioners/defendants.

20. The learned appellate court while hearing the appeal, had also failed to consider the above mentioned facts and circumstances and preferred to dismiss the appeal in a slipshod manner, which could not termed to be justified.

21. Resultantly, the instant revision petition is accepted, the impugned judgments and decrees dated 29-11-2008 and 27-4-2009 passed by both the learned courts below are set aside and the suit of the respondent is dismissed with no order as to costs. ARK/M-193/L Revision accepted.