1999 PLP 2338 (SCMR)

MAMQON KAZI, J.

Brief facts of the case are that land measuring 8 Kanals and 5 Marlas situated in Village Murali, Tehsil Talagang, District Chakwal, owned by one Muhammad Saleem, was sold to the petitioner for consideration of Rs.10,

900. The sale was evidenced by Mutation No.1950 sanctioned on 28-6-1992.

2. Thereafter, two suits for pre-emption were filed in respect of the said sale, one by respondents Nos. l to 7 and the other by respondents Nos. 8 to

10. After consideration of the said suits, the learned trial Court vide judgment, dated 21-6-1993, dismissed both the suits.

3. Respondents Nos.8 to 11 did not challenge the said judgment, but respondents Nos. l to 7 field appeal against the judgment of the learned trial Court which was allowed by the Additional District Judge vide judgment, dated 28-10-1996.and the suit of the said respondents was decreed to the extent of 8th and 9th share of the land in dispute.

4. The petitioner filed revision before the Lahore High Court, Rawalpindi Bench, but the same was dismissed by the learned Judge in Chambers vide judgment, dated 27-10-1998.

5. Mr. Muhammad Munir Peracha, learned counsel for the petitioner has firstly argued that the said respondents having acquired knowledge about the sale on 7-8-1992, although, made Talab-i-Muwasibat on the same day, but thereafter, notice as required by section 13(3) of the Punjab Pre-emption Act, 1991 was sent by them on 11-8-1992. Subsection (3) of section 13 provides that:

"(3) Where a pre-emptor has made Talab-i-Muwasibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talab-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. " The Learned counsel while relying upon two earlier judgments of this Court in Zafar Ali v. Zainul Abidin (1992 SCMR 1886) and Mir Sahib Khan v. Muhammad Rauf Khan (1992 SCMR 1780), has argued that Talab-i-Ishhad should have been made soon after the first Talab as possible and if it was possible for the plaintiff to make Talab-e-Ishhad on the same day when Talab-i-?Muwasibat was made, the same should have been made accordingly. According to the learned counsel, the plaintiff failed to show that it was not possible for him to send such notice within the time as required by the said subsection, therefore, requirements of law were not fulfilled. In the said judgments it was observed that notice in respect of Talab-i-Ishhad must be sent as soon as possible after Talab-i-Muwasibat, but it was further observed that it should be sent not later than two weeks from the date of knowledge. In Sahib Khan's case (supra), although this Court was interpreting the provisions of section 13 of N.-W.F.P. Pre-emption Act, but the said provisions are identical to those of the same section of Punjab Pre-emption Act, 1991. It was observed in this case:

"The plain reading of the aforequoted provisions of pre-emption law makes it amply clear that no sooner the pre-emptor gets knowledge of the sale transaction, he is to declare his intention to pre-empt the same and as soon thereafter as possible has to send a registered cover notice, acknowledgement due, in writing, attested by two truthful witnesses, to the vendee. This is to create evidence of the intention of the pre-emptor to file a suit for pre-emption. The ingredient of subsection (3) are; one, that the notice must be sent as soon as possible after Talab-i-?Mawathibat but not later than two weeks; two, that the notice must be sent in writing; three, it must be attested by two truthful witnesses; and four, it must be sent under registered cover acknowledgement due. There is a proviso in subsection (3) that the Talab-i-Ishhad can be oral in presence of two truthful witnesses if no facility, of post office is available to the pre-emptor. "

6. In a recent judgment of this Court in Muhammad Gul v. Muhammad Afzal (1999 SCMR 724) Talab-i-Ishhad made by the pre-emptor after ten days of making Talab-i-Muwasibat was held to have substantially fulfilled the requirements of section 13(3) of the Punjab Pre-emption Act, 1991. The two judgments, relied upon Mr. Peracha were also considered in the case of Muhammad Gul. These judgments clearly demonstrate that notice referred to in section 13 in respect of Talab-i-Ishhad must be sent as soon as possible but it must not be sent later than two weeks after the date of knowledge. Therefore, in the present case, notice, which was sent by the said respondents on 11-8-1992, which was four days after the date of knowledge, was well within the period as laid down by section

13. Consequently, we find no force in the first contention of Mr. Peracha.

7. The second contention of Mr. Peracha was that, although mutation was sanctioned on 28-6-1992, but Talab-i-Muwasibat was made by the said respondents on 7-8-1992. Learned counsel while referring to the provisions of section 31 of the Punjab Pre-emption Act, has argued that the officer attesting the mutation is required to give public notice thereof within two weeks of registration or attestation, as the case may be. According to the learned counsel, such notice must be presumed to have been received by the respondents as provided by the law. Therefore, according to the learned counsel, Talab-i?Muwasibat made on 7-8-1992 does not fulfil the requirements of law. We are, however, not inclined even to consider the said contention because the same has g been raised for the first time before this Court, Admittedly, the said contention had not been raised either before the appellate Court or the revisional Court. The evidence indicates that as soon as the said respondents acquired knowledge about the said sale, they made the respective Talabs as required by law. The contention, therefore, has no force.

8. In the result, we find no force in this petition. The petition is, therefore, dismissed and leave is refused. M.B.A./S-135/S????????????????????????????????????????????????????????????????????? ??????????? Petition dismissed.