2003 PLP 926 (MLD)

(2) Whether the plaintiff has fulfilled two demands of pre-emption before filing the present suit? OPP. (3) Whether the plaintiff has got superior right of pre-emption? OPP. (4) Whether a sum of Rs.8,00,000, was fixed in good faith and actually paid as sale price of the suit-land? OPP. (5) If Issue No.4 is not proved what was the market value of the suit-land at the time of its sale? OP-Parties. (6) Whether the defendant has spent Rs.25,340 on improvements of the suit-land by making construction? If so, whether he is entitled to recover this amount in case the suit is decreed? (7) Whether the defendant has spent Rs.72,800 as expenditure of sate registration etc. and he is entitled to recover this amount in case the suit is decreed? OPD. (8) Relief.

3. The trial Court recorded evidence of the parties comprising of the statements of the father of the plaintiff as P.W.1 coupled with the statements of P.W.2 Ali Ahmad and P.W.3 Muhammad Siddique and then respondent/defendant appeared himself as D. W.1 and produced D.W.2 Altaf Hussain and D.W.3 Muhammad Riaz. The trial Court after giving them, an opportunity of hearing came to the conclusion that the suit of the petitioner/plaintiff was liable to be decreed and decreed it accordingly vide judgment dated 27-9-1999. The defendant/respondent filed an appeal before the First Appellate Court from where it was decided in his favour on 25-3-1.996 setting aside the judgment and decree of the trial Court and dismissing the suit of the petitioner/plaintiff. The petitioner/plaintiff feeling himself aggrieved has filed the present revision petition.

4. Learned counsel for both the parties have been heard.

5. Learned counsel for the petitioner/plaintiff has submitted that the plaintiff came to know of the sale on 23-8-1994 as intimated to him by Ali Ahmad P.W.2. The plaintiff immediately in presence of Ali Ahmad and Muhammad Siddique made his Talb-i-Muwathibat and then reiterated his Talb-i-Muwathibat by contacting the defendant/respondent in presence of the abovesaid P. Ws. on the same day and then for the purpose of making of Talb-i-Ishhad sent a notice through registered post on 30-8-1994. As such, the learned counsel for the petitioner/plaintiff has supported the judgment and decree passed by the trial Court in his favour and has submitted that the judgment and decree passed by the First Appellate Court is not liable to be maintained and be set aside.

6. Learned counsel for the respondent/defendant has submitted that the date of knowledge alleged by the plaintiff/pre-emptor is not correct. The sale in question took place on 12-6-1994 and defendant/respondent started construction over this piece of property on the date of purchase of the property. The construction was completed on 17-7-1994. The parties are resident of same village. The petitioner/plaintiff came to know of the sale on the date of sale and at the most he came to know of the sale on 17-7-1994 when the construction was completed. It is also submitted that both the P. Ws. Ali Ahmad and Muhammad Siddique in their cross- examination have admitted that they came to know of the sale two months after the sale was effected, as such, the date of knowledge is 12-8-1.994 and in this situation the making of Talb-i-Muwathibat and then that of Talb-i-Ishhad by the petitioner/plaintiff is not in accordance with the provision of section 13 of the Punjab Pre-emption Act. It is also submitted at the time of making Talb-i-Ishhad, the petitioner/plaintiff as per his statement recorded as P. W.1 did not confirm and reiterate the making of his earlier Talbs i.e. Talb-i-Muwathibat and as such supported the judgment of the First Appellate Court and submitted that the suit for possession through pre-emption of the petitioner/plaintiff is to be dismissed.

7. After having heard learned counsel for both the parties and perusing the material made available before this Court; the facts for determination which arise are as follows; when was the property in question sold by Muhammad Riaz and others in favour of the respondent/defendant; what was the date of knowledge of sale by the pre-emptor and through whom and when the pre-emptor made his Talb-e- Muwathibat and then the plaintiff made his Talb-i-Ishhad; whether the plaintiff has the superior right of pre-emption and what was the sale price of the suit property. Analysing the pleadings of the parties and the evidence on record ii, this regard, the sale in question took place on 12-6-1994 through a mutation of Sale No. 1033 dated 12-6-1994. The petitioner/plaintiff has alleged himself to be a Shrik-e-Khata and having common means of irrigation in the land. The respondent/defendant has not disputed the right of pre-emption of the plaintiff in very clear words. The copies of record of rights Exh. P.5 and the statements of P. W .2 Ali Ahmad and P.W.3 Muhammad Siddique and that of the guardian of the petitioner/plaintiff as P. W. established that the plaintiff is Shrik-e-Khata and has common means of irrigation in the land. As such, the superior right of pre-emption of the petitioner/plaintiff is established. The respondent/defendant has alleged the sale price as Rs.8,00,000 and then having spent an amount of Rs.72,800 for the purpose of district council fee and fee for attestation of the mutation. The respondent/defendant has also claimed an amount of Rs.25,340 with regard to the construction raised by him and the defendant has corroborated it by appearing in the witness-box as D.W.1 and to rebut it, there is no cogent evidence on record that the property was sold for Rs.5,50,000 and not for an amount claimed by the respondent/defendant. Hence the sale price is fixed as Rs.8,00,

000. The respondent/defendant is also entitled to the amount claimed by him for the payment of district council fee and fee for attestation of mutation and for raising of construction. Now coming to the date of knowledge of sale by the petitioner/plaintiff, the petitioner/plaintiff has made a statement that for the very first time he came to know of the sale on 23-8-1994 through All Ahmad and he immediately in presence of Ali Ahmad and Muhammad Siddique made his Talb-i-Muwathibat and then contacted the defendant who refused and then on 30-8-1994, the despatched registered notice on account of his making of Talb-i-Ishhad The P Ws. produced by the petitioner/plaintiff to corroborate his date of knowledge are Ali Ahmad and Muhammad Siddique, who have categorically admitted in their cross-examination that they came to know of the sale two months after the date of sale and in this aspect the date of knowledge comes to 12-8-1994 and not 23-8-1994. Apart from it respondent/defendant has alleged in the written statement as well as in his evidence that immediately on the date of sale the possession of property was received by him and he raised construction over it, D.W.1 Muhammad Nazir defendant himself and D.W.2 Altaf Hussain have categorically made a statement in this regard. The respondent/defendant also produced Mr. Riaz who had raised construction over this property and had received an amount of Rs.25,000 as wages. All the said D.Ws. have corroborated their statements. Examining the question of date of knowledge the sale claimed by the plaintiff in view of the above evidence, the date of attestation of mutation is 12-6-1994 and there is no evidence in rebuttal by the petitioner/plaintiff that the possession of the property on the date of sale was not taken by the respondent/defendant. There is no evidence to the fact that the respondent/defendant did not raise the construction immediately which was completed on 17-7-1994. The parties are resident of the same village. The claim of the petitioner/plaintiff is that of being Shrik-e-Khata and this does not appear to reason that the petitioner/plaintiff did not come to know of the sale even, after taking of possession of the suit property by the respondent/defendant and that too even after the construction was being raised and had been raised by the respondent/defendant. Apart from this situation, the witnesses produced 8 by the petitioner/plaintiff themselves despite the date of knowledge claimed by the plaintiff. As per their statements from cross -examination they came to know of the sale- after a period of two months of the date of sale and as such the date of their knowledge of sale comes to 12-8-1994 and not 23-8-1994. In view of this discussion, the date of knowledge as claimed by the plaintiff/pre emptor as being 23-8-1994 is not proved on record and the petitioner/plaintiff in accordance with evidence on record did have the knowledge of the sale on 12-6-1994.

8. As the date of knowledge of sale by the petitioner/plaintiff is established as 12-6-1994 then we are to examine the making of Talb-i- Muwathibat and then that of Talb-i-Ishhad. There is nothing on record that the petitioner/plaintiff made his Talb-i-Muwathibat immediately on 12-6-1994 on coming to know of sale without losing any moment in the same meeting where he came to know of it and then he was legally bound to make Talb-e-Ishhad within a period of two weeks through registered notice acknowledgment due attested by two truthful witnesses from the date of making of Talb-i-Muwathibat and in view of the above conclusion of his having failed to make Talb-i-Muwathibat immediately from the date of knowledge of sale Talb-i-Ishhad as allegedly made by him is of no avail. Consequently the petitioner/plaintiff has failed to establish making of Talbs in accordance with law. Resultantly, the judgment and decree of the First Appellate Court does not suffer from legal infirmity. The judgment of the trial Court was not legal and as such was rightly set aside by the First Appellate Court and the present revision petition is without any sustenance or force and is dismissed accordingly. H.B.T./B-126/L Revision dismissed.