2010 PLP 1945 (CLC)

IJAZ UL AHSAN, J.

The appellants assail judgment and decree dated 3-5-2006 passed by a learned Civil Judge at Sialkot, which was upheld in appeal vide judgment and decree dated 13-7-2010 passed by the learned District Judge, Sialkot. Through the impugned judgments and decrees, a suit for possession through pre-emption filed by the appellants was dismissed.

2. A suit for possession through pre-emption was filed by the predecessor-in-interest of the appellants against the respondent. The suit related to one Kanal of land out of a total holding of 52 Kanals and 2 Marlas situated in Mauza Bhoj Pur, Tehsil and District Sialkot, which was sold by its owner Hamid Rashid through registered sale-deed to the respondent. The predecessor-in-interest of the appellants alleged that on 19-4-2004 at about 4-00 p.m., he got information of the sale through Muhammad Saeen, Lumberdar at his residence at Mauza Bhoj Pur, Tehsil and District Sialkot. It was alleged that Muhammad Rafique son of Hussain Bakhsh was also present when the aforesaid information was received. The predecessor-in-interest of the appellants claimed to have immediately announced his intention to exercise his right of pre-emption in respect of sale of the aforesaid property in his capacity as joint Khata holder. He further alleged that on the same evening at about8-00 p.m., he along with the aforesaid witness namely Muhammad Rafique son of Hussain Bakhsh, met the respondent at the disputed property and repeated his desire to exercise the right of pre-emption and also offered to the respondent to pay the aforesaid sale consideration, who refused to accept the same. Thereafter, the predecessor-in-interest of the appellants collected particulars of the sale on 20-4-2004, got prepared notice of Talb-e-Ishhad and sent it through registered post on the same day. The predecessor-in-interest of the appellants claimed a preferential right over the suit land on the basis of the alleged superior right of pre-emption in his capacity as owner in the joint Khata and also having a common passage.

3. The suit was contested. Out of divergent pleadings of the parties, the learned trial Court framed as many as 9 issues. Issue No.7 was the most material one, which went to the root of the case. The said issue was framed in the following terms:-- "Whether the plaintiff has fulfilled all statutory requirements under section 13 of the Punjab Pre-emption Act, 1991 including performance of Talbs." The onus to prove this issue was placed on the predecessor-in-interest of the appellants. The parties led their evidence. After going through the evidence and hearing arguments of the learned counsel for the parties, the learned trial Court dismissed the suit filed by the predecessor-in-interest of the appellants. Aggrieved of the said judgment and decree, the appellants filed an appeal, which did not find favour with the learned appellate court.

4. I have heard the learned counsel for the appellants at length. He has submitted that predecessor-in-interest of the appellants had fulfilled the requirements of all three demands (Talbs) and had, therefore, succeeded in establishing his case. He has pointed out that the learned subordinate courts allowed production of secondary evidence insofar as a copy of the passport of the respondent was allowed to be exhibited on the record and relied upon by the learned courts below despite the fact that the original had not been produced. He has further submitted that the claim of the appellants stood fully established in view of the fact that he was a Shreek Khata and also had a common passage with the owner of the suit property. Pointing to the objection relating to the maintainability of the suit, the learned counsel for the appellants argues that the learned subordinate courts came to the conclusion that the suit was indeed maintainable, yet they proceeded to rely upon secondary evidence to dismiss the suit of the appellants. The learned counsel has finally submitted that P.W.1 Muhammad Rashid and P.W.2 Meraj Din, who were independent witnesses and had testified to the fulfilment of Talb-e-Ishhad, were totally ignored and neither the learned trial Court nor the learned appellate court discussed their evidence or gave any finding on the same.

5. Heard. Record perused. 5-A. Section 13 of the Punjab Pre-emption Act, 1991 provides that the right of pre-emption of a person shall be extinguished unless such person fulfils three demands i.e. Talb-e-Muwathibat. Talb-e-Ishhad and Talb-e-Khashumat. Talb-e-Muwathibat is termed as a "jumping demand" and must be made immediately on receipt of information about the sale. Any delay in making such demand despite knowledge of the sale is ipso facto fatal to the case. Admittedly, the property in question was purchased by the respondent through a registered sale-deed on 18-3-2004. According to the version of the predecessor-in-interest of the appellants, he gained knowledge of the sale on 19-4-2010 when he was present in the house of Muhammad Saeen Lumberdar (P.W.4), in presence of Muhammad Rafique s/o Hussain Bakhsh. He immediately expressed his intention to exercise his right of pre-emption.

6. There is nothing on the record to indicate that the land was sold secretly or any information or document was withheld. It is a basic principle of law that a registered sale-deeds constitute presumptive notice to the public at large. It is also evident from the record that the appellants reside in the same village, where the suit land is situated. Further, admittedly that possession of the suit property was immediately handed over to the respondent who took possession of the same. It can, therefore, safely be said that the fact of the sale was well known in the village and there was no plausible reason why the predecessor-in-interest of the appellants had no knowledge of the sale. He slept over his right and did not immediately express his desire to purchase the suit property as is the requirement for making Talb-e-Muwathibat. Further, if Talb-e-Muwathibat was not proved, all subsequent talbs become inconsequential and the evidence of P.W. and P.W.2 lost its significance.

7. As far as reliance of the learned subordinate Courts on a copy of the passport of the respondent is concerned, suffice it to say that the copy was placed on record and was duly exhibited. No objection was raised either before the learned trial Court or before the learned appellate court against the said document being exhibited. It is settled law that where a document exhibited without objection, such objection cannot be raised at subsequent stages, specially at the revisional stage. I am not persuaded by the argument of the learned counsel for the appellants that the learned subordinate courts wrongly relied upon a copy of the passport of the respondent, which was exhausted without objections. Even otherwise, there is no allegation that the copy contains any forgery or fabrication and reached incorrect conclusions.

8. It is significant to note that copies of the passport in question unequivocally established that the respondent was not present in Pakistan when the predecessor-in-interest of the appellants claimed to have met him and expressed his desire to purchase the property in question. It is, therefore, apparent that the predecessor-in-interest of the appellants misstated the facts in his evidence and the witnesses produced by him in this regard also gave false evidence. This fact demolished the credibility of evidence led by the predecessor-in-interest of the appellants before the learned trial Court. Further, there were material contradictions in the evidence which made the version of the appellants highly doubtful.

9. A perusal of the evidence also indicates that it was specifically stated by the respondent in his evidence that a board had been displayed on the suit property indicating that the same was for sale. The said board had remained installed at the suit land for about two years. There is nothing available on record that may even remotely indicate that the predecessor-in-interest of the appellant ever made any effort to purchase the property or approached the owner in this regard. As a matter of fact, it was also stated in the evidence of respondent No. 1 that the predecessor-in-interest of the appellants had repeatedly approached him after the sale demanding money in order to withdraw his claim of pre-emption. It is interesting to note that the respondent was not cross-examined on the question of presence of a board indicating that the property in question was for sale. It is settled law that if a positive assertion is made in the statement of a witness and he is not cross-examined on the same, that portion of his statement is deemed to have been admitted. This leads to a reasonable conclusion that the property had been available 'for sale for about two years. The predecessor-in -interest of the appellants was aware of this and made no effort to purchase the same. Further, the evidence also indicates that he gained knowledge of the actual sale when it took place. The story that he gained knowledge on 19-4-2004 is not supported by the facts, circumstances and evidence discussed above. The witnesses produced by the appellants were not credible and the statement of the predecessor-in-interest of the appellant stood disproved by production of a copy of the passport of the respondent showing that he was not present in the country at the relevant time.

10. From the above, it is apparent that the learned subordinate Courts applied their judicial mind to the facts and circumstances of the case and also appraised the evidence before them in its correct perspective. I also find that in deciding material issues, the learned subordinate Courts were mindful of all intricacies involving exercise of right of pre-emption.

11. The learned counsel for the appellant has not been able to persuade me that the learned subordinate Courts have misread the evidence or have acted illegally or with material irregularity.

12. Consequently, I find no merit in this petition, which is accordingly dismissed. S.A.K./T-36/L Appeal dismissed.