2010 PLP 1297 (MLD)

CH. MUHAMMAD TARIQ, J.

Brief facts of the case are that the respondent/plaintiff filed a suit for possession through pre-emption in respect of land measuring 24 kanals fully described in the plaint, situated at Mauza Jhaithike, Tehsil Daska, District Sialkot. According to the averments made in the plaint, Mushtaq Ahmed, vendor sold the suit-land to Muhammad Sharif vide registered Sale-deed No.I577 dated 18-5-1992 and as soon as the respondent/plaintiff came to know about the sale of above suit land, he there and then in presence of witnesses announced that he has got a superior right of pre-emption against the vendee, therefore, he will exercise his superior right of pre-emption and after service of notice of Talb-i-Ishhad, the plaintiff/respondent filed the above suit.

2. The petitioner/defendant resisted the suit by submitting his written statement. Out of divergent pleadings of the parties, following issues were framed:-- "ISSUES (i) Whether the plaintiff has no locus standi to file the present suit? OPD. (ii) Whether the suit is not maintainable in its present form? OPD. (iii) Whether the plaintiff is estopped by his word and conduct from filing the suit? OPD. (iv) Whether the requirements of Talbs have not been fulfilled, has the notice under Section 13 of the Pre-emption Act, 1991 not been given in proper form, if so, is the suit liable to be dismissed? OPD. (v) Whether the suit is collusive, benami and has it been filed for the interest of others, if so, with what effect? OPD. (vi) Whether the suit property is not required by the plaintiff and is the suit liable to be dismissed as no detail of Zarar and Zaroorat has been given in the plaint? OPD. (vii) Whether the suit is not within time? OPD. (viii) Whether the defendant has borne the total expenditures of the sale, if so, is he entitled to recover this amount in case of decreeing the suit? OPD. (ix) Whether the ostensible sale price Rs.390,000 was fixed in good faith and paid actually? OPD. (x) If issue No.9 is not answered in affirmation then what was the market value of the suit-land at the time of the impugned sale? OPP. (xi) Whether the plaintiff is entitled to the prayed for decree of pre-emption? OPP."

3. After recording of evidence of the parties, the learned trial Court on 20-12-1995 dismissed the suit of the plaintiff.

4. Aggrieved of the judgment and decree dated 20-12-1995, respondent/plaintiff filed an appeal before the learned Additional District Judge, Daska, which was accepted and the suit was decreed in favour of the respondent/plaintiff. Hence this civil revision.

5. Learned counsel for the petitioner has contended that the impugned judgment and decree is against the law and facts and not sustainable in the eye of law on the ground that the plaintiff has failed to perform Talb-i-Mawathibat as provided under the law because the plaintiff has not complied with the mandatory provision of law. Further contends that time and place have not been mentioned in the plaint as to when the plaintiff came to know about the sale of the suit-land. Similarly, when the plaintiff appeared in the court as P.W.2, he did not specifically mention in his examination-in-chief about the place and time when he came to know about the sale. Same is the position with the statement of P.W.3 Akbar. Therefore, the impugned judgment and decree is against the law, result of misreading and non-reading of evidence and is liable to be set aside. Learned counsel for the petitioner further contends that this civil revision be allowed and the judgment and decree passed by the learned trial court be maintained.

6. On the other hand, learned counsel for the respondent has supported the impugned judgment and contends that civil revision be dismissed. In support of their arguments, learned counsel for respondent has stated that though the place and time is not expressly provided in the plaint or in the examination-in-chief of P.Ws.2 and 3, yet it is proved from the record that the ingredients of Talb-i-Mawathibat are fulfilled from the bare reading of the contents of the plaint as well as the statements of P.Ws. Learned counsel for the respondent has also pointed out certain answers of P.Ws. during the cross-examination. He further contends that according to the law reported in case Azmatullah v. Mst. Hameed Bibi and others reported as 2005 SCMR 1201 it has held that non-mentioning of details about time and place in plaint is not final and plaintiff cannot he non-suited merely on the ground that details of time, place, etc. have not been mentioned. Therefore, the civil revision is without merit and be dismissed.

7. Arguments heard. Record perused.

8. From the bare perusal of para 3 of the plaint, it reveals that in the plaint, the plaintiff/respondent has not mentioned the place, date or time when he was informed about the sale of suit-land. Similarly, Muhammad Yaqoob, plaintiff who appeared as P.W.2 had not mentioned in his examination-in-chief about the place and time that when he was informed that the suit-land has been sold and the plaintiff announced that he will exercise his superior right of pre-emption and performed Talb-i-Mawathibat. Same is the position with the statement of P.W.3.

9. Mentioning of date, place and time of such Talb in the plaint is essential requirement of law because in the absence of proper date, time and place, it cannot be examined and calculated correctly whether the Talb-i-Mawathibat was performed in accordance with law or not. The honourable Supreme Court of Pakistan has laid down law in case of "Haq Nawaz v. Muhammad Kabir" reported as 2009 SCMR 630 that mentioning of date, place and time in the plaint and then in the statements of P.Ws. is essential to calculate correctly the time provided under section 13(3) of the Punjab Pre-emption Act, 1991. Learned Additional District Judge has erred in holding that "Talb-i-Mawathibat was fulfilled as required under the law despite the fact that the place and time were neither mentioned in the plaint nor these were stated in the statements of P.Ws. The impugned judgment has been passed in violation of law laid down by the honourable Supreme Court of Pakistan, therefore, the impugned judgment is not sustainable in the eye of law. Thus, the instant civil revision is accepted. The impugned judgment and decree dated 3-5-2000 passed by learned Additional District Judge, Daska is set aside and the judgment and decree, dated 20-12-1995 passed by Mr. Muhammad Akhtar Bahadur, learned Civil Judge, Daska is restored. No order as to costs. A.R.K./M-300/L Petition accepted.