2017 PLP 310 (YLRN)

ALI AKBAR QURESHI, J.

This civil revision is preferred against a judgment and decree dated 23.4.2005 passed by the Additional District Judge, D.G. Khan, whereby the learned Judge decreed the suit in favour of the respondent/Muhammad Azam by setting aside the judgment and decree passed by the learned trial court dated 6.7.2002, by which the learned trial court dismissed the suit of the respondent.

2. Shortly the facts as stated in the record are that the respondent instituted a suit challenging a sale of land measuring 14-Canal 15-Marlas situated in Mauza Yaroo Tehsil Dera Ghazi Khan, detail of which is given in body of the plaint, on the ground that the land in question was purchased by the petitioner through mutation No.803 dated 29.6.1995 for a consideration of Rs.100,000/- but in order to defeat the right of the preemptor, entered the price of land Rs.300,000/-, the moment, sale in question came into the knowledge of the respondent/plaintiff, the plaintiff in the presence of the witnesses announced his right of pre-emption and thereafter also send the notices, therefore, the respondent by this-way fulfilled the requirements of Talb-i-Muwathibat and Talb-i-Ishhad.

3. The suit was contested by the petitioner on factual as well as on legal side through a written statement.

4. The trial court framed as many as 7 issues, recorded evidence of the parties and finally dismissed the suit. Against the aforesaid judgment and decree, the respondent filed an appeal, which was accepted by the learned appellate court, vide judgment and decree dated 24.4.2005 and decreed the suit in favour of the respondent/plaintiff.

5. Learned counsel for the petitioner at the very outset, has drawn my attention to the contents of the plaint and particularly, paragraph-6. Learned counsel submits that the respondent while filing the plaint has not mentioned the time and date to fulfill the requirement of Talb-i-Muwathihat and further, that no notice was issued in order to fulfill the requirement of Talb-i-Ishhad, therefore, the suit of the respondent is liable to be dismissed on the strength of the principle laid by the Hon'ble Supreme Court of Pakistan in Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others (2007 SCMR 515), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) and (2013 SCMR 863).

6. The judgment cited as 2007 SCMR 515, deals with the proof of Talb-i-Muwathibat and non-mentioning of date, time and place of making Talb-i-Muwathibat in the plaint. The relevant paragraph on this issue as recorded by their lordships is as under:-- "On the other hand, learned counsel for the respondents/pre-emptors stated that although in the pleadings the date, place and time of performance of Talb-e-Muwathibat is not mentioned but this fact got clarified through statement of P.W.4 Ajaib Khan who appeared as their attorney. In this behalf it may be noted that by the time it is well-settled that the particulars regarding the place, time and date of the performance of Talb-e-Muwathibat are required to be mentioned in the pleadings with the object of such observation in the judgment that in order to determine the question of limitation it is necessary to know exact\date and time when Talb-e-Muwathibat was performed and it is also necessary to perform Talb-e-Muwathibat because according to law after performing Talb-e-Muwathibat within 14 days notice of Talb-e-Ishhad, has to be issued. Admittedly in the instant case no such details were mentioned in the pleadings, therefore, following the law on the subject reported in different cases including Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Muhammad Siddique v. Muhammad Sharif 2005 SCMR 1231, Akbar Ali Khan v. Mukammal Shah and others 2005 SCMR 431, Atiqur Reham and others through their real father v. Muhammad Amin PLD 2006 SC 309 and a recent judgment in C.P. 822 of 2006 dated 20th September, 2006 pronounced by the Bench, of which one of us (Iftikhar Muhammad Chaudhry, Chief Justice) is a member, we are of the opinion that learned Additional District Judge had rightly directed for dismissal of the suit filed by the respondent/pre-emptor."

7. In this case as evident from the contents of paragraph-6 of the plaint, that the mandatory requirement as ruled by the Hon'ble Supreme Court of Pakistan i.e. mentioning of date, time and place is missing, therefore, the learned trial court on the basis of the record and particularly the pleadings, rightly concluded that the respondent/pre-emptor has filed to fulfill the requirement of Talb-i-Muwathibat and finally dismissed the suit.

8. As regard the Talb-i-Ishhad, the respondent also failed to prove the service of the notice send by him upon the petitioner through any cogent and confidence inspiring evidence. The witnesses, an official of the post office though appeared as witness but could not substantiate the claim of the respondent/preemptor in a manner as required by law.

9. The learned counsel for the respondent during the course of arguments has mainly relied upon a judgment cited as Muhammad Hanif v. Tariq Mehmood and others (2014 SCMR 941) which also deals with the requirement of Talb-i-Muwathibat. The aforesaid esteemed judgment of the Hon'ble Supreme Court of Pakistan is not applicable upon the facts of this case as in the aforesaid case, although the pre-emptor has not mentioned the exact time but stated that the Talb-i-Muwathibat was made in the later part of the day i.e. Sham, in the plaint, whereas in this case, the respondent/preemptor has not even stated the first part or the later part of the day, therefore, the learned trial court has rightly decided the issue of Talb-i-Muwathibat.

10. The learned appellate court although differed with the findings of the learned trial court but without referring the law ruled by the Hon'ble Supreme Court of Pakistan on this issue, therefore, any finding contrary to law are hardly sustainable or permissible in law.

11. In view of the above, this revision petition is accepted, the judgment and decree delivered by the learned appellate court dated 23.04.2005 is set aside and that of the learned trial court is affirmed, resultantly, suit filed by the respondent/preemptor is dismissed. No order as to cost. MM/M-71/L Petition accepted.