P L D 2009 Lahore 49 (PLP)

MIAN SAQIB NISAR, J.

In his cause for pre-emption, on account of lack of proving the Talbs, the petitioner has failed at both the forums below. In this regard, the courts have founded their verdict on two counts; firstly that the petitioner has not personally made the Talbs and it is not proved by him that Faqir Muhammad, his general attorney, who admittedly is stated to have made the demands on petitioner's behalf, was authorized to do so; secondly, the notice of Talb-i-Ishhad has not been sent to the vendees but to their mother Mst. Sardaran Bibi, who has no connection with the sale and any demand made to her is not in accordance with law.

2. Briefly the facts of the case are that the respondents purchased the suit land through mutation No.2052 dated 13-7-1998. The petitioner pre-empted the said sale and in paragraph No.4 of the plaint, it is averred that on 6-10-1998 his attorney Faqir Muhammad learnt about the sale and made Talb-i-Muwathibat. It is also mentioned that the petitioner had already instructed his said attorney that in case the said sale takes place, he should initiate pre-emption action. It is further stated that the attorney approached Mst. Sardaran Bibi, the mother of the respondents, for transferring the suit land unto the petitioner and on her refusal, a notice (it is not stated to be a notice of Talb-i-Ishhad) was sent to the lady. The suit was contested by the respondents and as mentioned earlier, the petitioner has been non-suited on issue No.2 pertaining to Talbs for the reasons mentioned above.

3. The learned counsel for the petitioner contends that in the plaint it has been categorically mentioned that Faqir Muhammad had been authorized by the petitioner to the effect that if the sale of the suit property takes place, he must pre-empt. The general power of attorney (Exh.P5) in favour of Faqir Muhammad also authorized him to institute the suit for pre-emption, therefore, the power of filing any pre-emption action necessarily entails all the ancillary powers and the authority to meet the requirements of law including making of two Talbs, resultantly the courts below have misconceived not only the law on the subject but have also misconstrued the power of attorney. It is also submitted that because the respondents were out of country, therefore, notice of Talb-i-Ishhad was validly sent. Mst. Sardaran Bibi who was their mother and was looking after their affairs.

4. Heard. According to section 14 of the Punjab Pre-emption Act, 1991 (the "Act"), the demands can be made by a person through his agent if he is unable to make it personally. Without going into the question if a pre-emptor, who is out of country at the relevant time, falls within the category of a person "unable to make the demand", suffice it to say that in the instant case, the proposition for determination is, if Faqir Muhammad had the authority to make the Talbs at all. As per section 3 of the Act, while interpreting and applying the provisions thereof, the court shall seek guidance from `Qur'an' and `Sunah'; according to section 235 Explanation II of the Muhammadan Law by Mulla, the demand can only be made by an agent who is previously authorized in this regard. It is not the case of the petitioner that any specific authority was conferred upon Faqir Muhammad prior to the sale that if it takes place, he should make the demands. The argument that because the power to file a suit for pre-emption is given to him in the general power of attorney dated 28-9-1998 (Exh.P5), therefore it should necessarily be read to include the power of making the Talbs, is not correct, because it is the settled law, that a power of attorney should be construed strictly and under the rule of interpretation of the documents, which is akin to the principles about the interpretation of law, nothing should be read therein. The authority to file the suit for the pre-emption clearly meant the institution in its legal context i.e. signing verification and the presentation of the plaint and the engaging of the counsel, but by no stretch of interpretation, it can be held that the petitioner has given the power to his attorney to make the Talbs. Even this is not the case of the petitioner when Faqir Muhammad had appeared as P.W.1 to testify, that any specific power prior to the sale in any form was given to him by the petitioner to make the TaIbs. He has only relied upon the power of attorney, which was produced in evidence as Exh.P

5. This as mentioned earlier is only restricted to the filing of the suit and nothing more. Therefore, I am of the considered view that the petitioner had not made the valid Talbs before the institution of the shit, which in view of the provisions contained in section 13 of the Punjab Pre-emption Act, 1991 is a condition sine qua non for maintaining such an action.

5. As regards the sending of notice of Talb-i-Ishhad is concerned, this demand has not been made from the vendees, rather their mother Mst. Sardaran Bibi, who in law or in fact is not shown to be the person to whom the said notice could be sent. If at the relevant time, the respondents were not in the country, the notice should have been sent in their names at their permanent address in the country and if their address abroad could be ascertained, it could also be sent there as well, but in any case, the sending of the notice to Mst. Sardaran Bibi does not meet the requirement of law. In the light of above, I do not find any infirmity legal or factual in the impugned judgments and decrees of the courts below, calling for interference in the revisional jurisdiction. This petition, therefore, has no merits and is hereby dismissed. M.B.A. /N-60/L Petition dismissed.