2010 PLP 1939 (MLD)

SYED AKHLAQ AHMAD, J.

This civil revision is directed against the judgments and decrees dated 15-3-2002 and 18-6-2002 passed by the learned Civil Judge Jand and learned District Judge Attock whereby suit for possession through pre-emption of the petitioner was dismissed and his appeal there-against failed respectively.

2. Facts giving rise to this civil revision are that the petitioner filed suit for possession through pre-emption against the respondent to the extent of land measuring 10-Kanals 13-Marlas out of total sold land measuring 60 Kanals, 13-marlas situated in Mahal Aurang Abad Tehsil Jand District Attock vide Mutation No. 2018 dated 30-8-2000. It is claimed that the petitioner had no prior notice and knowledge of the impugned sale. As soon as he came to know of this sale, he immediately pronounced to pre-empt the suit-land in the presence of P.Ws. A notice dated 28-9-2000 was also given to the respondent through registered post A/D. The petitioner claims his superior right of pre-emption over suit-land qua the respondent being co-sharer and enjoying common passage. It is stated that suit-land is also required by him on the principle of `Zarar and Zaroorat'. Respondent was asked to admit the claim of the petitioner over the suit-land but he refused to do so which necessitated the suit.

3. The respondent contested the suit by filing the written statement wherein he denied the superior right of pre-emption of the petitioner and performance of Talbs by him in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, 1991.

4. Out of the pleadings of the parties, the following issues were framed by the learned Civil Judge. ISSUES:-- (i) Whether plaintiff has superior right of pre-emption qua the defendant? OPP (ii) Whether plaintiff fulfilled requirements of Talbs? OPP (iii) Whether ostensible sale price of Rs. 1,00,000 was fixed in good faith and actually paid? OPD (iv) If Issue No.3 is proved in affirmative then what was the market value of the suit-land at the time of its sale? OPP (v) Whether suit has not been properly valued for the purpose of court-fees? OPD (vi) Relief.

5. After trial Issue No.2 regarding Talbs was decided against the petitioner and the suit was dismissed by the learned Civil Judge Jand vide his judgment and decree dated 15-3-2002. Being aggrieved of the decision, the petitioner filed appeal which was also dismissed by the learned District Judge Attock vide his judgment dated 18-6-2002. Thereafter he filed the instant revision petition before this court for setting-aside the concurrent findings of the courts below.

6. Learned counsel for the petitioner contends that the judgment of the learned trial Judge and that of learned District Judge is based on mis interpretation of the provision of section 13 of the Punjab Pre-emption Act, 1991. Both the courts below failed to take into consideration the law declared by the Supreme Court of Pakistan wherein' it has been held that there is no need to mention the time, date and place of knowledge or of Talb-e-Mowathibat in the plaint. Even otherwise this shortcoming stands removed if read with photo copy of notice of Talb-e-Ishhad dated 28-9-2000, annexed with the plaint. It is claimed that it is fully proved on the record that the petitioner made Talb-e-Mowathibat and then fulfilled requirements of Talb-e-Ishhad. Finding of the trial Court is result of misreading and non-reading of evidence and misconception of law. The judgments and decrees of both the courts below are, thus liable to be set-aside. It is therefore, prayed that the suit of the petitioner be decreed with costs.

7. On the other hand, learned counsel for the respondent opposed this revision and strongly defended the concurrent findings of both the Courts below.

8. I have heard the arguments of both the learned counsel for the parties and have also gone through the record.

9. Section 13 of the Punjab Pre-emption Act, 1991 prescribes that the right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order. (I) Talb-e-Muwathibat. (II) Taib-e-Ishhad; and (III) Talb-e-Khasumat. Subsection 2 of section 13 of the Act provides that when the fact of sale comes within the knowledge of the pre-emptor through any source, he shall make Talb-e-Mowathibat. Non-fulfilment of requirements of Talbs would not entitle the petitioner to decree for pre-emption. Right of pre-emption being a very weak right in property, section 13 of the Act contemplates a maximum period of two weeks for making Talb-e-Mowathibat and for failure to do so, the right of pre-emption is extinguished. It is necessary for the pre-emptor to make reference to his first demand, the Talb-e-Mowathibat while making second Talb, Talb-e-Ishhad. The rationale behind is to put restriction on exercise of said right which is based on tradition of the Holy Prophet (P.B.U.H.).

10. As in this case, sale of the suit-land took place through Mutation No. 2018 dated 30-8-2000 whereas the petitioner filed his suit on 24-10-2000, after expiry of one month and 24 days. Section 31(1) of the Punjab Pre-emption Act, 1991 provides that it is incumbent upon the officer registering sale-deed or attesting the mutation of sale to give public notice in respect of such registration or attestation within two weeks, as the case may be. Subsection (2) thereof envisages that the notice given in subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of mosque and on any other public place of the village or the place where the property is situated. Presumption of regularity is attached to all official acts. It was the duty of the petitioner to dislodge the presumption of notice of sale under section 31 of the Punjab Pre-emption Act, 1991. However, he has stated nothing in his statement on this point. It would, therefore, be presumed that the petitioner had due knowledge of the attestation of mutation of sale within two weeks from the issuance of the notice under section 31 of the Act. Despite this, he failed to make Talbs in accordance with law within two weeks thereof. Therefore, the right of pre-emption is riot available to him on this ground as well. (1995 SCMR 1510, PLD 2001 SC 499, 2004 SCMR 535, 2006 CLC 200 and 2005 CLJ 828 relied upon).

11. In para. 3 [Bay] of the plaint, it is claimed that as soon as the petitioner came to know about the sale, he made "Talbs". However, no date, time and place of Talb-e-Mowathibat and source of knowledge has been mentioned any where in the plaint.

12. The main ground of attack of the learned counsel for the petitioner in the revision before this court was that both the courts below failed to take into consideration the law declared by the Supreme Court wherein it has been held that there is no need to mention the time, date and place of the knowledge or of Talb-e-Mowathibat in the plaint. However, during the course of arguments, learned counsel for the petitioner did not cite any judgment and frankly conceded that the latest view of the Supreme Court is that the pre-emptor should mention the time, date and place of knowledge or of Talb-e-Mowathibat. in the plaint.

13. Learned counsel for the petitioner has rightly conceded so. It has been laid down in Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231 [Supreme Court of Pakistan] it has been held that "similar view was taken in `Khairullah v. Sultan Muhammad and another' 1997 SCMR

906. In the present case, in the plaint, there was no mention of particular date and place of making the demand of Talb-e-Mowathibat or when the plaintiff acquired the knowledge about the transaction rather it was stated in the general terms that in the beginning of May, 1990 the plaintiff came to know about the transaction and thus the performance of Talb-e-Mowathibat and Talb-e-Ishhad in the manner in which the law required was not satisfied. The evidence produced by the appellant would not show that two Talbs were made by the appellant either in terms of Muslim law of pre-emption or in accordance with statutory provision. The learned Judges in Chambers in the High Court having examined the question of performance of Talbs in the light of the evidence on record held that the Talbs were not performed in accordance with the requirement of law and we having gone through the record have not been able to differ with the above view of the High Court on the question of performance of Talbs which must be proved through the clear evidence. The appellant has not been able to establish this essential requirement of law, therefore, the finding of the High Court on this precise question was not open to any exception and we hold that dismissal of suit was in accordance with law." In `Akbar Ali Khan and others v. Mukamil Shah and others' 2005 SCMR 431 [Supreme Court of Pakistan], it has been observed that "section 13--Pre-emption suit--Talb-e-Mowathibat is necessary to be mentioned in the pleadings as the said Talb puts a limitation on the prospective pre-emptor that he must express his intention to pre-empt imrnediately and in case of involvement of limitation of any kind he has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making Talb-e-Mowathibat, the statutory period of 15 days of performing Talb-e-Ishhad had to be computed

Where in a suit the details of making Talb-e-Mowathibathad not been given or were suppressed in the plaint; the pre-emptors would be deemed to have failed to prove the performance of said Talb

Courts had correctly dismissed the suit in circumstances-Principles." In `Fazal Subhan and 11 others. v. Mst. Sahib Jamala and others' PLD 2005 Supreme Court 977 it was held that "section 13

Civil Procedure Code (V of 1908), O.VI, Rr.2 & 4

Right of pre-emption--Pleadings--Detailed particulars of Talb-e-Mowathibat are necessary to be mentioned in the plaint under O.VI, Rr.2 & 4, C.P.C. which require every pleading to contain only the material facts on which the claim or defence is made

Talb-e-Mowathibat is peculiar in its nature and explains that said Talb is to be performed in Majlis where the information of sale transaction was disclosed to the prospective pre emptor

Phenomenon of Talb-e-Mowathibat carries essentially the element of limitation, mentioning of date and time of the disclosure of information is thus absolutely necessary and Talb has to be made before dispersal of Majlis--Existence of Majlis being most material fact related to the performance of Talb-e-Mowathibat, the constituents of the Majlis are also necessarily to be mentioned

Such constituents of Majlis are nothing but the members thereof who ultimately are the witnesses to the Talb-e-Mowathibat

Peculiar nature of Talb-e-Mowathibat requires that where the description of Majlis, is of utmost importance, the members of such Majlis, who are the witnesses to such Talbs, are necessary to be mentioned in the plaint

When concerned with the question of limitation as well as the description of Majlis, the detailed particulars become necessary to be mentioned in the pleadings

Such exceptional cases are covered by O.VI, R.4, C.P.C." According to `Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin' PLD 2006 Supreme Court 309 it has been laid down that "S.13

Talb-e-Mowathibat, performance of--Proof--Pre emptor in plaint pleaded knowledge of sale on 14-4-1999, but witness deposed in general terms that he having acquired knowledge of sale about eight months .prior to date of making statement fulfilled requirement of Talb-e-Mowathibat and also sent notice of Talb-e-Ishhad on the next date of making Talb-e-Mowathibat

Witnesses of pre-emptor also, in general terms, stated that about one year and eight months ago, they, on coming to know of sale, informed pre-emptor, who, in their-presence, there and then made announcement of exercise of right of pre emption--Held, pre-emptor having failed to prove particular date of knowledge of sale had not discharged burden of proving performance of Talb-e-Mowathibat and Talb-e-Ishhad in accordance with section 13 of Punjab Pre-emption Act, 1991 in order to succeed in the suit for pre-emption." In Muhammad Suleman, v. Shaukat Ali 2009 SCMR 678 [Supreme Court of Pakistan] that "Needless to add that mere general assertion in plaint that as soon as plaintiff learnt about sale transaction, he made the declaration of his intention to pre-empt the sale would not be sufficient compliance of section 13(1) of the Pre-emption Act, 1991

In cases where `Talb' was not made according to the established requirements, then the same could also be fatal to pre-emptor's right of pre-emption

Pre-emption being a feeble right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record." In Haq Nawaz v. Muhammad Kabir 2009 SCMR 630 [Supreme Court of Pakistan] it has been observed that "S.13

Talb-e-Mowathibat--Mentioning of date, place and time of such Talb in plaint were essential requirements of law. The mentioning of date, place and time in the plaint regarding Talb-e-Mowathibat in a suit for pre-emption is sine qua non, because in the absence of proper date, place and time, the time provided in section 13(3) of the Punjab Pre-emption Act, 1991 for making Talb-e-Ishhad cannot be calculated correctly. `Mian Pir Muhammad v. Faqir Muhammad' PLD 2007 SC 302 and Mst. Bashiran Begum v. Nazar Hussain and another' PLD 2008 SC 559 relied. S.13--Talb-e-Mowathibat, performance of

Plaint mentioning only date and place but not time of making such Talb

Plea that judgment of Supreme Court in case of Mian Pir Muhammad PLD 2007 SC 302 pronounced on 12-12-2006 would not apply retrospectively to suit pending since 22-3-2001

Validity

Requirement of mentioning time, date and place of performance of such Talb was essential even in pending cases-'-Suit was dismissed in circumstances." In `Mst., Saleem Akhtar v. Ch. Shauk Ahmed' 2009 SCMR 673 [Supreme Court of Pakistan] it has been laid down that "S.13

Talbs, making of

Principles

Held it would be mandatory for a plaintiff in suit for pre-emption to incorporate in the plaint the date, time and place of performance of `Talbe-Mowathibat' and date of issuing the notice of Talb-e-Ishhad in terms of S.13, Punjab Pre-emption Act, 1991, otherwise plaintiffs suit deserved to be dismissed

Plaintiff having failed to plead qua the making of Talb-e-Mowathibat in the plaint according to settled parameters, her suit deserved to be dismissed."

14. Now I come to the other leg of argument of the learned counsel for the petitioner that annexing of photo copy of notice of Talb-e-Ishhad dated 28-9-2000 with the plaint covers the lacuna of non-mentioning the date, time and place of Talb-e-Mowathibat and source of knowledge in the plaint. I am not in agreement with this submission. Service of notice of ' Talb-e-Ishhad has been specifically denied by the respondent. Despite this the petitioner failed to prove the issuance and service of said notice by him through primary or secondary evidence or by examining the postman in this regard. In `Akhtar Nawaz etc. v. Muhammad Nazir etc.' 2005 YLR 77 it has been laid down that "S.13

Mere placing on record photo copies of notice of Talb-e-Ishhad without confronting those to witnesses would not prove the making of Talb-e-Ishhad. Courts below would be right in their concurrent judgments in dismissing pre-emption suit

High Court upholding concurrent judgments of Courts below and dismissing revision petition filed by pre-emptors/plaintiffs to challenge them". Art.76. Copies simpliciter of documents are not admissible in evidence in absence of production of original of documents. S.13. Notice of Talb-e-Ishhad would not be proved without bringing original of notice and without seeking permission for secondary t evidence. According to `Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105 [Supreme Court of Pakistan], It has been held that "S.12(1)(b)--Qanun-e-Shahadat (10 of 1984), Art.129(e)

Notice of Talb-e-Ishhad--Service to addressee

Proof

Endorsement of refusal on acknowledgement due receipt

Failure to produce postman as witness--Suit for possession through pre-emption was decreed by Trial Court in favour of pre-emptor

Lower Appellate Court allowed the appeal and dismissed the suit on the ground that service of notice of Talb-e-Ishhad to vendees was not proved by pre-emptor--High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court

Validity--There was no personal notice and mere endorsement of `refusal' did not constitute service, as vendees had denied service not only in written statement but also on oath while appearing as witness in Trial Court

Presumption, if any, in terms of Article 129, of Qanun-e-Shahadat, 1984, stood rebutted and it was for the pre-emptor to prove service by producing postman who allegedly made the endorsement which had not been done--Pre emptor failed to prove service of Talb-e-lshhad by leading evidence tenable in law--In reversing the judgment of Lower Appellate Court, High Court did not advert to such fatal aspect and law declared in such regard-Supreme Court set aside the judgment and decree passed by High Court and dismissed the suit filed by pre-emptor

Appeal was allowed." There are also contradictions in the statements of the P.Ws. In photo copy of notice Mark A, it is stated that the petitioner came to know of the impugned sale on 28-9-2000 through Amir Hussain (P.W.3). Notice was executed and sent on the same day i.e. 28-9-2000. The petitioner examined himself as P.W. and deposed that he came to know of the impugned sale about one year and 3 months ago. It is in his cross-examination that P.W.3 Amir Hussain informed him that mutation of sale has been attested 8 days before and the Patwari told him about the sale on the next day of the mutation. In his statement as P.W.3 Amir Hussain deposed that he informed the petitioner on the second day of coming to know of the impugned sale from Patwari. It is in his cross-examination that Patwari told him that the mutation has been attested 15/20 days ago. It is further stated that he had not informed the petitioner as to when the sale took place and what was sale price nor the petitioner inquired about the same. It is in the cross-examination of P.W.2 Muhammad Hashim that on visiting the Advocate, the plaintiff was asked by him to bring the copy of `Fard' or mutation from Patwari. It has come in cross-examination of P.W. Amir Hussain that the Advocate has not sent the plaintiff to Patwari to collect the same. These discrepancies make the statements of the P.Ws. unreliable as well.

15. For what has been discussed above, I have no hesitation to hold that both the courts below have returned findings in support of their judgments and decrees strictly in consonance with the evidence on file without misreading or non-reading it. There appears no illegality or material irregularity in the concurrent findings of both the courts below calling for interference by this court in its revisional jurisdiction. Revision petition has, therefore, no merits and the same is hereby dismissed with costs. A.R.K./S-157/L Revision dismissed.