2004 PLP 650 (MLD)

Kala Khan v. Ayub Khan 1992 MLD 2023 rel. Ch. Muhammad Sadiq for Petitioner. Khadim Hussain Qaisar for Respondent. Date of hearing: 2nd December, 2003. This revision petition assails the judgments and decrees dated 11-12-2000 and 15-5-2002 passed by the Civil Judge and Additional District Judge Kharian, respectively, deciding lis against the petitioner.

2. A short factual background of the case is that respondent purchased land measuring 20 kanals of village Garatian Tehsil Kharian District Gujrat vide Mutation No.812, sanctioned on 15-8-1994, for a consideration of Rs.3,00,

000. This sale was preempted by the petitioner claiming his superior pre-emptive right as a co-sharer in the Khata wherefrom the land was sold to the respondent being a "Shafi Sharik", "Shafi-Khalit" and Shafi Jar". He claimed that sale in question came to his knowledge on 19-9-1994 and he immediately exclaimed his intention of pre-empting it, having superior right as compared to the respondent and thus fulfiled Talbe-e-Muwathibat in the presence of witnesses whereafter by sending a notice on 22-9-1994 in writing, attested by two truthful witnesses under a registered cover acknowledgement due, performed Talb-e-Ishhad and then by filing the suit on 4-10-1994 discharged his obligation of performance of Talb-e-Khusumat.

3. The respondent being defendant in the suit controverted the allegations in the plaint of the petitioner, by filing his written statement, which necessitated framing of issues and recording of evidence. The learned trial Judge after doing the needful and according to his appraisal of evidence, dismissed the suit of the petitioner on 11-12-2000. The petitioner was non-suited in view of the findings of the trial Court on issue No.8 which related to performance of talbs in terms of section 13 of the Punjab Pre-emption Act 1991 (sic). The petitioner aggrieved of the decision of the trial Court dated 11-12-2000 filed an appeal before the Additional District Judge Kharian but remained unsuccessful as his appeal was dismissed on 15-5-2002, affirming findings of the trial Court on issues No.8 to

11. Petitioner has now come up before this Court, in revisional jurisdiction.

4. Learned counsel for the petitioner submits that both the Courts below have seriously misread the evidence on the file whereby it was abundantly proved that the petitioner has performed all the three talbs, as required by law, immediately/abruptly and thus claimed that the petitioner has wrongly been non-suited. He further submits that view taken by the Courts below that as the petitioner himself did not appear in the witness-box, Talb-e-Muwathibat is not proved, is misconceived, because the son of the petitioner who was also his constituted attorney, appeared as P.W. 4 and categorically deposed that the petitioner in hips presence had expressed his intention of filing pre-emption suit against the sale and thus performed the required Talb-e-Muwathibat. Learned counsel for the petitioner further contends that view of the Courts below regarding Talb-e-Ishhad is also erroneous because notice (Exh. P.4) in this behalf was duly proved to have been attested and served on the respondent, by his witnesses P.W. 1. to P.W.

3. This notice, according to him, was drafted by an Advocate but was written on behalf of the petitioner and was also thumb-marked by him and, as such, it could not be said that the petitioner did not issue notice to Talb-e-Ishhad, in his own name. He, in this behalf referred to section 14 of the Punjab Pre emption Act 1991 and to the case of Kaley Khan v. Ayub Khan (PL,I 1992 Peshawar 67) to contend that an argent is authorized under the law to issue notice of Talb-e-Ishhad in terms of section 13 of the Act, ibid.

5. Learned counsel appearing on behalf of the respondent besides refuting arguments of the petitioner supported the judgment of the two Courts below and urged that the petitioner did not perform talbs in accordance with law as he himself neither appeared in the witness-box to support the averment in the plaint nor personally issue, notice of Talb-e-Ishhad and Exh. P.4 which has been issued by an Advocate, cannot be considered as a notice on behalf of the petitioner. The learned counsel for the respondent urged that concurrent finding of facts, returned by the two Courts below are immune from scrutiny by this Court, in the revisional jurisdiction.

6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended with the revision petition. Petitioner, besides averring in his plaint of making Talb-e -Muwathibat and Talb-e-Ishhad, produced witnesses, besides statement of his attorney as P.W.4. P.W.1 is Muhammad Younis, (Postal Clerk), who proved issuance of Receipt No.591 dated 22-9-1994 as Exp. 1, to have been issued by the Post Office, against a registered letter in the name of the respondent. P.W. 2. is Aurangzeb (Postman). According to whom registered letter No.591 dated 24-9-1995 was received in the Post Office and was onwards delivered to the respondent, on the same day. This witness also proved signatures of the respondent on receipt (Acknowledgment due), which was marked, as A. P.W.3 is again a Postman, who distributed the registered letter to the 'respondent and obtained his signature in token of receipt thereof. P.W. 4 is Muhammad Asghar son of the petitioner who deposed that on 19-9-1994 in his presence, Riasat informed his father regarding the sale in question whereupon his father immediately exclaimed his intention of pre-empting the sale, having superior pre-emptive right. He also deposed that at this time another person Safdar was also present. P.W.5 Riasat Ali and P.W.6 Safdar are the witnesses of notice Exp. P.4 which has been proved by them to bear their signatures/thumb-impression. Both these witnesses unanimously deposed that notice Exp. P.4 was written in their presence and was thumb-marked by the petitioner. Statements of P.W. 4 to 6 if read together, leave no room for doubting performance of Talb-e-Muwathibat by the petitioner, instantly on gaining of knowledge of the sale from Riasat Ali P.W.

5. Petitioner while appointing his son as his attorney through Exh. P.4/2, mentioned that he due to his old-age is unable to follow the proceedings in his suit and thus authorized his attorney to make a statement on his behalf, before the Court. Age of the petitioner is mentioned in Exh. P.4/2 is 80 years. In view of the provisions of section 14 of the Punjab Pre-emption Act 1991, an agent is authorized to make even demand on behalf of the pre-emptor and these provisions became under scrutiny in the case of Kala Khan v. Ayub Khan 1992 MLD 2023 wherein it was held that an agent of the pre-emptor can competently do the needful on behalf of his principal. Above all P.W.4 in his statement before the Court which remained un-shattered during the cross-examination, categorically stated that the petitioner performed Talb-e-Muwathibat in his presence. I Think that son of the pre-emptor who is also a duly constituted attorney can validly prove the making of Talb-e-Muwathibat, on behalf of his principal and if the pre-emptor himself did not appear in the witness-box, due to his old-age and ailing health, he cannot be non-suited on this account because making of Talb-e-Muwathibat, otherwise, flows from the evidence on the file of its proof, to have been made. '

7. On the question of performance of Talb-e-Ishhad by the petitioner, Courts below have taken the view that since, notice Exh.P.4 has been written by an Advocate in his own name, it cannot be considered as a notice from the petitioner and consequently concluded that the petitioner did not perform Talb-e-Ishhad. Notice Exh. P.4 has no doubt been drafted by Ch. Sajjad Ahmad Advocate but it has been prepared and written on behalf of his client Muhammad Shafi, the D petitioner. This notice has at the bottom, name of the petitioner, beneath which it has been thumb-marked by him. I have examined the entire notice which in no manner can be graded as a notice from the Advocate rather it is a notice on behalf of the petitioner from his counsel. Besides section 14 of the Punjab Pre-Emption Act, 1991 authorize an agent to make the required demands on behalf of the pre-emptor and a similar view was taken by the High Court of Peshawar jurisdiction, in the case of Kala Khan v. Ayub Khan reported as 1992 MLD 2023 and it was mandated that notice by the appointed agent, conveying the Talb-e -Ishhad is sufficient compliance of the law. Hon'ble Supreme Court of Pakistan in the alighted judgment in the case of Muhammad Gul v Muhammad Afzal reported as (1999 SCMR 724) has very candidly mandated that notice expressing Talb-e-Ishhad sent to the pre-emptor after 10 days of making of Talb-e-Muwathibat coupled with statement of the pre-emptor on oath, is substantial compliance of legal requirements of section 13(3) of the Punjab Pre-Emption Act, 1991. In another case of Abdul Malik v. Muhammad Latif (1999 SCMR 717), the Honourable Supreme Court of this country while scanning provisions of section 13 (3) of the Punjab Pre-emption Act 1991, very graciously observed that notice of Talb-e-Ishhad attested b5 the two witnesses, mentioning performance of immediate Talb-e-Muwathibat, amounts to substantial compliance of the provisions of law. A similar view was again affirmed by the Honourable Supreme Court, in the case of Hajji Noor Muhammad v. Abdul Ghani and 2 others reported as 2000 SCMR 329.

8. Petitioner having pleaded performance of Talb-e-Muwathibat on 19-9,1994 and Talb-e-Ishhad on 22-9-1994, filed suit in hand on 4-10-1994 has substantially proved the performance of all the three talbs and thus discharged the onus of proof, placed on his shoulders. Both the Courts below have taken an incorrect view which is contrary to the evidence on the file and thus, their, decisions are tainted with material irregularity and are not sustainable under the law. I consequently set-aside findings of both the Courts below on issue No. 8 and answer it in favour of the petitioner/plaintiff.

9. Since issues No. l to 7 and 9 have concurrently been answered in favour of the petitioner and there being no cross appeal or objection by the respondent findings on these issues are affirmed. As regards issue No. 11 Muhammad Shafi son of Ahmad Din is undeniably a co-sharer in the Khata in question as evidence in Exh.P.5 Jamabandi for the year 1994-95, whereas respondent has no such superior qualification of being "Shafi-Sharik" and thus I hold that the petitioner has a superior pre emptive right as against the sale in favour of the respondent.

10. For what has been discussed above, I conclude that the petitioner (Muhammad Shafi) has a superior pre-emptive right and has substantially performed all the three talbs as required by section 13 of the Punjab Pre-emption Act 1991 and thus his suit could not have been dismissed. I accordingly accept this revision petition and setaside the judgments and decrees of both the Courts below, and grant the petitioner decree for possession through pre-emption as prayed subject to deposit by him an amount of Rs.3,00,000 after deducting 1/3rd amount if any already deposited by him, on or before 2-3-2004 failing which the suit or the petitioner/plaintiff shall be deemed to have been dismissed. There will be no order as to costs. S.A.K./M-10/L Revision accepted.