2015 PLP 808 (SCMR)

AMIR HANI MUSLIM, J.

This Appeal is directed against the judgment dated 17-5-2012 passed by the Lahore High Court, Rawalpindi Bench, whereby the Civil Revision filed by the appellant was dismissed.

2. Brief facts of the case are that the respondent filed a suit for possession through pre-emption, pleading therein that the appellant purchased the suit property, fully described in the title of the plaint, from one Muhammad Khan through registered sale deed No.3924 dated 29-5-1997 for a consideration of Rs.1,15,000 but showed the fake sale consideration of Rs.1,40,000 to defeat his right of pre-emption. The respondent claims that he came to know about the subject sale for the first time on 4-7-1997 at 5-00 p.m. through one Fazal Elahi, in presence of one Rab Nawaz, so he made Talb-i- Muwathibat then and there. On 8-7-1997, the respondent sent a notice of Talb-i-Ishhad duly signed by two truthful witnesses to the appellant through registered post to fulfil the requirement of Talb-i -Ishhad having superior right of pre-emption qua the appellant being Shafi Sharik and Shafi Jar. The suit was contested by the appellant by filing written statement. Upon the divergent pleadings of the parties, the trial Court framed various issued and recorded evidence of the parties. By judgment dated 20-9-2008, the trial Court dismissed the suit of the respondent. Feeling aggrieved, the respondent filed Appeal before the Additional District Judge, Rawalpindi. On 26-2-2009, learned Appellate Court allowed the Appeal and decreed the suit of the respondent. The appellant filed Civil Revision before the learned High Court which was dismissed vide impugned judgment dated 17-5-2012. Hence this Appeal by leave of the Court.

3. It is contended by the learned counsel for the appellant that the learned High Court had overlooked the import of section 13(3) of the Punjab Pre-emption Act, 1991 which mandates that two truthful attesting witnesses of Talb-i-Ishhad are required to be produced besides the scribe to prove the Talb-i-Ishhad. According to the learned Counsel the appellant has only examined one attesting witness, therefore, the findings in favour of the respondent were wrongly recorded by the learned High Court and the appellate Court.

4. We have heard the learned counsel for the appellant at length and have perused the record. In the case in hand, Rab Nawaz and Fazal Ellahi were the attesting witnesses of the notice of Talb-i -Ishhad issued on 8-7-1997. One of the attesting witnesses namely Fazal Ellahi appeared in the witness-box as P.W.2, but he did not support the case of the respondent whereas the second attesting witness of Talb-i-Ishhad namely Rabnawaz was not produced by the respondent for which no plausible explanation had been offered. This Court in the case of Dawa Khan v. Muhammad Tayyab (2013 SCMR 1113) and unreported judgment passed by a five Member Larger Bench of this Court in the case of Muhammad Abaidullah v. Ijaz Ahmed (Civil Appeal No.543 of 2008) has already decided the consequences of non-appearance of truthful attesting witnesses. It was held that two truthful attesting witnesses are required to be produced by the party in order to prove the Talb-i-Ishhad as mandated by section 13(3) of the Punjab Pre-emption Act. Non-production of one of the witnesses of the notice of Talb-i-Ishhad by the party asserting right of pre-emption would lead to the conclusion that it has failed to prove the Talb-i-Ishhad.

5. The learned counsel for the respondent did not appear nor any contention has been received from him.

6. Admittedly, in the case in hand, the respondent has failed to produce two truthful attesting witnesses to prove Talb-i-Ishhad, in terms of section 13(3) of the Punjab Pre-emption Act. We, therefore, hold that the respondent has failed to prove the Talb-i-Ishhad. The learned High Court as well as the First Appellate Court has misconstrued section 13(3) of the Act by recording findings against the appellant.

7. We, for the aforesaid reasons, allow this Appeal, set aside the impugned judgment as well as the judgment of the First Appellate Court and maintain the judgment of the trial Court. Consequently the suit of the respondent is dismissed with no order as to costs. MWA/N-4/SC Appeal allowed.