2006 PLP 549 (CLC)

SYED HAMID ALI SHAH, J.

Brief facts respondent No.2 was owner of agricultural land measuring 20 Kanals, 5 Marlas in Chak No.26/EB, Tehsil Arifwala, which he alienated to respondent No.1 through Mutation No.1 through Mutation No.1019 dated 25-5-1996. Petitioner filed a suit for pre-emption against respondents alleging therein that the land has been transferred through exchange, which is a fake transaction and the real transaction inter se the parties was a sale. Petitioner being Shafi Shareek, Shafi Khaleet, and Shafi Jar has the superior right and to defeat the same, the transaction was concluded secretly. Respondents contested the suit, filed written statement, controverted the assertions made in the plaint and raised various preliminary objections. Learned trial Court out of the divergent pleadings of the parties framed nine issues and after recording the evidence decreed the suit in favour of the petitioner vide judgment and decree, dated 20-4-1999. Respondent No.1 assailed the decree, dated 20-4-1999 in appeal and the Appellate Court while holding that the petitioner has failed to prove Talb-e-Ishhad in accordance with the provisions contained in section 13 of the Punjab Pre-emption Act, 1991, has extinguished his right of pre-emption. The appeal was accepted, the judgment and decree passed by the learned trial Court was set aside and the suit was dismissed vide judgment and decree dated 15-2-2002.

2. Learned counsel for the petitioner has submitted that the 'Appellate Court has non-suited the petitioner on the ground that no express reference to Talb-e-Muwathibat at the time of Talb-e-Ishhad was made. It was held by the learned Appellate Court that mere assertion in the pleadings is not enough and as the witnesses of the petitioner have not deposed about Talb-e-Muwathibat while making Talb-e-Ishhad, no Talb-e-Ishhad has been performed in accordance with law. It was added by the learned counsel that the impugned finding of the learned Appellate Court, is not legally sustainable as Talb-e-Ishhad stands proved through Exh.P.1, the notice which the petitioner served upon the respondents. The notice itself stipulates that Talb-e-Muwathibat was performed. The petitioner has produced the receipt of the notice Exh.P.2 and registered A.D. as Exh.P.3. The contents of the notice have not been denied and the performance of Talb-e-Ishhad on the basis of these documents stands sufficiently proved. Learned counsel has submitted that learned Court has relied on the case of Haji Qadir Gul v. Moembar Khan and others 1998 SCMR 2102 which is on different premises. The facts of that case do not qualify to the instant proceedings as in that case no notice was given to the minor. Learned counsel while referring to the case of Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 has contended that statement of the plaintiff on oath coupled with written notice sent to the defendant within 10 days of Talb-e-Muwathibat meet the legal requirement of section 13(3) of the Punjab Pre-emption Act, 1991. It was then contended' by the learned counsel that the Appellate Court has upheld the impugned decision of the learned trial Court with regard to the other issues and no cross-objections have been filed to challenge the concurrent findings of the learned Courts below on Issues Nos.1 and 2 wherein it has been held that the transaction was not exchange but was a sale for consideration of Rs.60,000 (Rupees sixty thousand only) per acre. The respondents' failure to file cross-objections is fatal and the respondents cannot defend the decree of the learned Appellate Court. Learned counsel in support of this contention has referred to the case of Abdul Haq and others v. Shaukat Ali and 2 others 2003 SCMR 74.

3. Learned counsel for the respondents on the other hand, has fully supported the finding of the learned Appellate Court that Talb-e-Ishhad has not been performed according to law. It was contended that no notice was received by the respondents and D.W.1 has specifically denied this fact. Learned counsel while 'referring to the cases of Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Muhammad Hassan and 2 others v. Shafi-ud-Din and 2 others PLD 1995 Quetta 29 and Anwar Ali v. Shahnawaz and others PLD 1989 Kar. 246 has contended that while making second Talb i.e. Talb-e-Ishhad, the reference to the first demand/Talb-e-Muwathibat is essential requirement and non-fulfilment of this requirement would not entitle the plaintiff to decree of, pre-emption and the right of pre-emption stands extinguished. Learned counsel has lastly contended that the scope of the revision is limited and the finding of fact reached in first appeal on-the basis of evidence on record is not open to be reversed, even if contrary view was possible on the same evidence. The case of Muhammad Nasir Mehmood and others v. Rashida Bibi 2000 SCMR 1013 was referred in support of this contention.

4. Heard learned counsel for the parties and perused the record.

5. Perusal of the record reveals that the petitioner in para.5 of the plaint has asserted that he came to know about the sale on 31-5-1996 at 7 O'Clock in the morning when the petitioner visited Rashid Abroad Qamar at his Baithak in Chak No.26/EB, where Lal Khan and Gulzar Hussain were present. Petitioner immediately announced his intention of exercising right of pre-emption on having the knowledge. It was further asserted in para.7 of the plaint that notice in presence of the witnesses was sent and receipt thereof was taken. It reflects from notice Exh.P.1 that the petitioner has specifically mentioned in detail about the factum of Talb-e-Muwathibat. Relevant part is reproduced as under: Petitioner while appearing as P.W. has, in due corroboration with the averments of the plaint and the notice, stated that he immediately on knowing about the sale announced his intention of pre-emption and two days later he obtained relevant copies and issued notice through Rana Sahib, which contains his thumb-mark Exh.P.1/1.

6. The right of pre-emption of a person extinguishes if demand of pre-emption under the provisions of Punjab' Pre-emption Act, 1991 is not made. Talb-e-Ishhad as provided in section 13(3) is required to be made by a pre-emptor who has made Talb-e-Muwathibat and soon thereafter but not later than two weeks from the date of knowledge, by sending a notice in writing, attested by two witnesses under registered cover, acknowledgment due to the vendee affirming his intention to exercise the right of pre-emption. The petitioner has made Talb-e-Muwathibat, issued notice (Exh.P.1) through registered A.D. (Exh.P.3) and postal receipt in this respect has been produced as Exh.P.2. The notice has been signed by two witnesses Lal Khan son of Sikandar and Gulzar Hussain son of Abdul Aziz (Exh.P.1/2). This is sufficient requirement of section 13 of the Punjab Pre-emption Act (IX of 1991). No format has been prescribed to issue the notice as per requirement of section 13(3) of the Act. It was argued by petitioner in the case of Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219 has dispelled the arguments that the notice of Talb-e-Ishhad where the performance of Talb-e-Muwathibat has not been mentioned is improper Talb-e-Ishhad and suit on the basis of such Talb-e-Ishhad liable to be dismissed in view of the judgments reported as 1995 SCMR 1510, 1998 SCMR 2227 and 1999 SCMR 2167. The apex Court dispelled the arguments and held that tendering of notice by the pre-emptor is sufficient compliance of section 13(3) of the Act. It has been held in the case of Muhammad Gul v. Muhammad Afzal (supra) that statement of plaintiff on path coupled with written notice within 10 days of Talb-e-Muwathibat is substantial compliance of legal requirement of section 13(3) of the Act.

7. The learned Appellate Court has non-suited the petitioner only on the ground of non-mention of Talb-e-Muwathibat while performing Talb-e-Ishhad. The finding of the Appellate. Court is erroneous both on law and facts. Petitioner has proved the performance of Talb-e-Ishhad and mention therein of Talb-e-Muwathibat and the notice of Talb-e-Ishhad by all means meets the requirement of provisions of section 13(3) of the Act.

8. For the foregoing, the instant revision petition is allowed, the judgment and decree dated 15-1-2002 passed by the learned Appellate Court to the extent of its finding on the question of performance of Talb -e-Ishhad is set aside and decree of the learned trial Court is upheld. No order as to the costs. M.H./M-17/L Revision allowed.