P L D 1999 Lahore 470 (PLP)

MALIK MUHAMMAD QAYYUM, J.

This is pre-emptor's first appeal from the judgment and decree of the trial Court dated 21-7-1998 dismissing their suit for possession through pre-emption against the respondents.

2. The dispute relates to 84 Kanals and 3 Marlas of land situated in Mauza Kot Pindidas Tehsil Ferozewala District Sheildiupura which was owned by Jamil Khan and others, who alienated the same in favour of respondents Nos. l and 2 in the ratio of 60 Kanals, 3 Marlas and 24 Kanals respectively for a sum of Rs.5 Lacs through a registered deed of sale. The suit was instituted on 8-11-1995 and it was claimed that~the pre-emptor-plaintiff had superior right of pre-emption as they were co-sharers in the land; they had common source of irrigation and were the owners of contiguous land. It was pleaded that.the appellant-plaintiff learnt of the sale on 4-11-1995 and immediately proclaimed their intention to pre-empt the sale whereafter the registered notices were also sent.

3. The suit was contested by the respondents on various pleas inter alia that ,the., appellants have waived their right of pre-emption; that no talbs as required by law have been made and that the appellants-pre-emptors do not possess superior right of pre-emption. On the pleadings of the parties learned Civil Judge framed the following issues:- (1) Whether the plaintiffs have got superior right of pre-emption? OPP (2) Whether the plaintiffs have waived their right of pre-emption? OPD (3) Whether the plaintiffs have not fulfilled the pre-conditions under section 13 of the Pre- emption Act, 1991, if so, its effect? OPD (4) Whether the plaintiffs have no cause of action and they are stopped by their words and conduct to bring this suit? OPD (5) Whether the defendants are entitled for special costs? OPD (6) Whether the sale-price is ostensible, if so, what is the market value? OPP (7) Whether the sale-price mentioned in the transaction was fixed in good faith and actually paid? OPD (8) Relief

4. In order to prove their case the appellants examined Bagh Ali, P. W.1 Muhammad Sarwar P.W.2, Jafar Ali, P.W.3, Muhammad Azam PWA, Statement of Abdul Sattar one of the appellants was recorded twice once in affirmative and for the second time in rebuttal as P.Ws.5 and 7 respectively. The evidence of the respondents comprises of the statements of Muhammad Hussain '~atwari, D.W.1, Ibrar Khan D.W. 2 and Abdul Rehman D.W.3. Statements of Muhammad Ramzan and Miran Bakhsh respondents were recorded as DWA and D.W.5. It may be mentioned that respondents Nos.l and 2 had transferred the land in favour of their father respondent No:3 through Mutation No.3086 sanctioned oti .19-9-1995. The learned Civil Judge after thorough appraisal of evidence on record came to the conclusion that the suit of the plaintiff was without any merit and dismissed the same. His judgment was primarily based upon his findings on Issue No.3 under which he held that the appellants had failed to make 'Talb-e-Muwathibat' in accordance with law. The suit was dismissed on 21-7-1998.

6. Rana Abdul Rahim, learned counsel for the appellants argued with vehemence that the appellants had specifically pleaded that they came to know of the sale in a sitting on 4-11-1995 and on that very date proclaimed their intention to pre-empt the same. It was pointed out by the learned counsel that the appellants had examined as many as 5 witnesses to prove this fact and the findings to the contrary recorded by the trial Court were nor borne out by the record.

7. We regret our inability to agree with the learned counsel. It is true that, para.4 of the plaint the appellants had specifically stated that it was on 4-11-1995 that in a meeting in the Dera of Maqbool Ahmad the appellants had learnt through Muhammad Azam son of Ghulam Nabi and Muhammad Sarwar son of Muhammad Siddiq that the respondents had purchased the land and that in the same Majlis the appellants proclaimed their intention to pre-empt the sale and on the next date took alongwith them Jafar and Sarwar to the respondents and offered them consideration for the purchase of land which they refused.

8. Unfortunately for them, however, when the appellant Abdul Sattar appeared as his own witness as P.W.5 he made a contradictory statement and deposed that when he learnt in the Dera of Maqbool Ahmad that the land in question had been sold to the vendees and on the next day he alongwith others went to the defendants and asserted his right of pre-emption and asked the land to him . . . .

9. It is significant to notice that though according to the statement ,of the plaintiff's own witness he came to know of the sale a day earlier but he gave out the intention to pre-empt not in the same sitting but on the next day,

10. Moreover, the appellant is contradicted in this behalf by the plaint itself wherein it was stated that on 4-11-1995 when he learnt of the sale he at once gave out his intention to pre-empt the sale but while appearing as a witness his deposition was that it was on the next day that he expressed his intention to preempt the sale. This inherent contradiction in the stand of all the appellants have remained unexplained. This state of evidence clearly supports the findings of the trial Court that the appellants had failed to establish through convincing evidence Talb-e-Muwathibat.

11. According to explanation to section 13 of the Punjab Pre-emption Act, 1991 Talb-e-Muwathibat means immediate demand by a pre-emptor in the sitting of meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. The word immediate is of significance and clearly obviates any delay in making the demand. It is unnecessary to go into other evidence as according to the statement of the plaintiff himself there was delay at least of one day in making Talb-e-Muwathibat. In Zatar Ali v. Zainul Abidin and another 1992 SCMR 1886 it was observed that the pre-emptor should immediately declare that he would exercise the right of Shufa against the sale. Such a declaration shall have to be before the dispersal of Majlis in which the plaintiff gains knowledge about the sale. To the same effect is the judgment in Akbar Khan v. Pehlwan 1996 MLD 1415. Thejudgment and decree of the trial Court is, therefore, unexceptionable: In view of what has been stated above, this appeal has no merit and is, therefore, dismissed with costs. H.B.T./A-132/L Appeal dismissed.