1998 PLP 1190 (CLC)

To pre‑empt sale of land, measuring 35 Kanals, situated in the revenue estate of Ganjawali Khurd Tehsil and District Sialkot, a suit was filed by the petitioners, herein, Muhammad Anwar and others on the plea of having a superior right, being a co‑sharer in the Khata, which suit was dismissed by the learned Civil Judge by his judgment, dated 21‑7‑1994, on the ground that the ,petitioners had failed to prove that they had made Talb‑e‑Muwathibat and Talb e‑Ishhad.

2. The appeal filed by the petitioners, was dismissed by the learned Additional District Judge, Sialkot, on 16‑6‑1997 and in consequence, this revision has been instituted, to challenge the judgments of the two Courts below.

3. Learned counsel for the petitioner, argued, that there existed sufficient evidence, to show, that Talb‑e‑Muwathibat and Talb‑e‑Ishhad were made, in accordance with the requirements of Islamic Injunctions and that mere fact, that the petitioners were found to have acquired knowledge on 23‑10‑1991, would not lead to as, inference, that Talb‑e‑Muwathibat was not made. He also submitted that Talb‑e‑Ishhad having been proved, the petitioners could not be non‑suited, on the ground, that notice of Talb‑e‑Ishhad was not sent within 14 days, as the violation of the statutory rules, would not invalidate the Talbs proved on record. Reliance was placed on PLD 1994 SC 1 and PLD 1997 SC 883.

4. Conversely, learned counsel for the respondents, submitted, that concurrent findings of facts were recorded by the two Courts below, whereby, it has been held, that the petitioners could not prove requisite Talbs and that the findings having not been shown to be based on any misreading of the record cannot be interfered with in revisional jurisdiction. He further argued, that the source of knowledge of sale, date of acquiring knowledge of sale, place of knowledge were not disclosed in plaint and that the persons in whose presence, Talb‑e‑Muwathibat was claimed was not mentioned in the plaint. Referring the evidence on record, learned counsel for the petitioners, submitted, that there were three contradictory statements, in regard to the acquisition of knowledge, inasmuch as, one witness, speaks of 2‑1/2 months after the mutation, the other talks of three months and the third mentioned the same as four months. It was contended, that the alleged informer was not produced. Lastly, it was submitted, with vehemence, that the provisions regarding service of notice of Talb‑e‑Ishhad having been declared to be in conformity with the Injunctions of Islam, the petitioners are bound to be non‑suited as they did not act in terms thereof.

5. The submissions made by learned counsel for the parties have been given due consideration while the evidence led by the two sides has been reviewed, with the assistance of learned counsel for the two sides.

6. The sale, pre‑empted in the suit, admittedly took place through Mutation No. 143, dated 30‑7‑1991. In para. 3 of the plaint, the petitioners maintained, that the sale was concealed from them and that on inquiring knowledge of sale, Muhammad Anwar, one of the petitioners, made announcement of his intentions, to pre‑empt the sale by filing a suit in the same Majlas' and subsequently, he alongwith two persons, namely, Muhammad Iqbal son of Allah Rakha and Fareed Ahmad son of Allah Rakha, approached the vendee/respondents, in the form of a Punchait and also sent a notice on 12‑I 1‑1991. The suit has been filed, by Muhammad Anwar, Muhammad Sadiq, sons of Muhammad Din, Javed Iqbal, Zahid Iqbal, Sajjad Iqbal sons of Muhammad Iqbal. Last three persons, are shown to be minors while Muhammad Anwar and Muhammad Sadiq are represented as major. As per plaint, declaration of intentions to file suit was made by Muhammad Anwar, petitioner No.l alone. Neither it is claimed, that Talb‑e‑Muwathibat was made by other pre‑emptor Muhammad Din nor it is asserted, that any Talb‑e‑Muwathibat was made on behalf of petitioners 3 to

5. The plaint, thus, does not indicate or at least claim, making of Talb‑e‑Muwathibat by plaintiffs Nos.2 to 5 in the suit. It is also observed, that no date of acquiring knowledge or name of the informer has been given in the plaint.

7. In the evidence, Muhammad Anwar plaintiff No. 1, appeared as P. W.1 and deposed, that 2‑1/2 years before, the land was sold, he had gone to Sialkot Kachery, when Zahid Councillor, informed him about the sale and that he announced his right of pre‑emption and intentions to file a suit to pre‑empt the sale. Later, he alongwith three persons, went to vendee, when they met mother of the vendee, who was apprised of the whole situation and was required, to advise her son to transfer the land on receiving sale price, which was refused. It is also deposed that subsequently, a notice was sent. He further deposed, that three months and 4/5 days later than the sale, he was informed about the same by Zahid for the first time. The statement, in chief, therefore, does not claim making of Talb‑e‑Muwatliibat by rest of the plaintiffs. As per statement of P.W.1, the date of knowledge, would be 4/5‑11‑1991, as the sale took place on 30‑7‑1991 and he claims to have acquired knowledge three months and 4/5 days later. In this way, the Talb‑e‑Muwathibat is claimed to have been made by only one pre‑emptor on 4/5‑11‑1991. As against this, from the certificate copy of the mutation, produced in evidence, it is evident, that the same was applied on 23‑10‑1991. In this way, the date of 23rd of October, 1991 become relevant as the petitioners do not claim to have made any Talb‑e‑Muwathibat on this date, despite having knowledge of the sale. It is not possible, that the petitioners would apply for the copy of mutation, without having knowledge of the same. The argument, that even if, the petitioners had acquired knowledge on 23‑10‑1991 it could not be inferred that Talb‑e‑Muwathibat was not made is devoid of merit, inasmuch as, the petitioners did not lead any evidence or claim making of any Talb‑e‑Muwathibat on this date, when they, claimed to have firstly acquired knowledge of same. Similarly P. W.1, stated, that at the time, when he took Punchiat, he met mother of the vendee, while in the notice, it was claimed, that petitioner No. l and his witnesses met the wife and children of the vendee. Zahid Councillor, who is stated to be informer, was not produced in the evidence. P.W.2 Muhammad Iqbal, deposed, that he alongwith P.W.1 Fareed, went to the house of vendee‑defendant and met his mother. This statement was also contradictory to the plea raised in the notice, whether it was claimed, that they had met wife of the defendant. Similarly, this witness does not speak of any Talbs having been made by plaintiffs Nos.2 to

5. In his cross‑examination, he stated, that the petitioners acquired knowledge of sale 2‑1/2 months after the sale. Calculating this period, from the date of mutation of sale, the date of knowledge, according to this witness, will be 15‑10‑1991. This statement is also contradictory to the statement of P.W.1, who claims knowledge on 4/5.‑11‑1991. P.W.3 Ghulam Fareed, also stated, that when he alongwith P.W.1, and P.W.2, went to the house of vendee they met his mother, though in the notice, it was claimed, that they had met the wife of the vendee. He also does not claim any Talbs having been made by plaintiffs Nos.2 to 5 not he is witness of Talb‑e- Muwathibat as he does not claim to be present at the time when the alleged knowledge of sale was acquired by the petitioner. In his cross‑examination, he deposed, that the knowledge of sale was acquired by the petitioner 2/3 months after the sale, which will come to either 30‑9‑1991 or 30‑10‑1991.

8. From the evidence, it is, therefore, desertionable, that contradictory statements have been made as to the date of acquisition of knowledge, no Talb‑e‑Muwathibat was claimed to have been made on 23‑10‑1991, when on acquiring knowledge of sale, application for obtaining certificate copy of mutation was moved, Zahid Councillor, the alleged informer, who was the only witness, in whose presence, Talb‑e‑Muwathibat was claimed to have made, was not produced, no plea was raised nor evidence led to prove Talb‑e‑Muwathibat or Talb‑e‑Ishhad by plaintiffs Nos.2 to

5. Likewise, the notice of Talb‑e‑Ishhad, A which was required to be given within 14 days from the date of Talb‑e- Muwathibat, is actually claimed to have been sent on 12‑11‑1991 i.e., after 18 days and in this way, the same could not be proved. The argument, that the Talb‑e‑Ishhad was otherwise proved and, therefore, the violation of statutory rule should not non‑suit the petitioners, is without substance, inasmuch as, Talb -e‑Ishhad, otherwise could not be proved, as the statements made by the three witnesses, have been found to be self‑contradictory and unworthy of reliance.

9. In Muhammad Rafiq v. Muhammad Ashiq and 2 others (1996 SCMR 441), it was held, that the limits of two weeks, as laid down in section 13(3) of Punjab Pre‑emption Act, applies even to a case where in the absence of postal facilities, intending pre‑emptor elects to make a personal demand in the presence of two truthful witnesses.

10. In Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 SC 883) relied upon by learned counsel for the petitioners, it was held, that pleadings are to be liberally construed and if Talb‑e‑Muwathibat is alleged in the plaint, issue in this regard is framed and evidence is led, then even if the fact was not stated with clarity and in detail in the pleadings, the Court is empowered to give findings on such issue in the light of evidence led.

11. The precedent case, does not advance the case of petitioners nor help them in any respect, inasmuch as, in the present case, the two Courts below, on consideration of the entire evidence and taking care of the conflicting statements, concluded that Talb‑e‑Muwathibat and Talb‑e‑Ishhad were not proved. After reconsideration of the entire evidence and taking in view, the statements made by the witnesses of the petitioners, I have myself found, that the evidence led by the petitioners, in the matter of two Talbs was self‑conflictory and that Talb‑e- Muwathibat and Talb‑e‑Ishhad could not be proved in accordance with the Injunctions of Islam and also that the petitioners, though required to make declaration of right and intention to enforce the same, immediately on acquisition of knowledge of sale, failed to do the same and that in the evidence and pleading, making of Talb‑e‑Muwathibat by plaintiffs Nos.2 to 5 was missing while the alleged informer, who was claimed to be the only witness of Talb‑e‑Muwathibat, by one of the plaintiffs, was not produced and, therefore, the findings recorded by the two Courts below, do not suffer from any misreading of the record or legal infirmity.

12. For the reasons above, no ground is made out for interference and the petition having been found to be devoid of merit, is dismissed, leaving the parties to bear their own costs. A.A./M‑639/L Petition dismissed