2014 PLP 1046 (YLR)

ABID AZIZ SHEIKH, J.

Through this civil revision the petitioner, who was defendant in pre-emption suit has challenged the judgment and decree dated 18-10-2005 passed by the learned Additional District Judge Wazirabad, whereby the appeal filed by the respondents/plaintiffs was accepted and the suit filed by the respondents/plaintiffs, which was dismissed by the learned Civil Judge Ist Class, Wazirabad, vide judgment and decree dated 11-1-2005, was decreed.

2. Compendiously and tersely, the facts forming part of the civil revision are that respondents Nos. 1 to 3 jointly filed a suit for possession through pre-emption against the petitioner/defendant with the contention that the defendant purchased suit land measuring 23 kanals falling in Khewat No. 188 Khatooni Nos. 714 to 727 according to Jamabandi for the year 1998-99 situated in village Mohlanki Tehsil Wazirabad, through registered sale-deed dated 23-5-2001 for a consideration of Rs.4,00,000, whereas its ostensible price was recorded as Rs.10,00,

000. The petitioner/defendant contested the suit and the learned trial Court after framing the issues and recording the evidence dismissed the suit of the respondents/plaintiffs primarily on the ground that the respondents/plaintiffs failed to fulfil the requirement of Talbs. The respondents/ plaintiffs being aggrieved filed an appeal before the learned Additional District Judge Wairabad, whereby vide impugned judgment and decree dated 18-10-2005, the appeal of the respondents/plaintiffs was allowed and the judgment passed by the learned trial Court dated 11-1-2005 was set aside, consequently the suit for pre-emption filed by the respondents Nos. 1 to 3 was decreed. Hence, this civil revision, which was admitted to regular hearing on 24-11-2005.

3. The learned counsel for the parties addressed their respective arguments only on the question of Talbs raised in issue No.6, which is reproduced hereunder:- "Whether plaintiffs have fulfilled the requirements of Section 13 of Punjab Pre-emption Act? OPP"

4. The learned counsel for the petitioner argued that the requirements of "Talb-e-Muwathibat and Talb-e-Ishhad" under section 13 of Punjab Pre-emption Act, 1991 (ACT) have not been fulfilled by the respondents/plaintiffs. He argued that the suit was filed by all the three respondents/plaintiffs being pre-emptors, however, only one respondent/plaintiff (Muhammad Afzal) appeared in the witness box as P.W.4, therefore, the suit to the extent of two respondents/plaintiffs i.e. Ikram Ullah and Iftikhar Ahmad was liable to be dismissed, as they have not given any direct evidence to substantiate their oral plea of Talbs asserted in the plaint. In this regard reliance is placed on the case of Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819). The learned counsel for the petitioner referred Para 4 of the plaint to submit that no date of notice of Talb-e-Ishhad was given in the plaint, therefore, this omission is fatal to the suit. Reliance is placed on the judgments of august Supreme Court of Pakistan in the cases of Ghafoor Khan v. Israr Ahmad (2011 SCMR 1545) and Main Pir Muhammad and others v. Faqir Muhammad (PLD 2007 SC 302). Adds that as per averments of the plaint as well as the statement of Riaz Ahmad Postman, who appeared as P.W.1, the notice was not served and the same was returned, and original was placed on record as Exh.P.1 and Exh.P.2. It is argued that mere sending of notice of Talb-e-Ishhad is not sufficient but it should be served on the vendee to constitute valid Talb-e-Ishhad. The learned counsel further argued that there are material contradictions between the statements of P.Ws., which are also in conflict with the contents of the plaint. The learned counsel for the petitioner also referred to the statements of P.Ws. Nos.2, 3 and 4 to argue that these witnesses are not truthful as required under section 13 of the Act, hence their evidence cannot be relied upon. Reliance is placed on the case reported as Ghafoor Khan v. Israr Ahmad (2011 SCMR 1545) (supra). It is further argued that as per statement of P.W.4, the first information regarding sale came through telephone but admittedly no talb was made at that time. Submits that the impugned order passed by the learned Appellate Court is result of misreading and non-reading of evidence and material irregularities.

5. Conversely, the learned counsel for the respondents argued that the requirements of Talbs under section 13 of the Act are fulfilled. It is contended that there is no requirement of law that date of notice of Talb-e-Ishhad should be mentioned in the plaint. Further submits that minor discrepancies in the plaint and the statements of the witnesses are not fatal to the suit of pre-emption. It is also argued that though the respondents/plaintiffs were telephonically informed of the sale as averred in the statement of P.W.4, but it is not information under section 13 of the Act and further there is a difference between the "sale" and "fact of the sale" And because the detail of sale was not given on telephone, therefore, there was no fact of sale in knowledge of respondents/plaintiffs for making Talb-e-Muwathibat. Reliance is placed on "The Muslim, Law of Pre-Emption from Kitab-al-Shufa of Fatawa-i-Alamgiri and Fatwa-i-Qazi Khan. Further argued that there is no difference between Baithak, Dera and Majlas-e-aam, therefore, there is no contradiction between the plaint and the statements of the witnesses. Further argued that as one of the plaintiffs appeared as a witness, therefore, the suit could not be dismissed against the remaining two plaintiffs and the appellate court's order is legal and well-reasoned. In support of his arguments he also placed reliance on the case of Humayun Naseer Cheema (Supra) and Syed Ghulam Abbas Shirazi v. Ghulam Hussain Sindhu (2011 MLD 1330).

6. I have given my anxious consideration to the arguments of the learned counsel for the parties and have also carefully perused the record.

7. It is admitted position that the suit for pre-emption was filed by respondents Nos. 1 to 3, who averred in the plaint that they made Talb-e-Muwathibat and Talb-e- Ishhad, however, admittedly only Muhammad Afzal respondent No.1 appeared as P.W.4 whereas the other two respondents/plaintiffs did not opt to appear. As to the effect of non-appearance of all the plaintiffs/pre-emptors, as their own witnesses to prove the Talbs mentioned in the plaint, it may be noted that there is no specific provision either in Civil Procedure Code, 1908 or Qanun-e-Shahadat Order, 1984 requiring such personal appearance but at the same time, where a fact is required to be proved through oral evidence such evidence must be direct and from the primary sources. Article 71 of the Qanun-e-Shahadat Order, 1984 provides the instances of direct oral evidence regarding proof of "fact". In this case the proof of Talbs is the "fact" which could be proved by the person who made the Talbs. This court in the case of Humayun Naseer Cheema (Supra) while dealing with the similar legal issue held that making of Talbs is a special and personal act of the pre-emptor, and if the Talb has been made by the pre-emptor himself then he should appear before the Court to record his statement otherwise the statement by any other witness shall be hit by rule of direct or hearsay evidence. In this context the August Supreme Court of Pakistan in the case of Hakim-ud-Din through L.Rs and others v. Faiz Bakhsh and others, (2007 SCMR 870) held as under:-- "It is a settled law that pleadings of the parties are not substitute of evidence and it being not substantive evidence, the averments made in the pleadings would carry no weight unless proved from the evidence in Court or admitted by the other party." In the light of the above discussion and the law laid down by the August Supreme Court of Pakistan in the cases of Hakim-ud-Din (Supra) and by this Court in Humayun Naseer Cheema's case (supra) I am constrained to hold that due to non appearance of respondents No.2 and 3/plaintiffs (Nos. 2 and 3) as witnesses to discharge the onus of "Talb-e-Muwathibat" they have withheld the best evidence available, and therefore, under Article 129(g) of the Qanun-e-Shahadat Order, 1984 , the inference should be drawn against them and the suit of pre-emption to the extent of respondents No. 2 and 3/plaintiffs (Nos. 2 and 3) is liable to be dismissed on this score alone.

8. Right of pre-emption is a feeble right, therefore, the formalities required for its enforcement must be strictly observed and there must be clear proof of Talbs, which are necessary ingredients to establish right of pre-emption. In this Context I have also gone through the oral and documentary evidence produced by the respondents/ plaintiffs. Sana Ullah while appeared as P.W.2 stated that Muhammad Afzal, Akram and Aslam went on 3-6-2001 with the respondents/plaintiffs for making Talb-e-Ishhad, however, when Muhammad Aslam, appeared as P.W.3, he did not mention any thing regarding his visit on 3-6-2001 with respondents/plaintiffs for making Talb-e-Ishhad. Similarly, in para 4 of the plaint the respondents/plaintiffs mentioned that they went to the petitioner/ defendant along with Sana Ullah, however, respondent/plaintiff (Muhammad Afzal) while appearing as P.W.4 mentioned that only Ikram Ullah and Iftikhar Ahmad had accompanied him. In plaint it is stated that respondents/plaintiffs went to the house of Mushtaq Ahmad (vendee) on 3-6-2001, however, Muhammad Aslam P.W.3 during cross-examination deposed that they went Mushtaq Ahmad's house on the same day of Talb-e-Muwathibat" i.e. 25-5-2001. Muhammad Afzal (plaintiff) who appeared as P.W.1 stated that on 3-6-2001 he went with Ikram Ullah and Iftikhar Ahmad to see Mushtaq Ahmad (vendee) but they could not meet him and in examination-in-chief he also said that this fact was informed to the lawyer, whereas this statement is contradictory to para No.4 of the plaint where it is asserted that plaintiff along with the witnesses went to the house of defendant Mushtaq Ahmad and claimed the land from him by performing "Talb-e-Ishhad" in presence of witnesses.

9. The contradictions between the plaint and oral evidence continued and in para 4 of the plaint the respondents/ plaintiffs mentioned that they first came to know about the sale on 25-5-2001 at about 8-00/9-00 a.m while sitting in Majlas-e-aam in the village. Whereas Muhammad Afzal (plaintiff) while appearing as P.W.4 stated that he came to know about the sale on 25-5-2001 while sitting on a "Dera" which is separate from village. Sana Ullah appeared as P.W.2 explained that this "Dera" belongs to Muhammad Afzal. Muhammad Aslam while appearing as P.W.3 in cross-examination also admitted that "Dera" belongs to respondent/plaintiff (Muhammad Afzal). The aforesaid statements of P.Ws. 2, 3, and 4 are in direct conflict with the averments of the plaint where it was stated that the respondents/plaintiffs were sitting in Majlas-e-aam of the village. In view of the aforesaid material contradictions between the statements of the witnesses and the pleadings regarding the requirements of Talbs it is hard to consider the statements of witnesses of the respondent/plaintiff truthful to place reliance on their testimony regarding requirement of Talbs.

10. There is another important aspect of the matter which cropped up during the cross-examination of respondent/plaintiff, Muhammad Afzal, who appeared as P.W.4, who admitted that on 25-5-2001, plaintiffs were informed telephonically by Sana Ullah regarding the sale of the property. Admittedly no Talb-e-Muwathibat was performed by the respondents at that very time. The arguments of the learned counsel for the respondents is that information on telephone is not covered under section 13 of the Act and that complete facts of sale were not given on telephone, therefore, there was no requirement to perform Talb-e-Muwathibat at that very moment. In this context, the legal question, which needs to be answered, is whether the information of sale on telephone to the pre-emptor will amount to a fact of sale under section 13(2) of the Act, require him to declare his intention to exercise the right of pre-emption in form of Talb-e-Muwathibat at that very moment. In this behalf it is expedient to reproduce the relevant provisions of section 13 of the Punjab Pre-emption Act, 1991 (Act), which is are under:-- "

13. Demand of Pre-emption.

(1) The right of pre-emption of a person shall be extinguished unless such person, makes demands of pre-emption in the following orders, namely:- (a) Talb-e-Muwathibat; (b) Talb-e-Ishhad; and (c) Talb-e-Khusumat. Explanation.

(I) Talb-e-Muwathi-bat means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption. Note.- Any words indicative of intention to exercise the right of pre-emption are sufficient. (II) Talb-e-Ishhad means demand by establishing evidence. (III) Talb-e-Khusumat means demand by filing a suit. (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-e-Muwathibat. (underline is by me to add emphasis). Bare reading of section 13(2) of the Act shows that when the "fact of sale" comes in knowledge of pre-emptor "through any source" he shall make Talb-e-Muwathibat. The words "fact of sale" and "through any source" are significant. The word "Sale" defined under section 2(d) in the Act, as under:- 2(d) "Sale" means permanent transfer of the ownership of any immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of "Hiba-bil-iwaz" or 'Hiba ba sharat-ul-iwaz' but does not include." The word "fact" is not defined in the Act however, its ordinary dictionary meaning is "some thing that actually exists, an aspect of reality" (Black's Law Dictionary). In the Collins Dictionary it means that "event or thing known to have happened or existed". Reading the ordinary meaning of word "fact" with definition of "sale" under section 2(d) of the Act, proves that the words "fact of sale" under section 13(2) of the Act means knowledge regarding the transfer of ownership of immovable property in exchange for a valuable consideration. The words "through any source" used in section 13(2) of the Act are very wide and all comprising. The word "Source" is not defined in the Act, however, the Black's Law Dictionary meaning of the word "Source" is "The originator or primary agent of an act, circumstance or result." In view of above, the words, "through any source" used in section 13(2) of the Act being all embracing term will include telephonic information as the originator of information regarding the sale. The above interpretations of words "through any source" are also in consonance with Article 164 of the Qanun-e-Shahadat Order, 1984 where modern devices or techniques are admissible in evidence. However, as per provisions of section 13(1) of the Act as interpreted by this Court and Hon'ble Supreme Court of Pakistan in numbers of cases, the information through any source must be received in presence of at least two truthful witnesses to constitute lawful Talb-e-Muwathibat under section 13(2) of the Act. The respondent/ plaintiff (Muhammad Afzal) while appearing as P.W.4 though admitted that Sana Ullah had informed him about the sale on telephone on 25-5-2001 but it is not the case of the respondents/plaintiffs in the plaint or oral evidence that telephonic information regarding sale came to his knowledge in presence of two truthful witness and they made talbs at that very moment, rather the arguments of the respondents/plaintiffs counsel were that complete facts of sale was not given on telephone, hence no talb was made. The perusal of plaint shows that this aspect of the matter was completely concealed in the plaint as well as in examination-in-chief and it is only admitted during cross-examination that telephonic information was received, which not only cast doubts on the veracity of the witnesses but also on the claim of the respondents/plaintiffs in the plaint regarding the requirement of talbs under section 13 of the Act. In this regard the reliance of the respondent counsel on the book referred is not applicable to the facts of this case.

12. I have also gone through the entire contents of the plaint and found that there is no mention of date of notice of "Talb-e-Ishhad" therein. Non-mentioning of date of "Talb-e-Ishhad" in the plaint is fatal to the suit, as already held by the august Supreme Court of Pakistan in the case of Ghafoor Khan (supra) where it is held as under:-- "It is by now well-settled that non-mentioning the place, date and time of Talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishhad, in terms of section 13 of the Pre-emption Act, is fatal towards maintainability of a suit for pre-emption. In this, we are supported by the case of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) in which it was observed that: "Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-e-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e-Muwathibat and date of issuing the notice of performance of Talb-e-Muwathibat terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." The above view has been reiterated in another judgment delivered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), wherein, it was held that "According to the dictum laid down by the larger bench of this court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending case. "This Court in another case titled as Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) has also upheld the order of dismissal of the suit, wherein the petitioner/plaintiff had though mentioned the date and place in the plaint but omitted to state the time of making the Talb-e-Muwathibat. In the circumstances, on this score alone the suit of the plaintiff was liable to be dismissed." In view of the aforesaid law laid down by the august Supreme Court of Pakistan, the suit of the respondents/ plaintiffs was not maintainable on that score also. In this context reliance is placed on the cases reported as PLD 2007 SC 302, Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630).

13. Admittedly no notice of Talb-e-Ishhad was actually served on the petitioner/defendant, which is evident from the statement of P.W.1 who also produced un served notice in original. In my view, mere sending of notice is not sufficient but it must be proved that in fact notice was served upon the petitioner defendant or that he refused to accept the service of notice as the case may be, which was sent at his correct address. In this context the reliance is placed on the law laid down by the august Supreme Court of Pakistan in the case of Bashir Ahmad v. Ghulam Ahmad (2011 SCMR 762), where it is held as under:-- "Under the circumstances, to our mind, it was imperative for the plaintiff, in order to succeed in the suit for pre-emption, to produce evidence, including the Postman, to prove that in fact notice was served upon the petitioner or that he refused to accept the notice, which was sent at his correct address. We find that the learned High Court dismissed petitioner's revision petition primarily on the ground that, "a plaintiff is not required to produce the acknowledgement due receipt as the only requirement is that of sending of notice through registered post acknowledgment due. The plaintiff is not required to establish on record that the said notice has been received by the vendee and its acknowledgment receipt was also received by the plaintiff after its service on the vendee". The said findings are not in consonance with the law on subject, inasmuch as, those were rendered contrary to the law laid down by this Court in the case of Muhammad Bashir (ibid)." In this regard reliance is also placed on the case of Muhammad Rafique v. Ghulam Murtaza 1997 MLD 2376, Razia Begum v. Abdul Aziz (2006 CLC 772) and Muhammad Bashir v. Abbas Ali Shah (2007 SCMR 1105).

14. The outcome of the above discussion is that the learned trial Court has correctly appreciated the evidence and thus it is apparent that the pre-emptor has failed to make necessary talbs, as required by law. Therefore, the impugned order of appellate Court being result of misreading and non-reading of evidence, is not sustainable.

15. In view of the foregoing discussion, this civil revision is allowed and the judgment and decree dated 18-10-2005 passed by the learned Additional District Judge Wazirabad, is set aside whereas the judgment and decree dated 11-1-2005 passed by the learned Civil Judge Wazirabad, whereby suit of the respondents/plaintiffs was dismissed, is restored with no orders as to cost. AG/M-286/L Revision accepted.