2011 MLD 582 (PLP)

ATTAULLAITI KHAN, J.

This order will dispose of two civil revisions bearing C.R. No.320 of 2005 and C.R. No.321 of 2005, filed by Amir Zaman against Habibullah and C.R. No.321 filed by Habibullah against Shah Alam as both these have arisen out of the same judgment and decree of the learned Additional District Judge-II dated 21-5-2005, whereby the judgment and decree of the trial Court was upheld.

2. Brief facts are that Habibullah Khan, respondent herein, filed a suit against the defendants for possession through pre-emption in respect of suit property detailed in the heading of the plaint. The averment in the plaint is that the suit property was sold by defendant No.8 vide Mutation No.1547 dated 16-12-1990 in favour of defendant/respondents 2 to 7 for Rs.57,000, but in order to defeat his pre-emption right, an inflated amount of Rs. 2,85,000 was entered. According to the plaintiff, he has got superior rights of pre-emption and immediately after receiving information about the sale, he made Talb-e-Muwathibat and thereafter Talb-e-ishahd. s

3. The suit was contested by defendants 1 to 7 through their written statement, which gave rise to following issues:-- (1) Whether the plaintiff has got a cause of action? (2) Whether suit is incompetent in its present form? (3) Whether plaintiff is estopped to sue by his own conduct and has waived his right if any? (4) Whether suit is correctly valued for the purposes of court-fee and jurisdiction? (5) Whether plaintiff has got a right of pre-emption? (6) Whether plaintiff made TALABS in accordance with law? (7) Whether suit is within time? (8) Whether sale price was fixed in good faith and actually paid? (9) Whether sale price is Rs.57,000 or market value? (10) Whether plaintiff is entitled to the decree for possession of suit land through pre-emption as prayed for? (11) Relief.

4. After recording evidence and hearing arguments, learned Civil Judge vide his judgment dated 13-2-2001 decreed the suit in favour of the plaintiff in respect of part of land.

5. Feeling aggrieved, the said judgment was impugned in appeal which was dismissed and the judgment/decree of the trial Court was upheld vide judgment and decree dated 21-5-2005.

6. The above judgment/decree has been assailed in both the C.Rs. mentioned above.

7. Counsel for the parties heard. File perused. My discussion is as under: It is argued by the counsel for petitioner that the plaintiff/respondent has not proved the performance of Talb-e-Muwathibat and Talb-e-Ishhad, therefore, the suit was wrongly decreed. According to him, the necessary ingredients of Talb-e-Muwathibat i.e. date, time and place have not been mentioned in the plaint as well as in the evidence. Regarding Talb-e-Ishhad, his stand is that the same is also not proved for the reason that the notice of Talb-e-Ishhad Which are mandatory to be produced. in original, have not been produced by the plaintiff and in stead, photostat were annexed which is not legal unless secondary evidence is produced. Learned counsel for respondent replied that all the Talbs have been competently performed as per verdict of the apex Court reported in 2005 SCMR

329. Regarding Talb-e-Ishah'd, his argument is that there is no need for producing the original A.D card. I will first discuss Talb-e-Muwathibat. According to requirement of section 13 of the N.-W.F.P. Pre-emption Act, 1987 all the Talbs are to be made strictly in accordance with the legal requirements. The plaintiff/pre-emptor is required to mention the date, time and place in the plaint as well as in his evidence. If anyone of these ingredients is lacking, it shall be concluded that Talb -e-Muwathibat is not legally made. I may refer to 2009 SCMR

630. The principle laid down in this connection in case "Haq Nawaz v. Muhammad Kabir" reported in 2009 SCMR 630 is reproduced below:-- "It is well-settled that the mentioning of date, place and time in the plaint regarding Talb-i-Muwathibat in a suit for pre-emption, is sine quo non because in the absence of proper date; place and time, the time provided in section 13(3) of the Punjab Pre-emption Act, 1991 for making Talb-i-Ishhad cannot be calculated correctly. The said controversy was set at rest by a Larger Bench of this Court comprising five Honourable Judges in the case of Mian Pir Muhammad (supra), whereby after considering almost all the case-law available on the subject, it was unequivocally laid down that the mentioning of date, place and time regarding Talb-i-Muwathibat, in the plaint of a suit for preemption, was mandatory." The principle laid down in case of "Mst. Saleem Akhtar v. Chaudhry Shaukat Ahmed" reported in 2009 SCMR 673, wherein it is held that:-- "Learned counsel for the respondent is right in submitting that the law declared by this Court in the case of Pir Muhammad (ibid) was followed in the latest judgments' of Muhammad Iqbal and Bashiran Begum (ibid). In view whereof, it is by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-i-Muwathibat and date of issuing the notice of Talb-I-Ishhad in terms of section 13 of the Act, otherwise plaintiff's suit deserved to be dismissed. As the appellant failed to plead qua making of Talb-i-Muwathibat in the plaint according to the parameters of law laid down by this Court in the cases of Muhammad Iqbal v. Ali Sher 2008 SCMR 1682, Bashiran Begum v. Nazar Hussain PLD SC 559 and Pir Muhammad v. Faqir PLD 2007 SC 302, therefore, her suit deserved to be dismissed on this short ground." The above case-law clearly envisages that the date, time and place must be mentioned in the plaint as well as in the evidence. If the case of plaintiff is examined on the touchstone of above principle, this Court will reach to a conclusion that the plaintiff/pre-emptor has failed to comply with the requirement necessary for the same. The plaint available on record shows that in the relevant Para i.e. Para 3, the plaintiff has not disclosed the time, , date and place for performance of Taib-i-Muwathibat. The, relevant portion of Para 3 of the plaint is reproduced as under:- The above portion of plaint discloses no date, time and place. The plaintiff has recorded his statement in the trial Court as P.W.6. Not only this, but the plaintiff has also omitted some ingredient in his statement before the Court. In his 'evidence, he has deposed that on 10-1-1991, he was present in his house when he was informed about the sale of the dispute property and he immediately declared his intention to made Talb-e-Muwathibat. Here again, he has failed to mention the time. Similar is the statement of Rehmatullah who appeared as P.W.9. He has also failed to disclose the time of Talb-e-Muwathibat. This witness was the person in whose presence plaintiff made Talb-i-Muwathibat. So in my opinion, the plaintiff/pre-emptor has miserably failed to establish that he has made Talb-e-Muwathibat. ' Coming to Talb-i-Ishhad. Reference may be given to the pleadings of the parties. In Para 3, the plaintiff/pre-emptor has alleged that he sent notice through post office duly .registered along with Ad) cards. Defendants have denied receipt of any notice in written. statement. So the burden has shifted to the plaintiff to prove. In this connection, the contention of learned counsel for the petitioner is that the notices produced by the plaintiff Exh. P.W.6/1 to Exh. P.W.6/7 are photostat copies which are inadmissible in evidence. On the other hand, learned counsel for the respondent, Mr. Rustam Khan Kundi, stated that there is no need to produce original notice and the photocopy is enough for the purpose of proving notice Talb-i-Ishhad. He relied upon 2008 SCMR 1444. I have perused this judgment delivered by the Apex Court in "Hamidullah Khan and others v. Mst. Zeenat Khatoon". The relevant portion is reproduced below: "We have heard learned counsel for the petitioners and have also gone through the impugned judgment as well as the case-law being relied upon by the learned counsel. It is to be noted that as far as P.W. Zeenat Khatoon is concerned, she has tendered copy of notice which was in her possession, after sending the original to the petitioners, therefore, in our opinion, the Court was legally right to accept its Photostat copy and on this score, no point is made out for grant of leave to appeal. The judgment being relied upon by the learned counsel is distinguishable, in view of the facts and circumstances of instant case." Through the above judgment, the apex Court has resolved the issue once for all. Even Photostat copies of notice of Talb-i-Ishhad is sufficient to prove that Talb-i-Ishhad is performed. Resultantly, I hold that Talb-i-Ishhad has properly been performed by the plaintiff. The result of my above discussion is that the pre-emptor has miserably failed to perform Talb-i-Muwathibat which is condition precedent for pre-emption suit, therefore, his suit is liable to be dismissed. Both the learned lower Courts have fallen into error by decreeing the same. In fact, they have not property appreciated the evidence and law on the point. The net result of above discussion is that the suit of the plaintiff/pre-emptor concerned is dismissed and resultantly both the judgments and decrees of the lower fora are set aside C.R. No.320 of 2005 is accordingly accepted, while C.R. No.321 of 2005 is dismissed. Parties to bear their own costs. S:A.K./12/P Order accordingly.