2012 PLP 235 (SCMR)

NASIR-UL-MULK, J.

Two suits were filed for possession, through preemption, one by Siffat Khan and the other by the present appellant, of land measuring 11 kanals, 1 marla sold to the respondent, Gulbat Khan through Mutation No.1886 attested on 30-9-1998. The Trial Court consolidated the two suits. After recording of evidence, the Court dismissed both the suits on 25-7-2002, holding that neither of the plaintiffs had superior right of pre-emption and that both had failed to prove the making of talbs in accordance with the provisions of section 13 of N.-W.F.P. Preemption Act, 1987. Siffat Khan did not take the matter further, whereas, the appellant filed appeal against the judgment and decree of the trial Court. The appellate Court dismissed the appeal maintaining the findings of the trial Court on the issue of Talbs only. In its revisional jurisdiction, the High Court maintained the concurrent findings by holding that the appellant had failed to make Talb-e-Muwasibat immediately upon receiving information of the sale but had waited for verification of the sale mutation. The High Court relied upon its own judgment in "Muhammad Subhan and others v. Mir Qadam Khan and others (2001 MLD (Peshawar) 1716)", in refuting the argument advanced on behalf of the appellant that the occasion to make Talb-e-Muwasibat had not arrived until the sale was completed upon payment of the sale consideration, which, according to the appellant, was made at the time of attestation of mutation. Leave to appeal was granted to the petitioner on 2-3-2010 in the following terms:-- "The petitioner pre-emptor was non-suited by the Courts on the ground that he made Talb-e-Muwathibat after the sale mutation, whereas he had become aware of the sale much earlier. Mr. Attique Shah, Advocate Supreme Court, appearing for the petitioner took us to the evidence and referred to the statement of the petitioner wherein he had stated that he had gone to inquire from Patwari as to whether the sale mutation had been attested and he came to know that it had not been attested as yet. That the Patwari never informed him of the attestation That it was after attestation of the mutation that he made Talb-e Muwathibat. The learned counsel referred to the statement of the respondent vendee, Gulbat Khan, who admitted that the sale consideration was paid to the vendor on the date of attestation of the mutation. It was thus argued that in view of the definition of sale in section 2(d) of the N.-W.F.P. Pre-emption Act, 1987, the sale was not completed until sale consideration was paid, which admittedly was on the date of mutation.

2. In view of the submission made by the learned counsel leave to appeal is granted to examine whether the courts have not erred in non-suiting the petitioner for not making Talb-e-Muwasibat before the completion of the sale."

2. The facts as stated in the leave granting order are not disputed. The moot point in the case is, whether, the pre-emptor was obliged to make Talb-e-Muwasibat upon learning of the sale of the land even though the sale had, in fact, not been completed. The arguments advanced at the bar turns upon the construction to be placed upon the expression "Sale" used in sections 2(d) and 13(1) of the N.-W.F.P. Pre-emption Act, 1987. The former provision defines "Sale" as "permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of hiba-bil-iwaz or hiba-ba-shart-al-iwaz.......". The relevant portion of section 13(1) reads:-- "

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 order, namely:- (a) Talb-i-Muwathibat; (b) Talb-i-Ishhad; and (c) Talb-i-Khusumat Explanation.

(i) "Talb-i-Muwathibat" 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. Explanation.

(ii) ........................................ Explanation.

(iii) ........................................ (2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i- Muwathibat."

3. Mr. Abdul Aziz Kundi, Advocate Supreme Court, appearing for the appellant submitted that it has been established that the sale consideration was paid at the time of attestation of the sale mutation and in view of the definition of "Sale" in section 2(d) the transaction was not completed until the payment of the price. That according to the rule of construction of statutory provisions an expression appearing in different parts of the same statute must be accorded the same meaning; that the word "Sale" used in section 13(1) of the Pre-emption Act requiring the pre-emptor to make Talb-e-Muwasibat upon gaining knowledge of the sale must be given the same meaning as in section 2(d), which defines the term. In support of his submissions, the learned counsel relied upon "Muhammad Inayat v. Fateh Muhammad (PLD 2004 SC 778) and Muhammad Inayat v. Mst. Nisar Fatima (1994 SC 120)".

4. Mr. Muhammad Zahoor Qureshi, Advocate Supreme Court, representing the respondents, has pointed out that there are concurrent findings of facts by the three Courts which are not to be readily upset. He contended that the appellant/preemptor had to make Talb-e-Muwasibat immediately upon acquiring knowledge of the sale and not wait until verifying the credibility of the information. In support of his contentions, the learned counsel referred to the principles laid down in "Zafar Ali v. Zainul Abidin (1992 SCMR 1886), Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), Kanwal Nain v. Fateh Khan (PLD 1983 SC 53) and Safia Begum v. Ibrahim (PLD 1989 SC 314)".

5. As has already stated, the appellant/preemptor did not make Talb-e-Muwasibat upon acquiring knowledge of the sale but proceeded to verify from the Patwari regarding attestation of the sale mutation. He made Talbs when the mutation was attested. It is settled that completion of sale of immovable property is not dependant upon attestation of its mutation. The sale may have been completed earlier and attestation of its mutation would merely be its manifestation. In the case of "Muhammad Subhan and others v. Mir Qadam Khan and others" (ibid) on which reliance was placed by the High Court in the impugned judgment, the controversy was whether the pre-emptor could validly make Talab-e Muwasibat upon attestation of mutation though learning of the sale much earlier. It was held that the sale was complete before attestation and failure to make the demand immediately upon learning of the sale was fatal to the preemptor's suit.

6. The question before us is somewhat different. The sale consideration, according to the defendant, was paid to the vendee at the time of attestation of the sale mutation. According to its definition given in section 2(d) of the Pre-emption Act, "Sale" is a permanent transfer of immovable property in exchange for valuable consideration or gift. The sale of the property was, thus, completed at the time of attestation of mutation when the sale price was paid. The argument on behalf of the appellant will have weight if we would to assign to the word "sale" in section 13, the same meaning as its definition in section 2(d). True, that ordinarily the same meaning is to be attached to an expression used in different parts of the same statute. The Rule, however, is not strict and admits of departure, depending upon the context in which the expression appears in different provisions of the statute. The same word may be used in different senses in different parts of the same enactment. Reference may be made to Craies on Statute Law, seventh Edition, where, in Chapter 9, on Interpretation of Words, at page 168, under sub title, Use of same words in different senses in the same Act, citing from English case-law, it is stated "It is sound rule of construction to give the same meaning to the same words occurring in different parts of an Act of Parliament. The presumption that the same words are used in the same meaning is however very slight and it is proper, if sufficient reason can be assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act." Similar comments are made in Maxwell on The Interpretation of Statutes in the Chapter of Subordinate Principles under the title "Change of Language" and sub title "Identical expressions", That it is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an act. This presumption as to identical meaning is, however, not of much weight. The same word may be used in different senses in the same statute and even in the same section. This principle is recognized in our own jurisprudence and in the case of "Muhammad Rashid v. The State {PLD 1960 SC(Pak.) 168}" it was held that a term occurring more than once in a statute is given the same meaning throughout unless special definition or requirement of context leads to contrary conclusion. Citing a long list of case law from the Indian Jurisdiction, the High Court of Dacca in "Muhammad Abdul Haque v. Fazlal Quader Chowdhury (PLD 1963 Dacca 669)", while interpreting some constitutional provisions, observed that the same word may have different meaning in different context.

7. For the purpose of exercise of the right of pre-emption, sale must be complete in all respect in accordance with its definition given in section 2(d) of the Act, namely, permanent transfer of the property and payment of valuable consideration. The right, therefore, cannot be exercised until the two conditions exist. The said definition of "Sale" becomes relevant when controversy arises as to whether or not the property in question was sold, conferring right of preemption on the pre-emptor/plaintiff. The fulfilment or otherwise of the two conditions mentioned in section 2(d) of the Act, however, may not be relevant in the context in which the word "Sale" in subsection (3) of section 13 of the Act has been used. The latter provision mandates the pre-emptor to make immediate demand in the same sitting or meeting in which he acquires knowledge of the sale. This stringent provision does not allow the preemptor to postpone the making of Talb-e-Muwasibat in order to make further inquiry or probe as to whether or not the sale was complete in all respects. The Talb is to be made regardless of the credibility of the information. The pre-emptor may never be able to find out about the completion of the sale until the commencement of the proceedings in the suit for pre-emption or, at times, upon its conclusion when the Court finally determines the question, if the same was in issue. This possibility is aptly demonstrated by the facts of the present case when it was disclosed for the first time during the recording of evidence of the vendee/defendant that the sale consideration was paid by the vendee at the time of attestation of mutation. A pre-emptor may never know when, if at all, sale consideration was paid to the vendor. If the word "Sale" in section 13 is given the same meaning as its definition in section 2(d) it would negate the very essence of the mandatory nature of the former provision requiring the pre-emptor to make immediate Talb-e- Muwasibat upon learning of the sale. The expression 'Sale' in the two statutory provisions is used in entirely different context. The definition of sale in section 2(d) cannot be applied to the same expression used in section 13 of the Act and the pre-emptor is obliged to make the talb regardless of whether the conditions laid down for completion of sale have been fulfilled. As the appellant had delayed the making of talb till attestation of the sale mutation, his suit was rightly dismissed.

8. In view of the above, since the appellant had failed to make Talb-e-Muwasibat upon learning of the sale, he had failed to fulfil the requirement of subsections (1) and (2) of section 13 of the N.-W.F.P. Pre-emption Act, 1987. The appeal is, therefore, dismissed with no order as to costs. M.H./M-96/SC Appeal dismissed.