2006 PLP 1637 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioners seek leave to appeal against the order dated 2-12-2004 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby Civil Revision No. 1461 of 2003 filed by them was dismissed.

2. Briefly, stated, facts giving rise to the filing of instant petition are that petitioners purchased 455 Kanals of agricultural land in village Cheenapura, Tehsil Issakhel, District Mianwali for a consideration of Rs.10,00,000 (Rupees ten lacs) vide Mutation No.28, dated 28-3-1995. Respondent filed suit for pre-emption which was dismissed on 15-12-2000 by learned trial Court.

3. Feeling aggrieved, respondent preferred appeal which was allowed by the learned Additional District Judge, Mianwali, on 3-7-2003. The said judgment was assailed by petitioners before the learned High Court in the above mentioned civil revision which was dismissed vide impugned judgment.

4. We have heard Mr. Saeed Akhtar, learned counsel for the petitioners at length and have gone through the record and the proceedings of the case in minute particulars.

5. Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the evidence brought on record in its true perspective which resulted in miscarriage of justice. According to him, the prerequisite conditions of Talb-i-Muwathibat as prescribed by law were not fulfilled in this case. Even the names of two truthful witnesses in whose presence she made declaration to pre-emption have not been mentioned. He vehemently urged that the requirement of Talb-i-Muwathibat cannot be fulfilled unless the details, particulars, date, time and place are specifically indicated in the plaint and the names of persons in whose presence such Talb was made. He went on to argue that witnesses, namely, (P.W.3) Muhammad Zafar Ullah Khan and (P.W.4) Saeed Ullah even did not disclose in their respective statements in evidence the time and the date of sale. Even notice of Talb-i-Ishhad did to bear the time and date of re-confirmation of Talb-i-Muwathibat while making Talb-i-Ishhad. Lastly, the learned counsel contended that the judgment of First Appellate Court is based on misreading and non-appraisal of evidence, as such, the same may be set aside.

6. On the other hand, according to the learned counsel for the respondents the impugned judgment does not suffer from any legal flaw and contended that all the three P.Ws. examined are unanimous about the date, time and place of gaining of knowledge by the respondent regarding sale and has unambiguously deposed that the respondent instantly expressed her intention of pre-empting the sale. He further contended that the respondent has proved notice of Talb-i-Ishhad by producing its marginal witnesses, namely, (P.W.3) Zafar Ullah Khan and (P. W .4) Saeed Ullah who without any contradiction 'supported the case of respondent on making of Talbs. He further contended that even service of notice on petitioners is established through the testimony of independent witness, namely, P.WA Noor Muhammad, Postman who also produced postal receipts Exh.P.1 to Exh.P.17. He contended that respondent sent the notices to the petitioners under registered envelope according to their addressee as mentioned in the impugned mutation. Postal receipts are enough to substantiate the issuance of the notice under section 13 of the Punjab Pre-emption Act, 1991. He strenuously argued that whosoever comes forward to testify shall be presumed to be truthful unless otherwise proved as it has been held by this Court in the case of Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR

958. According to him, the manner of making Talb-i-Muwathibat and sending the notice of Talb-i-Ishhad have been elaborately discussed by a larger Bench of this Court in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and the case of respondents is at par with that case as such it being a decision of larger Bench is binding on the decision of smaller Bench of this Court.

7. According to the plaint on coming to know about the sale on 22-6-1995, respondent immediately disclosed her intention to pre-empt the suit-land in the Mailis of village in presence of (P.W.3) Muhammad Zafar Ullah Khan and (P.W.4) Saeed Ullah. According to the averments, the sale was kept secret and came to the notice of respondent after about two months and 24 days, i.e. 22-6-1995 which fact is established and not rebutted. The factum of sending of notice of Talb-i-Ishhad on the same day i.e. 22-6-1995 after getting it attested by two truthful witnesses, namely, (P.W.3) Muhammad Zafar Ullah Khan and (P.W.4) Saeed Ullah also stood established on the record. As regards the right of pre-emption, it has been categorically stated by P.Ws. namely, (P.W.3) Muhammad Zafar Ullah Khan and (P.W.4) Saeed Ullah that respondent had the superior right on the basis of contiguity, common boundary line, common right of passage and common right of irrigation. Above all, there is no exception to the findings of learned Additional District Judge and that of learned High Court on both Talbs, which according to them, were made well in accordance with law. Learned counsel for petitioners though argued at length yet could not refer to any illegality, misreading or non-appraisal of evidence. It is well-settled principle enunciated by this Court that the judgment of large Bench is binding on the judgment of 113 smaller Bench. Examining the case of respondent on the touchstone of the case of Haji Noor Muhammad (supra), it is found to be exactly the same on all four corners. Thus, it being the decision of larger Bench is binding on the smaller Bench. In this context, we are fortified by the case of Chaudhry Muhammad Saleem v. Fazal Ahmad and others 1997 SCMR 315 wherein it has been held that the judgment rendered by the Full Bench of this Court comprising five Judges would be binding upon the Bench comprising of three Judges. In the case of Haji Noor Muhammad (supra) it has also been held that the plaintiff could not be non-suited merely on the ground that other details of time and place of the Talbs and names of witnesses etc. had not been specifically mentioned in the plaint. In the case of Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580, this Court has held that minor discrepancy of time would not come in the way of pre-emptor. This Court also held in the case of Abdul Malik v. Muhammad Latif 1999 SCMR 717 that the service of registered notice by pre-emptor containing the names of the two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of section 13(3) of the Act and pre-emptor could not be non-suited on the ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice.

8. For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record or misconstruction of facts or law.

9. Resultantly, the petition being devoid of force is dismissed and leave to appeal refused. M.H./A-53/SC Petition dismissed.