2012 PLP 905 (YLR)

IJAZ AHMAD, J.

The respondents/ plaintiffs instituted a suit for possession/ pre-emption on the basis of being Shafi-i-Sharik and Shafi-i-Jar. It was averred in the plaint that the moment they came to know about the disputed sale, they made Talb-e-Muwathibat. The suit was resisted by the petitioner/defendant. In the written statement, it was averred that the respondents/plaintiffs did not have a superior right to purchase the land and that the talbs were not made in accordance with law. Besides the others, issue No.1 was regarding the superior right of purchase and issue No.2 was regarding the making of talbs in accordance with law. The respondent Ahmed Bukhsh appeared as P.W.1 and stated that he along with Allah Dewaya P.W.3 was sitting in his own house. Ameer Bukhsh P.W.2, informed him about the sale. He promptly made Talb-e-Muwathibat. Notice of Talb-e-Ishhad was produced as Exh.P-1 and the postal receipt of sending of the notice was produced as Exh.P-2. Respondents/ plaintiffs produced copy of Register Haqdaran-e-Zamin as Exh.P-3, and Khasra Girdavri as Exh.P-4. The petitioner/ defendant appearing as DW-1 stated that the respondents/plaintiffs did not have the preferential right of purchase. The learned Civil Judge 1st Class, Jampur dismissed the suit vide judgment and decree dated 28-3-1996 holding that the respondents/ plaintiffs neither had the preferential right to purchase the suit-land nor had made the Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law. The appeal preferred by the respondents/plaintiffs was accepted and resulted in the decree dated 22-3-1997 passed by the learned Additional District Judge, Jampur decreeing his suit.

2. It is contended by the learned counsel for the petitioner/defendant that in their plaint the respondents/plaintiffs made a bald statement that the moment they had the information, they made Talb-e-Muwathibat. They did not make mention of time, date and place of receipt of information and making of Talb-e-Muwathibat. Relying on "PLD 2007 SC 302" titled Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others, "2004 SCMR 404" titled Sardar Muhammad Nawaz v. Mst.Firdous Begum, it is argued that it would be mandatory to mention in the plaint, the date, place and time of performance of Talb-e-Muwathibat. The learned counsel refers "2008 SCMR 1682" titled Muhammad Iqbal v. Ali Sher, to argue that when the said particulars are not mentioned in the plaint, the Court shall not allow the plaintiff to lead evidence on the said facts. He further argues that the Talb-e-Ishhad has to be proved by proving the service of the notice on the addressee by producing the acknowledgment due, the receipt sending of a notice does not prove the making of Talb-e-Ishhad. Relies on "2007 SCMR 1105" titled Muhammad Bashir and others v. Abbas Ali Shah. He also submits that mention of the length of time without specifying the point of time when information was received and Talbs were made would not be a sufficient proof for making of Talbs. Relies on "PLD 2006 Supreme Court 309" titled Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin

3. On the other hand, it is argued by the learned counsel for the respondents/ plaintiffs that the omission to make mention of the time and place of making of talbs and the name of witnesses would not non-suit a plaintiff. Relies on "2005 SCMR 1201" titled Azmatullah through L.Rs. v. Mst.Hameeda Bibi and others.

4. I have heard the learned counsel for the parties and also gone through the record.

5. The respondents/plaintiffs did not mention the time, place and date of receipt of information about the sale and of making of Talb-e-Muwathibat in the plaint. They cannot be allowed to improve their case by mentioning of these factors in the evidence. The judgment relied upon by the learned counsel for the respondents, is earlier in time, whereas those referred by the learned counsel for the petitioner are later in time and thus, hold the field. Even in their statement made by the plaintiff Ahmed Bukhsh as P.W.1 and his witnesses, there is a bald statement that four months and some days earlier he had the information of sale and made the Talb-e-Muwathibat. This cannot be taken to be the making of talbs in accordance with law as envisaged in section 13 of the Punjab Pre-emption Act, 1991. The respondents/plaintiffs have been unable to prove the making of the talbs in accordance with law. They are not entitled to the decree. In order to augment my views I rely on 2009 SCMR 673" titled Mst.Saleem Akhtar v. Chaudhry Shauk Ahmed, 2010 SCMR 1796 "titled Jamshed Khan v. Muhammad Saeed others, and "2008 SCMR 1682 "titled Muhammad Iqbal v. Ali Sher. In this view of the matter, I would not like to discuss issue No.1 regarding the preferential right of the respondents/plaintiffs to purchase the suit-land. The decree dated 22-3-1997 passed by the learned Additional District Judge, is set aside. The decree passed by the learned trial Court is restored. This civil revision is accepted. K.M.Z./G-6/L Petition accepted.