1998 PLP 879 (CLC)

5. After recording the evidence of the parties and at the conclusion of the trial, the suit of the petitioner was dismissed for the findings on Issue No.5. As regards Issues Nos.7 and 8 regarding market value and fixation of sale consideration in the mutation, it was held that the suit land was sold to the respondents for the sale consideration mentioned in the disputed sale mutation. Due to findings on Issue No.5, the petitioner was held not entitled for the decree of possession through pre‑emption, and she was held having no cause of action due to her failure to prove the required demands. Consequently Issues Nos. l and 10 were decided against the petitioner. Issue No.8 regarding market value was decided against the petitioner. All other issues were decided in favour of plaintiff/petitioner.

6. The crux of the judgments of the Trial Court and District Judge is the failure of the petitioner to establish "Talab‑i‑Muwathibat" as required under the law.

7. The learned counsel for the petitioner contended that the decree and judgments of both the lower Courts based on erroneous findings on Issue No.5 suffer from misreading and non‑reading of evidence, the petitioner has successfully established through evidence that Talb‑e‑Muwathibat was made at the same and in the same meeting where the 'petitioner/pre‑emptor got knowledge of the sale transaction. The suit of petitioner has illegally been dismissed by both the lower Courts due to non‑compliance of "Talab‑i Muwathibat" which has wrongly been held by the Trial Court as well as by the Appellate Court. The petitioner has produced 6 P.Ws. in all including those in whose presence she made "Talab‑e‑Muwathibat" and "Talab‑i‑Ishhaad". Both the lower Courts have wrongly taken into consideration the minor discrepancy regarding date of "Talab‑i‑Muwathibat" appearing in the statement of P.W.6. The petitioner herself and P.W.5 Samidullah Khan P.W.5 have deposed in unequivocal terms that the intention to exercise her right of pre‑emption was disclosed by petitioner/pre‑emptor at the very moment when knowledge of sale transaction was conveyed to her on 16‑8‑1994. P.W.6, a tenant of the petitioner's husband and an illiterate person, has mentioned the date as 18‑8‑1994 when the petitioner announced her intention to pre‑empt the suit land. The statements of P.Ws.4, 5 and 6 in juxtaposition established that fact that the petitioner disclosed her intention there and then when she was informed of the sale transaction. The legal requirement of "Talab‑i‑Muwathibat" is that a declaration of intention shall be made by the pre‑emptor in the sitting or meeting (Majlis) in which he/she comes to know about the sale transaction. Further contended that both the lower Courts have wrongly held that due to non‑mention of time, date, place and sitting or meeting (Majlis) wherein she got the knowledge in the plaint could not be allowed to establish subsequently through evidence. It was argued that though a plaint shall contain material facts, but evidence should not be disclosed in the plaint. In this regard the earlier view of judicial pronouncement has been overruled in the judgment of Supreme Court of Pakistan, delivered in Civil Petition for Special Leave to Appeal No.327‑P of 1996: PLD 1997 SC 883 (Amir Jan and 3 others v. Haji Ghulam Muhammad) decided on 2‑7‑1997 wherein the following law has been laid down by the open Court:‑‑‑ "In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having come to know of the sale the pre‑emptor declared his intention to pre‑empt the sale. This material fact has to be proved at the trial through evidence on the issue framed in this regard."

8. The learned counsel for the respondents/vendees vehemently contended that the petitioner has miserably failed to prove the requirement "Talab‑i‑Muwathibat" and "Talab‑i‑Ishhad" and the evidence produced by the petitioner is self‑contradictory. He also referred to Exh. P.W.‑2/1, whereby the disputed Mutation No.185 and Exchange Mutation No.196 (whereby than petitioner has exchanged certain property) were attested on the same date i.e., 12‑7‑1994 and the petitioner was in the knowledge of sale transaction even on the date o1 attestation of mutation. Since the fulfilment of "Talabs" is the prerequisite condition for the exercise of superior right of pre‑emption, the petitioner (pre emptor) is required to mention the date, time, place and Majlis wherein the petitioner gets knowledge about sale transaction, in the plaint and without mentioning the same in the body of the plaint, the "Talb‑i‑Muwathibat" cannot be proved subsequently as observed in Abdul Qayyum Khan v. Musa Khan (1995 CLC 729). Due to non‑mentioning of the said material facts in the plaint and subsequent contradictory statements of the petitioner's party; both the lower Courts have rightly dismissed the suit on these points which are not open to interference by this Court on this score.

9. The only point argued before me is that whether the plaintiff has made "Talabs" particularly "Talab‑e‑Muwathibat", in accordance with law? The Trial Court has struck Issue No.5 on this controversy. Both the lower Courts have decided this issue against petitioner/pre‑emptor and the learned counsel for the petitioner has contended that the decrees and judgments of both the lower Courts vis‑a‑vis‑ Issue No.5 is based on misreading of the evidence. In these circumstances the reappraisal of evidence is required to meet the ends of justice.

10. This is an undisputed fact that the suit land measuring 2 Kanals is a part of Khata No.1787, Khasra Nos. 14993, 15141, 15139 and 14992, total measuring 12 Kanals, 16 Marlas situated in Mauzah Muhammad Khel Wazir, Tehsil and District Bannu, originally owned by one Rambail, was verbally sold to Attaullah Khan and subsequently vide Mutation No.185 attested on 12‑7‑1994 was sold to respondents. The petitioner/plaintiff's case 'as disclosed in her plain that she had got superior right of pre‑emption on the basis of co‑ownership, owner of the contiguous property and participator in immunities. Her status as owner of the contiguous property has been admitted by Afsar Zaman, respondent No. l who appeared as D. W.1 in the trial Court. As regards the controversial issue; it was alleged in the following terms as appeared in para. 3 of the plaint:‑‑‑ The aforesaid averment was replied through written statement in the following words:‑‑‑ .

11. The receipt so annexed indicates that Attaullah Khan has allegedly received Rs.88,000 as sale consideration for the disputed land. Though the receipt bears a date i.e., 15‑3‑1992 signed by Samiullah Khan and Sherin Khan as marginal witnesses apart from Attaullah Khan, but being an unattested receipt could be manipulated predated to defeat the suit of petitioner.

12. As far as the alleged arbitration in the written statement, the plaintiff has denied any such arbitration in her statement. Respondent No. l who appeared as D.W.1 in the case has deposed in the following terms regarding the arbitration:‑‑‑ "The arbitration was effected between Attaullah Khan and husband of the plaintiff. It was decided that the property was then given to Attaullah. Attaullah had sold the suit property earlier td this arbitration but no writing was made in this connection. Thereafter, suit property was transferred in my name alongwith three other brothers. " Attaullah Khan in his statement as D.W.2 stated that when he purchased the suit property, Haji Haqnawaz Khan, the husband of the plaintiff/petitioner raised an objection that as per his previous commitment, he (Attaullah Khan) will not transfer the suit land to any other person including respondents, but will transfer the same to him (Haji Haqnawaz Khan). Upon this a dispute cropped up between them leading to an arbitration which was concluded on holding Attaullah Khan to take special Oath that no such commitment was made to Haji Haqnawaz. After the said arbitration he transferred the suit land to respondents, certainly through Mutation No. 185 attested on 12‑7‑1994. All the DWs. have categorically stated that the said arbitration was between Attaullah Khan and the husband of the plaintiff/petitioner and not the plaintiff herself, and that too before the execution of disputed sale‑deed. As regards the disputed mutation, no arbitration between the parties was proved at the trial.

13. With regard to fulfilment of demands, the plaintiff/petitioner in support of her averments in the plaint while appearing as PWA stated as follows:‑‑‑ "On 16‑8‑1994 in the morning after having breakfast, my husband has called me from Hujra then, I alongwith my son Samiullah came out of our house and came to Hujra. In Hujra one Abdur Rahim my tenant, my husband and my son were present. My husband told me that the suit land had been sold, I announced my intention to pre‑empt the suit land in the presence of said persons." This assertion of the plaintiff in support of her averments made in the plaint could not be shattered in the cross‑examination. The statement of petitioner/plaintiff was supported by Samiullah Khan in whose presence she made Talab‑e‑Muwathibat. He appeared as P.W.5 and deposed as follows:‑‑‑ "On 16‑8‑1995 my mother announced her intention to bring a pre emption suit against the suit land. We were sitting inside of our house when my father called my mother from Baithak (Hujra), I alongwith my mother came out my house to Hujra, where my father and Abdur Raheem/our tenant were present. My father told that sons of Akhtar Zaman had purchased two (2) Kanats land, my mother announced her pre‑emption by saying that I have right of pre‑emption and then we all went to the suit land. " In order to further corroborate the factum of ' Talb‑e‑Muwathibat", Abdur Rahim, the person who conveyed the information of the sale to the husband of plaintiff/petitioner, appeared as P.W.6 who has stated in the following words:‑‑‑ "I informed the husband of the plaintiff in respect of sale of suit property, he called his wife from his house, it was Tuesday however, I cannot say about the date. When plaintiff and her sons came out of her house on call of her husband, thereafter, we went to suit property. Plaintiff came back to her house, while, I, Haqnawaz/husband of the plaintiff, son of plaintiff/Samiullah and one another person went to the house of vendees/defendants. Our Jirga was refused and vendees were not ready to transfer the suit property in favour of plaintiff. On Thursday or Wednesday we came to District Courts where notice was scribed and same was thumb‑impressed by me." The Calendar of the concerned year shows that it was 16‑8‑1994 on "Tuesday" and 18‑8‑1994 on "Thursday". The witness is undoubtedly an illiterate person who has thumb‑impressed the notices of Talab‑i‑Ishhaad", has given the date as 18‑8‑1994 when the plaintiff announced her intention to pre‑empt the suit property. But in the same breath he has shown his inability to cite the date when he visited the house of the petitioner and supplied the information of the sale. This contradiction was taken into consideration by the Trial Court as well as the Appellate Court.

14. From perusal of statements of the parties with regard to the controversial issues of Talb‑i‑Muwathibat, there is no ambiguity in holding that the petitioner/pre‑emptor was informed through her tenant Abdur Raheem in her house and she made "Talb‑i‑Muwathibat there and then in the presence of her husband, son and tenant. The meeting of Abdur Rahim, her husband and son of the petitioner with the plaintiff/petitioner is the occasion where the plaintiff got the knowledge/information about the sale and she raised demand there and then. No convincing evidence in rebuttal was adduced by the respondents/vendees.

15. The learned counsel for the respondents has also argued that on the same day when the disputed mutation was attested an another mutation bearing No..196 was also attested whereby the plaintiff exchanged certain property. By mere entry of two mutations on the same day, but at different time, would not ipso facto establish the knowledge of attestation of one mutation about the other unless it is specifically proved that the attestator of mutation was also present at the time of attestation of other mutation on the same day. The respondents/defendants have not brought any iota of evidence to prove that the plaintiff was present at the time of attestation of disputed Mutation No.

185. The difference in numbers of both the mutations indicates that though both the mutations were attested on the same day but not at the same time. At least, there were nine mutations attested in‑between the time of attestation of the two aforesaid mutations. In these circumstances, the contention of the learned counsel for the respondents that due to presence of the petitioner at the time of attestation of Mutation No. 196, the petitioner must be knowing of the disputed Mutation No. 185 from the very day of its attestation, is without any force.

16. The contention of learned counsel for the respondents that by not citing the place, time and date of the Majlis where the plaintiff/pre‑emptor got knowledge of sale, in her plaint, is a fatal for the dismissal of the suit as held by this Court in 1995 CLC 729, has successfully been met by the learned counsel for the petitioner/plaintiff who produced a copy of judgment in Civil Petition for Special Leave to Appeal No.327‑P of 1996 wherein the law has been laid down in the following terms:‑‑‑ "No doubt Order VI, Rule 2, C.P.C. provides that material facts are to be stated in the pleadings but it does not mean that evidence through which such material fact is to be proved shall be stated in the pleadings. In our view it would be sufficient requirement off law if it is alleged in the pleadings that after having come to know of the sale the pre‑emptor declared his intention to pre‑empt the sale. This material fact has to be proved at the trial through evidence on the issue framed in this regard. The evidence to be led need not be alleged in the plaint."

17. In the light of the law laid down by the Supreme Court of Pakistan, the petitioner/plaintiff has stated material facts regarding her getting knowledge and her declaration of intention to pre‑empt in her plaint and during the course of evidence, she has led sufficient evidence in this regard and the defendants/vendees have failed to rebut the deposition of witnesses in this regard.

18. For the facts noted above, the petitioner/plaintiff has succeeded to prove requirement of ' Talabs' in accordance with law. The plaintiff/petitioner has been held a contiguous owner while respondents/vendees as strangers to the suit land by the Trial Court while deciding Issue No.9 which findings were not assailed before the District Judge, all other material issues were also decided in favour of the petitioner/plaintiff but she was held disentitled to the decree prayed for due to findings on Issue No.

5. The findings of both the lower Courts on Issue No. 5 are the result of misreading of evidence which are, therefore, set aside and Issue No.5 is answered in affirmative.

19. Consequently, by accepting this revision petition the decrees and judgments of both the lower Courts are set aside and suit of the plaintiff/petitioner for possession through pre‑emption of the disputed land as described in the heading of the plaint is decreed on payment of Rs.88,000 as sale consideration to the respondents. The parties shall bear their own costs. A.A./2/P Revision accepted.