1998CLC1017 (PLP)

Jamshaid Ali Sayed for Respondent. Dates of hearing: 19th and 23rd December, 1997 To pre‑empt sale of land, effected through Mutation No.590 , dated 19‑1‑1991, in regard to land situated at Chak No.257/G.B, Tehsil and District Toba Tek Singh, Mst. Bashiran Bibi, respondent herein, filed a suit for pre emption, on the ground of being co,‑sharer in the Khata, which suit was decreed by the learned Civit Judge Toba Tek Singh, on 29‑11‑1995 while the appeal there against was dismissed by the learned District Judge, Toba Tek Singh on 29‑4‑1997 and in consequence, this second appeal has been filed to assail the judgments of the two Courts below.

2. Learned counsel for the appellant, argued that though the mutation was attested on 19‑1‑1991 yet the respondent had knowledge of sale, on 13‑1‑1991, when the bargain was struck and possession was delivered. He submitted, that the possession was with the tenant of respondent and her husband from whom the same was delivered to the appellant, under the instructions of the husband of the respondent. It was contended, that the respondent claims Talb‑e‑Muwahibat on 8‑2‑1991 which will not be a due compliance of requirement of law inasmuch as, the respondent was required to make demand, at the spur of the moment, on acquiring knowledge of sate. It was argued, that the property had been mutually partitioned and that the appellant was occupying his separate share and since the Khata stands divided, therefore, the respondent cannot plead superior right on the ground of being co‑sharer in the Khata. Reliance was placed on PLD 1967 Peshawar

284. It was also argued that the notice of Talb‑e‑Ishahad was not issued within the statutory period and that the notice of 'Talb‑e‑Ishahad was not sent to the appellant nor served upon him, and therefore, the second Talb would not be deemed to have been made in accordance with law. Lastly it was argued, that the respondent did not appear as a witness and, therefore, the learned Courts below fell in error in assuming that the requisite Talbs were proved.

3. Conversely learned counsel for the respondent argued, that the appellant had tried to build up a case which was never pleaded in the written‑statement and that the evidence led on the alleged plea of knowledge from 13‑1‑1991, or on the basis of transfer of possession, having not been so pleaded in the written statement, cannot be looked into and was rightly ignored by the two Courts below. He maintained, that the case of the appellant, in the written‑statement, was that the respondent/plaintiff had knowledge of the sale from 19‑1‑1991 as the mutation was allegedly attested in "Jalsa‑e‑Aam" of Deh but the evidence was led on altogether different premises and there being contradiction in the evidence and pleadings, the appellant was rightly disbelieved by the two Courts below. Leered counsel submitted, that even otherwise, the property having not been partitioned by any decree of the Court or otherwise, any alleged holding of 'Hissa Darri' possession in pursuance of any family arrangement would not amount to partition of Khata and the respondent would continue to be co‑sharer in the joint Khata. Referring the Revenue Record, it was argued that the land was still shown as joint and undivided. Learned counsel submitted, that the respondent was undeniably co‑sharer in the land which qualification, the appellant did not possess. Regarding Talbs it was argued that the knowledge of sale was acquired on 8‑2‑1991 when in the same meeting, the, respondent made Talb‑e‑Muwathabit which was followed by notice for Talb‑e‑Ishahad. He submitted that the notice of Talb‑e‑Ishahad Was issued to the respondent, at the address given in the mutation and also at the Chak where the land in suit was located and it was received by the father who was also Attorney. The notice was not sent to the father in his name but was addressed to the vendee. He maintained, that sending of registered notice attested by two truthful witnesses is requirement of law and service is not a pre‑condition, though in this case, the notice was received by a duly constituted agent. Regarding objection of non appearance, it was argued, that the respondent being a lady, could be represented through Attorney, in the proceedings of the suit. He, however, submitted that the Talbs were made by the respondent herself which is proved by the evidence on record, and thus, the requirement of law stood satisfied.

4. The points raised, have been given due consideration and the evidence led by the two sides, has been reviewed, with the assistance of learned counsel for parties.

5. The respondent claimed superior right of pre‑emption on the ground of being co‑sharer in the Khata. To prove this plea, she produced, oral as well as documentary evidence. Admittedly, the respondent is a co‑sharer in the Khata, of which the land subject‑matter of sale forms part. The oral as well as documentary evidence, led by the respondent, also corroborate her plea of being a co‑sharer in the Khata which is not denied even by the witnesses of the appellant. Exh.P‑4, copy of Jamabandi for the year 1985‑86, strengthens as the case of respondent and prove her to be a co‑sharer.

6. In the course of cross‑examination to the witnesses of respondent and also in his evidence, the appellant attempted to build‑up a case which was not pleaded in the written‑statement. The appellant in the evidence, came‑up with a story, that the stare in the joint Khata were separated on the basis of an alleged family arrangement and that by virtue thereof, the vendee‑appellant, was given separate possession and on this assumption, it was claimed that the Khata was no longer joint nor the respondent was a co‑sharer any more. From the written statement, it is observed, that no such plea was raised by the appellant. In para.3 of the written‑statement, it was evasively stated that the respondent had no superior right of pre‑emption and it was not pleaded, if the property had been partitioned, by virtue of any family arrangement or that the Khata stood partitioned or also that the appellant was in possession of specific portion, in pursuance of any such arrangement. It is a settled rule that material facts must be alleged in the pleadings and that evidence cannot be led on a plea of which no foundation has been laid in the written‑statement. It is also a rule, that if any fact is raised in the evidence or some evidence is led on a plea, which did not find mention in the pleadings, it should not be allowed to come on record and in case, the evidence comes on record, the same will be over looked and not considered. Reference can be made to Taiyaba A. Kapadia. v. Agha Ziauddin Barani (1981 CLC 1267), Muhammad Shafi v. Rehmat Ali (1985 CLC 432), Saiyed Ali Amir v. Messrs Dalmai Cement Ltd. (PLD 1961 Karachi 255), Haji Ghaffar‑Haji Habib Janu v. Khawaya Wakil‑Ahmed (PLD 1959 Karachi 611) and Siddik Muhammad Shah v. Mst. Saran and others (AIR 1930 PC 57(l)). In view of the rule given in the‑ precedent cases, the defence sought to be raised, in evidence by the appellant cannot be looked into or considered. Even otherwise, there is no substance, in the point raised. According to respondents, on the sale of the property, the respondent and her husband, after retaining a part of the property, allegedly delivered possession of specific portion to the vendee, and that by virtue of the alleged private settlement, the Khata stands partitioned. No documentary evidence has been placed on record to prove or ex facie establish that the Khata stands partitioned or the share of petitioner stood separated or that the respondent has ceased to be a co‑sharer in the Khata. No mutation has been sanctioned, no entry has been made in the Revenue Record. The Revenue Record, copies of which have been placed on the record, still indicate that the Khata is joint and undivided. In "Shaukat Ali v. Sakindar Hayat etc." (1995 PSC 648), it was held, that Hissadari Qabza of a co sharer does not tentamount to partition. In "Ism Gul. v. Meer Khan and 17 others" (1997 SCMR 1282), it was held Hissadari possession through family arrangement is always subject to regular partition and that where the co‑sharers are in Hissadari possession of the joint land, under any family arrangement it will not amount to partition of the property. Learned counsel for the appellant placed reliance on "Shah Hussain v. Abdullah Khan and others" (PLD 1967 Peshawar 284), wherein it is held, that the right of pre‑emption is not purely a personal right but is available to the pre‑emptor as a co‑sharer and is lost with the loss of ownership by transfer. It was further observed that the object of right of pre‑emption appears to be that the pre‑emptor should have tangible objective right in the property which affords him basis for the exercise of the right of pre emption and un-tangible subjective or paper right does not give the pre‑emptor the right to assail the transaction of sale. The case referred to, has distinguishing features and facts, and therefore, it does not in any way, strengthen the position of the appellant. In the said case the pre‑emptor by voluntary act transferred his entire entitlement and did not remain a co‑sharer and also lost the qualification of being a co‑sharer and thus, in this back drop, it was observed, that a person, who was once a co‑sharer but it ceased to be so at the date of sale or by parting with his rights in the joint property would not be a co‑sharer and could not claim pre‑emption. A co‑sharer, for the purposes of pre‑emption would mean a person who holds an, existing joint proprietary interest whether absolute or limited in an undivided property and not merely in its adjuncts or appendages. In the present case, the property has not so far been divided. Revenue Record proves beyond doubt, that the Khata, is joint. The plea of delivery of possession and separation of share, tried to be built up in evidence, was not raised in the pleadings and cannot be considered or accepted. Even otherwise, holding of Hissadari possession by virtue of any alleged family arrangement or private settlement, would not tentamount to ultimate partition of the Khata nor the respondent would cease to be a co‑sharer on such plea. Relying on the rule, laid in the above noted precedent cases, I am of the view that the submission made by learned counsel for the appellant, in this regard, is devoid of merit and is accordingly repelled.

7. As regard Talbs, the case of respondent was, that she came to know of the sale, on 8‑2‑1991 from Muhammad Sharif, in the Majlas of Muhammad Sharif, Muhammad Shafi, Muhammad Rafique, Muhammad Tufail and Barkat, when she announced her superior right of pre‑emption, and intentions to enforce the same, which was followed by a notice of Talb‑e‑Ishahad. Muhammad Sharif appeared as P.W.4 and deposed that 20 days from the attestation of mutation he came to know of the sale and told this fact to the respondent, who declared her intention to pre‑emption the sale. He also deposed, that afterward a notice was sent by the respondent to the appellant and he was a witness to this notice. Muhammad Shafi appeared as P.W.5 and after corroborating the statement of P.W.4, proved making of Talb‑e‑Muwathabit and Talb‑e‑Ishahad by the respondent. P.W.6 and P.W.7 also corroborated the statements of P.W.4 and P.W.5. Abdul Ghani husband of respondent appeared as her attorney and also deposed, that the respondent came to know of sale from Muhammad Sharif when she announced her intention to enforce her right of pre‑emption, in the same Majlas which was followed by a notice of Talb‑e‑Ishahad depatched to the vendee. There is, thus, enough evidence on record, to prove, that Talb‑e‑Muwathabit was made, in the same Majlas, by the respondent, at the time when she acquired knowledge of sale.

8. The first argument against the Talb, was that the respondent came to know of the sale on 13‑1‑1991 but she did not make Talb‑e‑Muwathabit and instead claims to have made it on 8‑2‑1991. The plea, that the respondent acquired knowledge on 13‑1‑1991 was not raised in the written‑statement and therefore, it was an afterthought which vvas attempted to be introduced in evidence. In the written‑statement, the plea was, that the mutation took place on 19‑1‑1991 in the Jalsa‑e‑Aam and that since then, the respondent was allegedly having knowledge of the sale. It was in evidence, that the appellant tried to introduce a story, that the bargain was struck on 13‑1‑1991 when the mutation was entered and that the possession was with the tenant Muhammad Aslam, who was holding the land, as a tenant of respondent and her husband and that he allegedly delivered the possession on the asking of respondent and her husband. On this story, it was attempted to be argued that the respondent should have made Talb‑e‑Muwathabit at the spur of the moment, when she acquired knowledge. As noted supra, this plea has not been raised in the written‑statement and, therefore, neither any evidence could be led nor the evidence so recorded, could be given any value. It was an afterthought story, which was advanced, at the evidence stage. If there had been any basis, it should have been pleaded in the written‑statement. Even otherwise, the story introduced in evidence could not be proved. Admittedly, neither the attendance of respondent nor her husband is marked, either in the report of Patwari at the time of entering mutation or at the time of attestation of mutation nor they are witnesses to the transaction. The respondent has categorically stated, that the mutation was sanctioned in a clandestine manner in the Dera of a relative of the vendee and it was kept secret and for this reason, none of the Lumerdars had attested the same. This fact finds corroboration from the evidence of the appellant himself. D.W.1, Khushi Muhammad the attorney of appellant, admitted in cross‑examination, that on 19‑1‑1991, Tehsildar came at the Dera of Ch. Akram, Councillor where the mutation was attested. Obviously Dera of Ch. Akram Councillor would not be a public place nor it could be said, that the mutation was attested in Jalsa‑e‑Aam. He further admitted in cross‑examination, that mutation was not got attested from the Lumberdar. Muhammad Akram Councillor was admitted to be the cousin of D.W.1, D.W.2 also admitted that there were three Lumberdars in the village but none of them attested the mutation. In these circumstances, when the mutation was attested at the Dera of Muhammad Akram Councillor, a relative of the appellant, the same was not attested by any of the Lumberdars of the village, and the respondents presence was not mentioned in the mutation, the entire story of the appellant, that the mutation was sanctioned in Jals‑a‑Aam and every one in the village came to know of the sale, lacks foundation. Similarly, the transfer of possession was not mentioned in the mutation itself. The plea of transfer of possession is further falsified, by the admission made by the D.Ws. D.W.1, attorney of appellant admitted, that Rabee crop was harvested‑by Aslam tenant. D.W.2 also admitted that Rabee crop was harvested by the tenant Aslam. The Rabee crop is harvested normally in April/May season. If the tenant continues to be in possession and harvest the crop in May, 1991 then the total story of the appellant, about the delivery of the possession by the tenant, on 13‑1‑1991 at the instance of respondent and her husband and about the alleged knowledge of sale to them stands belied. The fact, that the tenant continued in possession, as per admission of D.Ws., uptil Rabee 1991, would show that neither any possession was transferred on 13‑1‑1991 nor there was any question of knowledge of sale to respondent. As against this, the witnesses produced by respondent proved, that she came to know of the sale on 8‑2‑1991, and that she made Talb‑e‑Muwathabit in the same Majlas where she expressed her intentions to enforce her superior right of pre‑emption. The first Talb namely Talb‑e‑Muwathabit thus, sufficiently stands established in the evidence.

9. As regard Talb‑e‑Ishahad, the appellant do not deny the receipt of notice of Talb‑e‑Ishahad. The notice vas proved, by producing P. W .1, P. W.2, P.W.3, P.Ws.4 to

7. The Talb‑e‑Muwathabit was made on 8‑2‑1991 while notice of Talb‑e‑Ishahad was sent on 10‑2‑1991. The objection of the appellant is that the notice was addressed to the Attorney and not to the appellant. This objection is without any substance inasmuch as D.W.1, the father and attorney of appellant, admitted, in cross‑examination that the notice was addressed to Shahid appellant which was received by him. He admitted his signatures on the Acknowledgement Due receipt Exh.P‑

1. He categorically stated, that it was not sent through him but was directly addressed in the name of appellant. This being so, the objection raised by the appellant, is without any foundation. The sale was made through D.W.1, who throughout acted as attorney of the appellant. The notice was sent at the address of the appellant given in the mutation and also at the Chak where the land was situated. This being so, the notice was properly addressed. In law, the requirement of the notice of Talb‑e‑Ishahad is that the notice has to be sent, at the address of the appellant or at least at the place where the land is situated. In this case, the notice was sent to the village/Chak No.257/GB, which was the place where the land is situated and also the address of the vendee given in the mutation Exh.P‑

1. Learned counsel for the appellant placed reliance on "Ikram‑ud‑Din and others v. Ghulam Ahmed Khan and others' (1995 MLD Lahore 1689) where it was held that failure to make Talb promptly would extinguish the right of pre‑emption. It was observed that Talb‑e Ishahad in terms of section 13 of Punjab Pre‑emption Act, 1991 should be made through a notice sent registered post acknowledgement due, which should be attested by two truthful witnesses and it should be made soon after Talb‑e- Muwathabit but not later on two weeks from the date of knowledge and also that it should be addressed at the correct address through registered post acknowledgement due. It was further held that the non‑issuance of notice in terms of section 13 of the Act would disentitle the pre‑emptor to enforce his right of pre‑emption. In the present case, the notice was addressed through registered post acknowledgement due, it was addressed, at the place, where the land was situated and also was the address given in the mutation, it was attested by two truthful witnesses, it was sent within two days from Talb‑e‑Muwathabit and that it reiterated the making of Talb‑e‑Muwathabit, and therefore, the requirement of law was sufficiently proved. In Aliman Begum v. Ali Husan and others (AIR 1923 Allahabad 355) it was observed that the Muhammadan Law requires that the second demand should be made either in the presence of the vendor or vendee or on the property i.e., subject‑matter of pre‑emption. As noted supra, the notice in the present case was sent at the address of the vendee which was given in the mutation Exh.P‑6 which was also the place where the land is situated. Receipt of notice has beers admitted in the written‑statement as well as in the statement of D.W.1. The two witnesses, who have attested the notice, were proved to be truthful in cross‑examination and their credibility could not be shaken. This being so, the second Talb namely Talb‑e‑Ishahad stood established on the record and no exception can be taken therefrom.

10. Learned counsel for the appellant relying on Mst. Salma v. Manzoor Hussain etc. (1996 CLC 623), argued that the respondent did not appear in this case and she was represented by her husband who appeared as P.W.3. In the said case, it was held that the Talb made by husband or "Behnauee" on behalf of female pre‑emptor would not be constituted to be a proper Talb. In the precedent case, the witness produced, had deposed, that the Talb‑e‑Muwathabit was made by the husband, who at that time was not the attorney of the female pre‑emptor and it was in that situation, the view taken was that proper talb was not made. The facts of the present case are quite distinguishable, inasmuch as, in this case all the witnesses have categorically deposed, that Talb‑e‑Muwathabit was made directly by the respondent‑pre‑emptor and it is not the case of the respondent that she made Talb‑e‑Muwathabit or Talb‑e‑Ishahad through her husband. Rather her case is that on acquiring knowledge of sale she herself made Talb‑e- Muwathabit and announced her intentions to enforce right of pre‑emption. This being so, the abovementioned precedent case does not strengthen the cause of the appellant any longer. The respondent, being a lady, could be represented through attorney, who was incidentally her husband, in the Court proceedings, nevertheless, she is required, in law, to make the three Talbs by herself. Law permits appearance of ladies through attorneys, in the Court proceedings, to which no objection can be raised. Anyhow, the Talbs at the initial stage, had to be made by the female pre‑emptor herself which are proved in this case, to have been made by the respondent at the relevant time. The attorney and the other witnesses have deposed that the attorney was present at the time when Talb‑e- Muwathabit was made and notice of Talb‑e‑Ishahad was issued, therefore, he could appear on behalf of the pre‑emptor, in the proceedings of the suit and personal appearance of respondent was not mandatory, in the given circumstances of the case, particularly when any special facts were not claimed to be in her knowledge.

11. As a sequel of what has been noted supra, it is concluded, that the two Courts below have not in any way, committed any jurisdictional error or legal informity, in holding, that the respondent had proved the requisite Talbs and that she had superior right of pre‑emption to pre‑empt the sale. No misreading or non‑reading of the evidence could be pointed out or observed in the course of hearing of this appeal. For the reasons above, this appeal being devoid of merit, is dismissed, with not order as to costs. A.A./S‑178/L Appeal dismissed