1999 PLP 2716 (YLR)

Briefly stated the facts are that Mst. Alam Bibi, and others were owners of land measuring 4 Kanals and 5 Marlas described fully in para. No. l of the plaint. They alienated the same in favour of Muhammad Yaqoob and others vide Mutation No.2820, dated 30‑6‑1991. The plaintiffs/petitioners pre‑empted the said sale by filing the suit asserting that actually the land was sold for Rs.74,000 but to defeat their superior right of pre‑emption, an ostensible sale price of Rs.1,00,000 was disclosed in the said mutation. The pre‑emption claimed their superior right of pre‑emption being co‑sharers in the Khata as well as co‑sharers in the watercourse. They further alleged that on coming to know about the said transaction, they approached the defendants/vendees/ respondents in the presence of Inayat Ali and Muhammad Asif and requested them to hand over the possession to them in recognition of their superior right of pre‑emption but they did not accede to their request. They further alleged that they had given notice of Talb‑e -Ishhad to the defendants/respondents but finding no positive reply from them, filed the suit for possession through pre‑emption against them. The suit was resisted by the defendants/respondents who raised various preliminary objections and asserted that the suit land has been purchased for a sum of Rs.1,00,000 and a sum of Rs.10/11,000 has further been spent on ancillary expenses. They asserted that Talabs had not been made in accordance with law, as such the suit was not maintainable. It was, thus, prayed that the suit be dismissed.

2. From the pleadings of the parties, the trial Court framed the following issues: (1) Whether sale of the suit property was made with the consent of the plaintiffs as such suit is not maintainable? OPD. (2) Whether suit is not properly valued for the purposes of court‑fee and jurisdiqtion, if so what is correct valuation? OPD. (3) Whether plaintiff incurred Rs:10/11 thousand as mutation expenses, if so what is correct valuation? OPD. (4) Whether Rs.1,00,000 was bonafidely fixed and paid a sale price of the suit property at the time of sale? OPD. (5) If issue No.4 is not proved what was the market value of the suit property at the time of sale? OPPs. (6) Whether the plaintiff has no cause of action or locus standi? OPD. (7) Whether the suit is instituted out of agreed and for enrichment purpose? OPD. (8) Whether the plaintiff has not fulfilled pre‑requisite of Shuffa? OPD. (9) Whether the plaintiff has got superior right of pre‑emption qua the vendee/defendant? If so whether the plaintiff has fulfilled pre‑requisite of Shuffa? If so whether the plaintiff is entitled to the decree as prayed for? OPP. (10) Relief. In support of their stand, the plaintiffs/petitioners examined Muhammad Asif P. W .1, Muhammad Abid, Advocate P.W.2, P.W.3, Inayat Ali and one of the plaintiffs Sajid Zaman appeared as P.W.4. In rebuttal, the defendants/respondents examined D. W .1 Muhammad Sadiq, D.W.2 Muhammad Nawaz and one of the defendants/respondents Muhammad Yaqoob appeared as D. W .3.

3. After going through the evidence produced by the parties, the learned trial Court dismissed the suit of the plaintiffs/ petitioners vide judgment and decree, dated 20‑3‑1994. Being aggrieved of the said judgment and decree, they filed an appeal which also met the same fate vide judgment and decree, dated 11‑3‑1998. Hence the instant civil revision.

4. Arguments have been heard and record perused.

5. Contention of learned counsel for the plaintiffs /petitioners is that they have been non‑suited for non‑fulfilment of Talbs as required by section 13(3) of the Punjab Pre emption Act, 1991 as the Courts below have held that the plaintiffs/petitioners had failed to perform Talb‑e‑Muwathibat. He submitted that although Talb‑e‑Muwathibat was not explicitly mentioned in the plaint but it stood proved from the notice of Talb‑e‑Ishhad, as such the Courts below were not justified in non‑suiting them on account of non‑fulfilment of provisions of section 13(3) of the Punjab Pre‑emption Act, 1991. He next referred to Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 SC 883) and submitted that pleadings should be liberally construed and even if some fact is not stated with clarify and in detail in pleadings, the Court should give its findings on such issue in the light of evidence led by the parties. While elaborating his contention, he submitted that although it was not specifically mentioned in the plaint that Talb‑e- Muwathibat was made by the plaintiffs/ petitioners, yet this fact was evident from the evidence brought on record and as such the Courts below could not non‑suit them merely on the score that factum of Talb‑e- Muwathibat was not mentioned in the plaint.

6. Conversely, learned counsel for the defendants /respondents supported the judgments and decrees under revision. He contended that impugned sale took place on 30‑6‑1991 and as per statement of Sajid Zaman P.W.4 he came to know about this transaction after three months which means that he came to know about this transaction on 30‑9‑1991, that his this assertion stands belied by his own conduct as he served notice of Talb‑e‑Ishhad upon the defendants/ respondents on 10‑9‑1991, that if he had come to know about the impugned transaction on 30‑9‑1991 how he served the notice of Taib‑e‑Ishhad on 10‑9‑1991, that as per evidence brought on record, plaintiffs/ petitioners came to know about this transaction when he obtained the copy of mutation on 3‑9‑1991, that as per contents of plaint, it is not proved that they made Talb‑e- Muwathibat on coming to know about this transaction, that even the statement of P.W.4 is silent on than score, that it was incumbent upon the plaintiffs/petitioners to perform Talb‑e‑Muwathibat in the first instance and then Talb‑e‑Ishhad, that as Talb‑e- Muwathibat was not made in the instant case, so question of Talb‑e‑Ishhad is immaterial. He submitted that as plaintiffs/petitioners failed to disclose in the plaint about Talb‑e- Muwathibat and failed to prove even during trial, so the Courts below have passed the impugned judgments and decrees in accordance with law and revision petition is devoid of any force. The plaintiffs/petitioners have filed the instant suit for possession through pre -emption, claiming their pre‑emptive right over the suit land. A perusal of the plaint clearly shows that they nowhere mentioned about Talb‑e‑Muwathibat and they also did not disclose in the plaint as to when notice of Talb‑e‑Ishhad was sent to the defendants/respondents. It has simply been stated that on coming to know about this transaction, they approached the defendants/respondents and requested them to hand over the suit land in recognition of their superior right of pre‑emption. The contents of the plaint are absolutely silent regarding making Talb‑e‑Ishhad as well as about the date of knowledge of this transaction. During the trial, it has been deposed by P.W.4 that he came to know about this transaction after about 3 months. Admittedly, transaction took place vide mutation No.2820, ' dated 30‑6‑1991. If the said stand of P. W .4 is accepted as correct, then it means that he came to know about the instant transaction on 30‑9‑1991. However, his this contention stands belied by his own act, as he has served the defendants/respondents with notices of Talb‑e‑Ishhad, dated 10‑9‑1991. If the plaintiffs/petitioners came to know about the transaction on 30‑9‑1991, now they have served the defendants/respondents with notices of Talb‑e‑Ishhad on 10‑9‑1991. It is, thus, clear that the plaintiffs/petitioners had come to know about this transaction prior to 10‑9‑1991. Again it was mandatory on the part of the plaintiffs/petitioners to disclose the date of knowledge of transaction, place of the knowledge and also date of issuing notice of Talb‑e‑Ishhad. Admittedly, neither the date nor time nor place of Talb‑e‑Muwathibat has been given in the plaint nor date of Talb‑e -Ishhad has been mentioned in the plaint. Thus, the legal requirements of section 13(3) of the Punjab Pre‑emption Act, 1991 have not been complied with by the plaintiffs/petitioners. There is no doubt that it has been mentioned in PLD 1997 SC 883 that pleadings should be liberally construed and even if some fact is not stated with clarity and detail in pleadings, the Court is empowered to give findings on such issue in the light of evidence led by the parties. In the instant case, neither the date, time and place of Talb e‑Muwathibat nor date of issuing notice of Talb‑e‑Ishhad was mentioned in the pleadings nor said facts have been brought on record while recording statement as P.W.4. Thus, question of liberally construing the pleadings in the instant case does not arise. On the other hand, it has been held in Khani Zaman v. Shah Hussain and others (PLD 1998 SC 121) that if no date of Talb‑e‑Muwathibat is mentioned in the plaint nor place of acquiring knowledge of transaction is mentioned nor names of any witnesses are given, the suit has to fail to that score.

8. Having considered the contentions raised by learned counsel for the parties, it is clear that the plaintiffs/petitioners had failed to mention in the plaint necessary detail as to the time and place of Talb‑e‑Muwathibat which was necessary for the calculation of the period of limitation for Talb‑e‑Ishhad. Both the Courts below have passed the impugned judgments and decrees in accordance with law. There is no force in the civil revision and the same is hereby dismissed. Q.M.H./M.A.K./S‑388/L Revision dismissed.