2003 PLP 1038 (MLD)

(4) Whether the plaintiff has made the necessary demands as required by law? OPP. (5) Whether the plaintiff has got no cause of action to file this suit? OPP (6) Whether the suit is undervalued for the purposes of court fee and jurisdiction? If so, what is the correct valuation? OPD. (7) Whether the defendants are entitled to the expenses incurred by them for completion of sale? OPD. (8) Whether the defendants have made improvements. If so, to what extent? OPD. (9) Whether the plaintiff has got superior right of pre-emption qua the vendee/defendant? OPP. (10) Whether the ostensible sale price of Rs.90,000 was fixed in good faith and actually paid? OPD. (11) If Issue No.10 is not proved what was the market value of the suit-land? OPPs. (12) Relief.

3. The trial Court recorded the evidence of tire parties comprising of the statements of P.W.1 Khalil Ahmad, P.W. 2 Lal Khan, the alleged witnesses of 'Talbs' and that of Muhammad Akram, Patwari and that of the plaintiff who appeared as P.W.

4. The plaintiff also. produced Allah Ditta, Branch Post Master as P.W. 5 to prove his 'Talb-I-Ishhad' and produced Ch. Mumtaz Akhtar, Advocate as P.W.6, the scribe of the notice of 'Talb-i-Ishhad'. The respondents/defendants to rebut the evidence of the plaintiff produced D. W.1 Ali Ahmad, D. W.2, Muhammad Amin and one of the witnesses Ali Asghar appeared as D.W.3. The trial Court after recording evidence of the parties and giving them an opportunity of hearing dismissed the suit of the plaintiff. It was held by the trial Court that the price was Rs.90,000 and the defendants also incurred an . expenditure of Rs.10,000 for the purpose of registration and District Council Fee. It was also held that the plaintiff was having superior right A of pre-emption. However, the trial Court was not satisfied with regard to the proof of 'Talbs' and dismissed the suit. The plaintiff feeling himself aggrieved filed an appeal before the First Appellate Court from where his appeal was also dismissed and it was held by the First Appellate Court that the 'Talbs' have not been completed. The petitioner has challenged the judgments and decrees of both the Courts below through. this revision petition. Even before this Court learned counsel for both the parties are only at variance with regard to the question of performance of 'Talbs' which is Issue No.4 and have only addressed the Court on this aspect.

4. Learned counsel for the petitioner submits that the plaintiff was informed of the sale by one Muhammad Hayat and immediately he in presence of Khalil Ahmad and Lal Khan trade 'Talb-i-Muwathibat' and on the same evening he in the company of Khalil Ahmad, P. W. 1 went to the house of Ali Asghar, respondent No.1/defendant No.1 and made 'Talb-i-Ishhad' and he also issued notice in this regard. P.W. 1 Khalil Ahmad has also stated in a similar manner that on 10-1-1991 he was present in the house of the plaintiff alongwith Lal Khan where Muhammad Hayat came and informed about the sale of the property and the plaintiff made his 'Talb-i-Muwathibat' and- then he in the company of plaintiff went to the house of defendants and made 'Talb-i-Ishhad' and also issued a notice. P. W .2 Lal Khan appeared and made a statement corroborating the statement of P.W.1 Khalil Ahmad. P.W. 5 Allah Ditta, Branch Post Master admitted the acknowledgement receipts Exh. 'P W. 5/1 and Exh. P.W. 5/2 to have been issued from their post office and that both were received by Ali Asghar, defendant P. W. 2 Mumtaz Akhtar, Advocate has simply stated that the notice was written by him. Learned counsel for the petitioner further submitted that by production of their evidence comprising of the statement of Khalil Ahmad, P.W. 1, Lal Khan, P.W.2 and the plaintiff himself as P.W. 4 'Talb-i-Muwathibat' is established on record and by production of Allah Ditta, P.W. 5, Branch Post Master and by production of photo copy of notice (Exh.P.W.6/1) 'Talb-i-Ishhad' is also proved. It is also submitted that by time, date and place of making of 'Talb-i-Muwathibat' is not necessary to be recorded and in the present case there has been misreading and non-reading of evidence on record and the judgments and decrees of the Courts below are liable to lie set aside.

5. Learned counsel for the respondents has controverted these allegations and submitted that the judgments and decrees of both the Courts below are correct with regard to the question of failure to perform 'Talbs' by the plaintiffs/petitioners. It is also submitted by learned counsel that in proof of 'Talb-i-Muwathibat' Muhammad Hayat who gave the information of sale to the plaintiff has not been produced as a witness. It is also submitted that the suit property is situated in village Machora. Both the parties are resident of village Machora. The sale agreement in question was completed on 12-9-1990 and the statements of the parties were recorded on 26-9-1990 and it was attested on 9-1-1991. As admitted by the Patwari Muhammad Akram, who appeared as P. W. 3 that the plaintiff being resident of the same small village had come to know of the sale on 26-9-1990 and the plaintiff did not make 'Talb-i-Muwathibat' and 'Talb-i-Ishhad' accordingly. It is also submitted that registered notices alleged to have been issued to Muhammad Ashraf were not dispatched to him at the address of Abu-Dhabi, Muhammad Ashraf is residing in Abu-Dhabi and is not resident of Pakistan. The plaintiff in this manner also failed to fulfil Talb-I-Ishhad .

6. After having heard learned counsel for both the parties and scanning the record and the notice of `Talb-i-Ishhad' issued to Ali Asghar and Muhammad Ashraf jointly, the facts relevant for determination are as to when did the plaintiff come to know of the sale. The sale was entered into on 12-9-1990, the statements of both the parties with regard to it were recorded on 26-9-1990 and the mutation was attested on 9-1-1991 and the plaintiff alleged to have knowledge of the sale on 10-1-1991 only upon information supplied to him by Muhammad Hayat. But Muhammad Hayat has not been produced as a witness before the Court. However, the plaintiff allegedly on coming to know of the sale from Muhammad Hayat in presence of Lal Khan and Khalil Ahmad made his 'Talb-i-Muwathibat'. No such question or knowledge of sale prior to 10-1-1991 has been put to the plaintiff or any of the P. Ws. in the cross-examination. There is no evidence on record on behalf of the respondents/defendants to this effect that that the plaintiff was having knowledge of sale prior to 10-1-1991. Therefore, date of Knowledge of sale by the plaintiff is presumed to be 10-1-1991 and he immediately made 'Talb-i-Muwathibat'. The plaintiff allegedly issued notice of `Talb-i-Ishhad on 20-1-1991 within a period of 14 days from the making of `Talb-i-Muwathibat' and date of knowledge of sale. The original notice is not available' on record. There are also certain alterations in the notice Exh. P.W.6/1 with regard to the parentage of Lai Khan (one of the attesting witnesses). The address as per pleadings of the parties is village Machora, Tehsil Kharian, District Gujrat. Muhammad Ashraf did not submit his address of Abu Dhabi even in the written statement furnished by him. The written statement furnished by Muhammad Ashraf bears the signatures of Ali Asghar as his attorney. The notice Exh. P. W.6/ 1 was received by the attorney Ali Asghar but in view of the fact of alteration in the notice of 'Talb-i-Ishhad' it has become doubtful and its veracity is shaken and held to have been issued by the plaintiff/pre-emptor not duly attested by the two truthful witnesses as provided under section 13(3) of the Pre-emption Act. Section 13(3) is reproduced below:-- "Where a pre-emption has made 'Talb-i-Muwathibat' under sub section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre emption. "

7. Apart from this situation there is nothing in the notice that 'Talb-i-Ishhad' was made in confirmation of the fact of making of `Talb i-Muwathibat' and in this regard, I am being guided by PLD 2002 SC 488, it was observed by the Hon'ble Supreme Court that at the time of making `Talb-i-Ishhad' which is confirmation of the `Talb-I- Muwathibat'. The pre-emptor in presence of witnesses should attribute such words which would be sufficient to gather his intention that earlier to it he made 'Talb-i-Muwathibat' and this 'Talb-i-Ishhad' is made in confirmation to making of `Talb-I- Muwathibat. The findings with regard to proof of `Talbs' is a question of fact and the findings are concurrent by both the Courts below. No case of misreading and non-reading of evidence on record has been made out. No illegality or material irregularity is established on record.

8. In view of the above discussion there is no scope for interference through exercise of this revision petition in the judgments and decrees of both the Courts below. As such the present revision petition is dismissed being without any substance or force with no order as to costs. H.B.T./G-236/L Revision dismissed.