P L D 2012 Lahore 480 (PLP)

RAUF AHMAD SHEIKH, J.

The petitioners have assailed the vires of judgment and decree dated 14-2-2012 passed by the learned Additional District Judge, Sialkot, whereby an appeal filed by them against the judgment and decree dated 24-12-2010 of the learned Civil Judge Ist Class dismissing the suit for possession through pre-emption, was dismissed.

2. The facts in brief as emerge on perusal of the record are that Abdul Haq predecessor of the present petitioners, who died during the pendency of the suit and is now represented by them, filed a suit for possession through pre-emption in respect of land measuring 17 kanals 18 marlas fully described in para No.1-A of the plaint. It was contended that the disputed land was owned by one Pervaiz son of Bashir, who alienated the same in favour of the respondents for a sum of Rs.1,00,000/- but a fictitious sale price of Rs.3,00,000/- was entered in the mutation in order to deprive the plaintiff (since dead) of his rights. He contended that he attained the knowledge about the sale on 2-5-2008 at about 2:30/3.00 P.M at his residence at Kamal Pur Bajwa, Tehsil Pasrur through Abdul Ghaffar son of Abdul Haq and in presence of the witnesses namely Abdul Salam, Abdul Haq and Tahir Islam, he immediately made a pronouncement that he has superior right of pre-emption and would enforce the same and thereafter, sent separate notices to the respondents in writing requiring them to transfer the land for a sum of Rs.1,00,000/- or the money paid by them in good faith but they refused. Hence, the Talb-i-Khusumat was made through institution of the suit. He contended that the co-sharers in the khata and his land and the land in dispute have common passage and watercourse, while the respondents/defendants do not possess all these qualities and as such he has superior right of pre-emption. The learned trial court after framing the issues dismissed the suit. The learned ADJ upheld the findings of the learned trial court. The petitioner has been non-suited due to his failure to prove making of Talb-i-Muwathibat.

3. The learned counsel for the petitioners has contended that both the Courts below have failed to appreciate the evidence properly; that the minor discrepancies were not sufficient to non suit him; that the learned trial court misconstrued the evidence and that the learned ADJ failed to rectify the irregularity committed by the learned trial court and as such did not exercise the jurisdiction vested in him. In support of the contentions raised reliance is placed on 2002 SCMR 219, AIR 1925 Patna 743 and 1994 CLC 506 (Lahore).

4. Abdul Ghafffar P.W.1, who is real son of the deceased plaintiff and is now one of the petitioners as his legal representative and had allegedly informed the plaintiff about the sale, stated that when he arrived at his residence, his father along with witnesses was standing in the courtyard/Varanda and thereafter they made consultation for 2/3 minutes about the sale and when Abdul Haq made pronouncement about the filing of the suit for pre-emption, he went inside the house. It is obvious from this statement that the plaintiff and other witnesses made consultation for 2/3 minutes and only thereafter, the plaintiff had made pronouncement for filing the suit for possession through pre-emption. Talb-i-Muwathibat means 'jumping demand'. If it is made after consultation and pondering over, it cannot be deemed to be Talb-i-Muwathibat. The consultation will signify pondering over the benefits in filing the suit for pre-emption, which negates the spirit of Talb-i-Muwathibat as elucidated in explanation No.1 under Section 13 of the Punjab Pre-emption Act, 1991. Once a person makes consultation or ponders over, he cannot say that he had made jumping demand, which is essence of Talb-i-Muwathibat. The learned counsel for the petitioners has contended that Talb-i-Muwathibat connotes immediate pronouncement within reasonable time and 2/3 minutes spent on consultation would not deprive the pre-emptor of his valuable right. This argument is devoid of force. A person, who is really in need of the property or wants to avoid 'Zarar' within the meanings of subsection (2) of section 6 of the Punjab Pre-emption Act, 1991 (IX of 1991) would not make consultation before making the pronouncement but would immediately make his intention regarding filing of the suit clear. The learned trial court and the learned ADJ both properly appraised the evidence available on the record and arrived at just conclusions. The case-law cited at the bar is not applicable on the facts of the present case. The concurrent findings of two courts of competent jurisdiction based on proper appraisal of the evidence do not call for any interference in exercise of revisional jurisdiction. The petition is without merits and the same is hereby dismissed in limine. K.M.Z./A-100/L Petition dismissed.