2000SCMR216 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

This petition for leave to appeal has called in question the dismissal of Civil Revision No. 2461 of 1996 upholding the order of non-suiting the pre-emptor-petitioner on the ground of having not made "Talabs' in accordance with law passed by the trial Court and had been duly affirmed by the first appellant Court.

2. The learned trial Judge found on issue No. 5 which covered the plea that the requirements of "Talabs' as envisaged by section 13 of the Punjab Pre-emption Act (IX of 1991) had not been fulfilled. In this context, the trial Judge held that the pre-emrtor/petitioner had the knowledge of the sale of the land in dispute on 12-4-1989 when he had filed the earlier plaint claiming a perpetual injunction qua the sale in dispute against the respondents and that the averment in the suit for pre-emption that he got the knowledge of the sale on 19-1-1990 was not well-founded. The pre-emptor-petitioner was, thus, non/suited by the trial Court.

3. The learned Additional District Judge, Kharian, who was seized of the appeal, filed by the pre-emptor-petitioner, maintained the afore-noted findings and observed as under:-- "The sale sought to be pre-empted is dated 20-2-1989, whereas the original suit was instituted on 25-1-1990 i.e. about 10 months after the sale. It may be noted here that the appellant also instituted a suit for permanent injunction in respect of the impugned sale on 12-4-1989 i.e. within about two months of the impugned sale. Para. No. 2 of the said earlier suit has specifically mentioned the impugned sale which become a grouse for the said suit which would undoubtedly show and prove that the appellant came to know about the impugned sale somewhere before 12-4-1989 or any time before the lapse of 15 days after 12-4-1989. P.W.1 close relative of the appellant stated that it was on 19-1-1990 that upon the receipt of his knowledge about the impugned sale that he informed the appellant on the same date on which the plaintiff made the "Talbs". The appellant appearing as P.W.3 stated that; which would mean that the impugned sale dated 20-2-1989 came to knowledge somewhere in the month of August 1989. Why despite that he not only delayed the instituted of the suit for pre-emption but also the making of the 'Talabs' upto 19-1-1990 i.e after the lapse of over four months after the origin of his knowledge, Talbs-e Muwathibat, it may be noticed here, looses its worth and significance if the same is not prompt immediate and made simultaneously with the origin or knowledge about the sale. Similarly after the holding of the protection under section 35 of the Pre-emption Act as repugnant to Islam even Talb-e-Ishhad cannot be accepted having been made without a written notice and that too a notice issued within a period not exceeding two weeks after, the knowledge of the impugned sale. Talb-i-Ishhad, it may also be noted here, is a confirmation of Talb-i-Muwathibat. The aforesaid two provisions are non-existent in this case. "

4. The first Appeal was dismissed on 4-7-1995.

5. The learned Judge in Chambers of the two Courts below on the controversy involved in the case, observed as follows:-- "Learned counsel for the petitioner could not satisfy me as to how the concurrent findings of fact recorded by the two Courts below was illegal or tainted with such material irregularity, so as to warrant interference by this Court in revisional jurisdiction. In his bid to persuade me to reach a different conclusion learned counsel wished me to re-appraise the evidence. I am afraid this is not possible under section 115, C.P.C. Even if a different view of the evidence could be formed, the same cannot be substituted for that concurrently reached by the two learned Courts below."

6. In seeking leave to appeal, Mr. Muhammad Munir Peracha, learned Advocate Supreme Court, pointed out that the learned two Courts below and the learned Judge in Chambers had not appreciated the obvious fact that the date on which suit for pre-emption had been filed by the petitioner no law of pre-emption was in force, and therefore, the case fell within the purview of section 35 of the Act. According to him, the petitioner had fulfilled all the requirements of "Talabs" strictly in accordance with section 13 of the Act and the learned two Courts below and the learned Single Judge of the High Court erred to hold on this issue against the petitioner.

7. In order to appreciate the first contention raised on behalf of the petitioner, it would be appropriate to reproduce hereunder section 35 of the Act:-- "(1) Notwithstanding anything in any other land for the time being in force, all the decrees, judgments or orders dismissing the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive), in which the right of pre-emption was claimed and is available under this Act, shall be of no legal effect, and such suits, on an application made by the aggrieved person, within sixty days of coming into force of this Act, shall subject to subsection (2) be decided afresh according to the provisions thereof. (2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talb-i-Ishhad in the presence of two truthful witnesses."

8. The bare reading of subsection (1) of section 35 of the Act would reveal that all decrees, judgments or orders dismissing the suits of pre emption, instituted between the two specified date Le 1-8-1986 to 28-3-1990, in which right was asserted and is available under the Act shall be of no legal effect, and such suits, on an application made by the pre-emptor within 60 days of coming into force of the Act, subject to subsection (2), is to be decided according to the provisions of the Act. Under subsection (2), it would be sufficient if the pre-emptor had made "Talb-i-Ishhad" in the presence of two witnesses. What the learned counsel intended to argue was that in the instant case only making of Talb-i-Ishhad was sufficient without recourse to Talb-i-Muwasibat."

9. The contention is devoid of nay substance on two-fold grounds; firstly, that the petitioner is not shown to have made an application at all muchless that moving it within 60 days and, secondly, this plea having not been taken before any forum below, could not be allowed to be raised at this belated stage before this Court.

10. In the peculiar circumstances of this case, we cannot hold that the "Talb-i-Muwasibat" and "Talb-i-Ishhad" had been made in accordance with section 13 of the Act and, therefore, right of the pre-emption vesting in the petitioner, if any, stood extinguished. There are concurrent findings of two Courts below and the learned High Court on the extinguishments of the right of pre-emption claimed by the petitioner. We do not find any cogent reason to interfere with the concurrent orders of the three learned Courts on the controversy raised before us.

11. Consequently leave prayed is declined and the petition is dismissed. H.B.T.M-392/S Petition dismissed.