2006 PLP 946 (MLD)

MUHAMMAD KAHLID ALVI, J.

With the concurrence of the learned counsel for the parties, this appeal is treated as pacca case.

2. Brief facts of the case are that appellants purchased property in dispute through Mutation No.280 attested on 31-1-2001 falling five different Khasra Nos. i.e. Khasra Nos.141, 231, 232, 239, 301 situated in Mouza Kotli Momula Tehsil and District Narowal. This sale was sought to be pre-empted by the two respondents Bashir Ahmad and Muhammad Sarwar by way of filing a pre-emption suit on 2-4-2001. The suit was contested by the appellants and ultimately decreed by the learned trial Court after recording evidence of the parties vide judgment and decree dated 11-7-2004. The same was assailed by the appellants through an appeal which was also dismissed vide judgment and decree dated 17-5-2004. Both these judgments and decrees are being assailed through the instant appeal.

3. Learned counsel for the appellants with reference to 2003 YLR 974, contends that since Bashir Ahmad respondent No.1 being co-plaintiff failed to appear in the trial Court and assert his right and performance of requisite Talbs in accordance with law. In this behalf the other plaintiff Muhammad Sarwar who appeared as P. W.2: had also not rendered any support to his case, therefore, his right stands extinguished.

4. It is next argued that in para 4 of the plaint, the respondents had mentioned the name of informer as Muhammad Naseer son of Muhammad Maqbool while the informer who appeared in Court as P.W.3 is Naseer Ahmad son of Maqbool Ahmad. It is contended that Naseer Ahmad and Muhammad Naseer are two different persons, therefore, the informer whose name was pleaded in the plaint never appeared in the Court.

5. It is next argued that Exhs.P1 and P2 are the receipts of acknowledgement which carries signatures of the appellant Muhammad Nawaz which appear to be forged by the naked eye as the handwriting of the signatures and address appears to be of the same person, therefore, it is contended that notice of Talab-e-Ishhad was never served upon the appellant.

6. However with respect to superior right he concedes that right of Muhammad Sarwar respondent extends to the extent of Khasra Nos. 141, 231 and

232. But disputes the right of respondents with respect to Khasra Nos.239 and

301. This statement is not controverted by the learned A counsel for the respondents and concedes that right of the respondents do not extend to the extent of Khasra. Nos.239 and

301. In view of the statement of the learned counsel for the parties, the issue of superior right is accordingly decided that respondents have superior right with respect to Khasra Nos. 141, 231 and 232 only.

7. On the other hand, learned counsel for the respondents has supported the impugned judgments and decrees by contending that the plaintiff is not required under section 13 of the Punjab Pre-emption Act, 1991 to prove and establish on record that the notice of Talab-e-Ishhad was served upon the defendant/vendee. Mere sending of notice under registered cover A/D is enough. It is next submitted that the confusion in the name of Muhammad Naseer and Naseer Ahmad is of minor nature as the parentage, caste, address etc. everything is common.

8. I have considered the arguments of the learned counsel for the parties.

9. Bashir Ahmad respondent No.1/plaintiff never appeared in the Court to assert his superior right and performance of Talbs. Respondent B No.2 however appeared as P.W.2 and stated that when they came to know about the sale, both the brothers claimed their superior right in the same meeting. Now it is to be seen that Bashir Ahmad respondent is not the brother of Muhammad Sarwar respondent, therefore, if some Talb was performed by some brother of Muhammad Sarwar respondent, that cannot serve the purpose of Bashir Ahmad. Resultantly it is held that Bashir Ahmad respondent has failed to establish on record that he had also performed Talb-e-Mawathabat, therefore, his right of pre-emption even if there is any, stands extinguished on account of non-performing of Talb-e-Mawathabat.

10. So far as the confusion in the name of Muhammad Naseer son of Maqbool Ahmed and Naseer Ahmad son of Maqbool Ahmad is concerned, it is of minor nature on account of the fact that all the other details of the said person are the same as given in the plaint and by P.W.3 himself. The appellants had not questioned his identity in the cross-examination, therefore, it does not prove fatal for the case of the respondents.

11. Exhs.P1 and P2 are the receipts of acknowledgment which although bear signatures of Muhammad Nawaz appellant but even if the said signatures were not there, still plaintiffs were not required to establish on record the receipt of notice by the vendee/defendants. The said receipts does show that notices were issued which is enough for section 13 of the Punjab Pre-emption Act, 1991.

12. For what has been stated above, this appeal is partly allowed, the suit to the extent of respondent No.1 is dismissed in toto while suit in respect of respondent No.2 is dismissed to the extent of Khasra Nos.239 and

301. However, the suit with respect to Khasra Nos.141, 231 and 232 shall remain decreed only in favour of respondent No.2 Muhammad Sarwar subject to payment of proportionate price Rs.3,44,720 if not deposited within one month from today. However if the plaintiffs have already deposited the total sale price of Rs.4,80,000 they will be entitled to refund of Rs.1,35,

280. No order as to costs. H.B.T./G-137/L Order accordingly.