2018 PLP 499 (YLR)

MUJAHID MUSTAQEEM AHMED, J.

This revision petition filed in terms of Section 115 of the C.P.C. is directed against the judgment and decree dated 29.1.2014 passed by learned Civil Judge Ist. Class, Samundri, Distt. Faisalabad whereby suit for pre-emption filed by the petitioner/plaintiff was dismissed and the judgment and decree dated 5.10.2015 passed by the learned Addl. Distt. Judge, Samundri whereby appeal filed by the petitioner was also dismissed.

2. Succinctly facts of the case are that the respondent has purchased the suit land, detailed in the plaint, on the basis of mutation of sale No.1254 attested on 24.12.2008. The present petitioner filed pre-emption suit with the assertion that he has right of pre-emption being "Shafi Sharik", "Shafi Khaleet" and "Shafi Jar" and he came to know about sale under pre-emption on 05.02.2009 at 4:00 p.m. through Muhammad Ilyas informer/PW-2 while he was sitting at his `Dera' in the company of Muhammad Qaiser Abbass PW.3 (petitioner's son) and Ibad Ali (since dead) and he immediately made "Talb-e-Muwathibat". On 19.02.2009, the petitioner along with above named witnesses visited Tehsil Kachery Samundri, got scribed notice of "Talb-e-Ishhad" (Ex.P.1) from Mian Ashfaq Hussain, Advocate/PW.5 and dispatched the same to the respondent through registered letter A.D. (Ex.P.3) but he refused to receive the notice. The respondent contested the suit denying the factum of making of Talbs, pre-requisite of a pre-emption suit. Learned trial Court after framing necessary issues, recorded evidence of the parties and vide the impugned judgment and decree dismissed suit of the petitioner. Appeal filed by the petitioner against the judgment and decree dated 29.1.2014 also failed before learned Addl. Distt. Judge Samundari, as noted above. Hence this petition.

3. I have noticed that the Issue No. 6 was crutial in this case upon which fate of the case revolves. The same was as under:-- "Whether the plaintiff has fulfilled the requisite Talbs?"

4. Arguments advanced by learned counsel for the petitioner heard and record available on file perused in the light of his submissions.

5. The petitioner, in order to prove this issue, entered the witness box as PW.1 and deposed in line with his case stated in the plaint regarding making of "Talb-e-Muwathibat" and "Talb-e-Ishhad". During cross-examination he conceded that the respondent was in cultivating possession of the suit property from the date of purchase of the same and he himself has witnessed the respondent while taking possession of the suit property. Muhammad Ilyas PW-2/ informer of sale in his examination-in-chief corroborated version of petitioner regarding making of "Talb-e-Muwathibat" and "Talb-e-Ishhad" on the respective dates. He also claimed that he has informed the petitioner about sale under pre-emption. Muhammad Qaiser Abbas-PW-3 (son of petitioner) in examination-in-chief endorced testimony of the petitioner regarding making of "Talb-e-Muwathibat" on 05.02.2009 and dispatch of notice of "Talb-e-Ishhad" to respondent on 19.02.2009. During cross-examination he admitted that property of the petitioner is situated around the property under pre-emption. He conceded that suit property was sold away on 24.12.2008. During cross-examination he deposed that he was unable to narrate that how many days after making of "Talb-i-Muwathibat", notice of "Talb-e-Ishhad" was sent to the respondent. He also deposed that he was not in a position to narrate or read the contents of notice of "Talb-e-Ishhad". Mian Muhammad Ishfaq PW-5, scribe of notice deposed that he has scribed notice Exh.P1 on the direction of the petitioner after perusing the documents, meaning thereby that the petitioner has not conformed/reitereated before the scribe making of "Talb-i-Muwathibat" on 05.02.2009. During cross-examination he deposed that notice Ex.P.1 was scribed by him on 2.9.2009 (even before alleged date of "Talb-Muwathibat"). Abdul Wahid PW.4, Postal Clerk Samundri proved receipt of registered letter (Ex.P.4). During cross-examination he conceded that it was not receipt of Registered Post Acknowledgement Due, meaning thereby that purportedly notice of "Talb-e-Ishhad" was not sent through registered letter A.D. It is worth mentioning that no postman has come in witness box to prove service of notice of "Talb-e-Ishhad". Respondent (DW-1) has specifically stated that the petitioner has failed to make Talbs to succeed in his suit. He further deposed that possession of property under per-emption was delivered to him on the very date of attestation of mutation of sale and since then he was enjoying possession over it. From the above noticed evidence of the parties it is abundantly established that the sale was effected on 24.12.2008 vide mutation of sale No.1254 and on that very date, possession of property under pre-emption was delivered to the respondent/vendee and this fact was in the knowledge of the petitioner from day one but he later on concocted a story of "Talbs" at belated stage. When it is established that "Talb-i-Muwathibat" was not made immediately on the knowledge of sale on 24.12.2008, even making of "Talb-e-Ishhad" will not be taken as timely compliance of Section 13(3) of the Punjab Pre-emption Act, 1991. From the testimony of petitioner it is established that he himself has not conformed/reitereated making of "Talb-I-Muwathibat" at the time of execution of notice of "Talb-e-Ishhad". As such requirement of making "Talb-e-Ishhad" has not been fulfilled by the petitioner. I have further noticed that PW-3 witness of notice of "Talb-e-Ishhad" was unaware of contents of this notice. He has not even been able to read out the contents and showed his inability of reading the same. As such he has attested the same in a casual manner and the same cannot be taken as valid attestation of the notice by the witnesses. In celebrated precedent reported as Muhammad Zahid v. Dr. Muhammad Ali (PLD 2014 Supreme Court 488) following principle has been laid down regarding making of "Talb-i-Ishhad" under Section 13 of the Punjab Pre-emption Act (IX of 1991):-- "The respondent stated in his evidence recorded in the Court that he signed and sent notice to the vendee but he did not state anywhere that he confirmed his intention to exercise his right of pre-emption. Talb-i-Ishhad which, in fact, is confirmation of intention to exercise a right of pre-emption cannot be held to have been established by mere signing and sending of notice. The witnesses examined in the Court, too, did not state anything regarding confirmation of such intention. One of the attesting witnesses, so called, rather turned the table on the respondent when he stated that he signed the notice in Urdu but the signature found thereon is in English. This also shows that he neither signed nor attested the notice in terms of section 13 of the Act. The argument of learned Advocate Supreme Court for the appellant that mere signing and sending of notice cannot be held to be a substantive compliance with the provision of section 13 of the Act, is thus, not without substance. We, therefore, have not hesitation to hold that Talb-i-Ishhad in the circumstances of the case cannot be held to have been established in accordance with the requirements of section 13 of the Act." Similar view has been taken in case law Muhammad Iqbal v. Rasheeda Bibi and others (2016 CLC 111 Lahore), Manzoor Hussain and another v. Abdur Rasheed Khan (2013 YLR 2488 Peshawar), Mst. Hukam Jana through L.Rs. v. Kabeer Khan (2012 MLD 1555 Peshawar) and Muhammad Ramzan and another v. Zahid Pervaiz and 2 others (2014 YLR 453 Sindh). PW.5 Scribe has claimed that notice of "Talb-e-Ishhad" was executed on 2.9.2009 and as such he has totally smashed the petitioner's case of making "Talb-e-Muwathibat" on 5.9.2009, execution and dispatch of notice of "Talb-e-Ishhad" on 19.9.2009. The notice was not sent to the respondent through Registered Post A.D. as is evident from the testimony of Registery Clerk. No Postman has been produced to prove service of notice of "Talb-e-Ishhad" upon the respondent. In the case titled as Bisharat Ali Khan v. Muhammad Akbar (2017 SCMR 309) the Hon'ble Supreme Court has held as under:-- "Section 13(3) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgement due. The only situation in which the Act, 1991 does not require the sending of notice by registered cover acknowledgement due is when the post office facility is not available to a pre-emptor (S.13(3) proviso of the Act, 1991). Secondly, according to the case law, the prescribed condition of service of notice by registered cover acknowledgement due may be relaxed where the defendant/vendee admits that he has received notice of Talb-e-Ishhad. In all other cases, service of notice of Talb-i-Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a pre-emptor plaintiff. This means that if any of the afore-mentioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proven by a plaintiff, he dishonours his manda-tory obligation and consequently, his pre-emption suit must fail." Thus the Courts below on the basis of correct and proper appreciation of evidence on record have answered curtail issue No.6 with regard to fulfillment of Talbs against petitioner and as such the same calls for no interference by this Court. It is settled principle of law that concurrent findings of Courts below cannot and should not be interfered by this Court in its revisional jurisdiction unless the same are shown to be based on misreading or non-reading of evidence or glaring illegality/irregularity has been committed by the learned courts below while appreciating the evidence on record. Reliance is placed on case law reported as Ghulam Qadir and others v. Sh. Abdul Wadood and others (PLD 2016 SC 712), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad (2012 SCMR 730) and Shafi Muhammad and others v. Khanzada Gul and others (2007 SCMR 368). Learned counsel for the petitioner has failed to point out any such mis-reading/non-reading of evidence or illegality/irregularity in the impugned judgments.

6. Consequently, I do not find any force in this petition which is accordingly, dismissed in limine. ZC/M-151/L Revision dismisse