2022 PLP 212 (MLD)

RASAAL HASAN SYED, J.

This civil revision is directed against judgment and decree dated 23.5.2011 of learned Addl. District Judge, Malkwal whereby the judgment and decree dated 25.4.2006 of the Trial Court was set aside and suit of respondent was decreed.

2. Petitioner Muhammad Abbas purchased a piece of land measuring 12 marlas vide Mutation No. 8332 dated 08.5.1995 for a sum of Rs. 1,00,000/-. Respondent Muhammad Eshaq, brother of the petitioner, instituted a suit for possession to pre-empt the sale. Another suit was filed by one Raja Muhammad Aslam to pre-empt the same sale. Both the suits were consolidated, issues were framed on 05.3.1997 and after evidence, the suits filed by Muhammad Aslam and respondent Muhammad Eshaq were dismissed on 25.4.2006 due to absence of sufficient proof to establish performance of the Talbs. Raja Muhammad Aslam accepted the fate of his case and did not file any appeal. Muhammad Eshaq, respondent herein, only challenged the judgment and decree of Trial Court in appeal which was partly accepted vide judgment and decree dated 23.5.2011 by the learned Addl. District Judge, Malkwal. The respondent and petitioner were found to be co-sharers and in terms of section 20 of The Punjab Pre-emption Act, 1991 the land was ordered to be held by the parties in equal share. In the instant revision petition, judgment of the Appellate Court is now under challenge.

3. It was inter alia argued that the findings of the Appellate Court on issue No.3 were based on misreading and non-reading of evidence; the mandatory pre-requisites were not only missing in the pleadings and also could not be proved in evidence and that the findings on the question of Talbs recorded by the learned Civil Judge were predicated on correct analysis of evidence which were illegally interfered with in appeal by complete misreading and non-reading thereof and that the evidence on record established beyond doubt that the respondent possessed knowledge of the sale from day one but had failed to call the requisite Talbs in a timely manner and that service of notice of Talb-e-Ishhad was never proved. Learned counsel for the respondent who had argued the case at length on the last date supported the judgment and submitted that the findings were correctly recorded by the appellate court and no ground was made out for interference either on facts or in law.

4. Perusal of the record of the suit as also the appeal, copies whereof have been appended with the revision petition, reveals that two suits i.e., Raja Muhammad Eshaq v. Muhammad Abbas and Raja Muhammad Aslam v. Muhammad Abbas were filed by Raja Muhammad Eshaq and Raja Muhammad Aslam, respectively, to pre-empt the sale of piece of land measuring 12 marlas purchased by the petitioner vide mutation No. 8332 dated 08.5.1994. The suits were consolidated and consolidated issues were framed, parties produced their respective evidence, and after considering the same as also points raised pro and contra, the suits were dismissed by the learned Civil Judge with the findings that the requisite Talbs could not be proved. Raja Muhammad Aslam, pre-emptor, accepted the fate of his case and did not challenge the judgment of Trial Court in appeal, while the appeal was only filed by Raja Muhammad Eshaq to the extent of his claim in the plaint.

5. Case set up by respondent in his plaint was that he acquired knowledge of sale on 21.5.1995 when he allegedly announced his pre-emption right and fulfilled Talb-e-Muwathibat and, thereafter, sent a notice of Talb-e-Ishhad. The plea raised by the respondent was seriously controverted by petitioner both in the preliminary objections and also in the reply on facts wherein it was specifically stated that the requisite Talbs were never made, as such, the suit was not maintainable and that the respondent was an active participant in the sale transaction and had the knowledge of the sale throughout. Perusal of the plaint reveals that in paragraph "3" thereof, the petitioner asserted that after having knowledge of sale on 21.5.1995, he spontaneously announced the right of pre-emption in the presence of witnesses in the same Majlis. It is evident from the first portion of contents of paragraph "3" that the respondent did not disclose the source of his knowledge nor gave the names of witnesses in whose presence the first announcement of pre-emption was allegedly made. Instead, it is only in respect of the notice of Talb-e-Ishhad that the petitioner alleged that thereafter (by use of the word "phir") he in the presence of Abdul Hameed son of Aziz Khan, Musharaf son of Sharafat Ali and Raja Aurangzeb son of Muhammad Iqbal went to the lawyer and got the notice of Talb-e-Ishhad prepared and posted for service. Copy of the notice is Exh-D1/2 perusal whereof shows that the respondent neither mentioned the date, time or place of alleged knowledge of sale nor gave the name of informer and simply asserted that on acquiring knowledge of sale, he allegedly made announcement of his right of pre-emption. It is plain that the foundational written document in respect of claim of the respondent, was copy of the notice Exh-D1/2 wherein there is no specific mention of time or place of the receipt of information of sale on 21.5.1995 nor name of the person in whose presence he was allegedly informed of sale was mentioned and that in the latter part of paragraph the names of witnesses were given in the context of notice of Talb-e-Ishhad which was allegedly dated 29.5.1995. It was only in the plaint that the plaintiff made an improvement and asserted that at 7.00 a.m. he made the first announcement of pre-emptory right. While appearing as his own witness the respondent as D.W.1/2 he deposed that he got the knowledge of sale on 21.5.1995 and at that time Raja Aurangzeb and Musharaf were sitting with him and that Musharaf had died and that on getting the information of sale from Abdul Hameed he made his first announcement of pre-emption. It was thus an improvement which was not controverted by the assertion in notice Exh-D.W.1/2 and that the stance of respondent was highly doubtful. Another important factor which was taken note of by the learned Trial Court was that while appearing as D.W.1/2, in his cross-examination, the petitioner denying the suggestion as to his presence at the time of sale, also deposed that Muhammad Aslam, rival preemptor got the sale transaction concluded. This obviously demolished the plea of the petitioner in the plaint that he came to know of the sale on 21.5.1995. Abdul Hameed the alleged informer appeared as D.W.3/2 and deposed that he had informed the respondent about the sale when he allegedly made the announcement of pre-emption. Perusal of his statement produced no other impression except that it was not worthy of any credence. Reason being the witness did not claim to be present at the time of the attestation of mutation or in the same assembly where the mutation was attested nor did he claim to be a part of bargaining process. He did not even disclose the source or the basis of his information of sale, particularly when he had no interest in the sale and did not claim to have been deputed by the respondent for the purpose of seeking information of sale. He was as such someone who claimed that without any rhyme or reason he visited the pre-emptor and simply disclosed about the sale and, thereafter, left the place. The entire story on the face of it appeared to be concocted. In the absence of any special interest in the transaction or special reason to get such an information, a bald claim of having made disclosure to the respondent of the same was rightly disbelieved by the learned Civil Judge. The witness even in his cross-examination, when suggested that the respondent was present in the transaction, he did not outright rule out the same, and instead expressed his lack of knowledge in this regard. He even expressed his ignorance about the existing construction at site. The learned Civil Judge after considering the contradictions, omissions and the facts noted supra and also the aspect that the respondent was the real brother of the petitioner, resident of the nearby house where the plot was situated, admitted the fact that the petitioner was in possession of the suit property and also that the evidence on record proved that a signboard was affixed at the site after sale of plot, which fact was not cross-examined and also the evidence on record indicated that the respondent actively participated in the process of transaction of sale in favour of the petitioner and was fully aware of the sale from day one. As such the story of alleged acquisition of knowledge later or of making of Talb-e-Muwathibat was not found to be believable by the learned Civil Judge whose analysis of evidence was correct but the learned Addl. District Judge ignored all these legal and important aspects of the case and by non-reading and misreading the evidence, assumed otherwise which view is legally unsustainable.

6. In the matter of notice of Talb-e-Ishhad too, the respondent was required to prove that the Talb was made in the presence of two truthful witnesses, the same was duly posted and that it was actually received by the vendee. In the instant case, the petitioner in the written statement and also in the statement of D.W.4/2 denied the service of notice or performance of Talb-e-Ishhad. So much so that on being confronted with the signatures on the "Acknowledgement Due" the witness denied the signatures of the vendee. This being so, it was all the more necessary for the respondent to have summoned the postman and produced him as a witness. There is a considerable force in the submission of learned counsel for the petitioner that the postal receipt which was produced did not mention the name of the sender nor did it give any indication that it pertained to the alleged notice which was allegedly banked upon as notice of Talb-e-Ishhad and that the original notice was never requisitioned nor the postman was produced to prove the actual service, particularly, when the respondent's own witnesses D.W.2/2 and D.W.3/2, witnesses to the alleged notice, had stated in cross-examination that they did not know as to whether the notice was ever posted or not.

7. It is a settled rule that where Talb-e-Ishhad is disputed and receipt of notice of Talbe-e-Ishhad is denied, it is for the pre-emptor to prove through credible evidence that the Talb was made in the presence of two truthful witnesses; notice of Talb-e-Ishhad duly attested by two truthful witnesses was sent through registered-post "Acknowledgement Due" and that a notice was received by the addressee. In the instant case the respondent had denied the performance of requisite Talbs in the preliminary objections and also in the evidence and had denied the receipt of notice as well. Petitioner did not make any effort to produce the postman who had allegedly delivered the notice particularly when the signatures on "Acknowledgement Due" were not admitted and also the situation where his own witness D.W.2/2 and D.W.3/2 had expressed lack of knowledge as to the posting and delivery of notice in cross examination. In "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866) it was observed to the effect that the onus to prove Talb-e-Ishhad is upon the pre-emptor and if the vendee denied the factum of receipt of notice in the written statement, it would be obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence which undoubtedly requires the production and examination of postman. In "Khan Afsar v. Afsar Khan and others" (2015 SCMR 311) it was observed to the effect that mere sending of notice would not suffice on making Talb-e-Ishhad; the vendee must be apprised about the intentions of pre-emptor; the notice should be served upon the vendee and that where the receipt of notice is denied by the vendee the pre-emptor shall be obligated to prove the notice of Talb-e-Ishhad as prescribed by section 13(3) of Act ibid. was duly served upon the vendee which if not done, the necessary component to succeed in a pre-emption suit will not have been fulfilled. Reference can also be made "Mir Muhammad Khan and 2 others v. Haider and others" (PLD 2020 SC 233) where similar view was affirmed.

8. In the present case as noted supra, the requisite Talb-e-Muwathibat could not be proved, the petitioner was proved to be fully aware of the sale from the date of transaction, the plea of receiving information on 21.5.1995 and of making first demand, could not be proved through any credible evidence and despite denial of the receipt of notice no efforts was made to prove service of notice of Talb-e-Ishhad and postman was also not produced in evidence and in these circumstances, the learned Civil Judge rightly observed that the requisite preconditions under section 13(3) of the Act ibid. having not been fulfilled, the alleged right of pre-emption stood extinguished and rightly dismissed the suit in result. The Appellate Court ignored all the discrepancies and omissions in the evidence as noted by the Trial Court and by complete non-reading and misreading of the evidence interfered with the findings of fact. The view taken by the Appellate Court is based on no legal evidence and is otherwise also against settled rule and is not legally sustainable.

9. For the reasons above, this revision petition is accepted, the judgment and decree dated 23.5.2011 of learned Addl. District Judge, Malkwal is set aside and the judgment and decree dated 25.4.2006 of the learned Civil Judge dismissing the suit of respondent is restored. ZH/M-233/L Revision accepte