2006 PLP 200 (CLC)

MUHAMMAD ZAFAR YASIN, J.

Through this civil revision the petitioners/plaintiffs have challenged the judgment and decree dated 18-9-1997 passed by the learned Civil Judge, Khushab, A whereby their suit for possession through pre-emption was dismissed and also have challenged the judgment and decree dated 3-11-1999 passed by the learned Additional District Judge, Khushab, whereby their appeal was dismissed.

2. Brief facts of the case are that the respondent Muhammad Bakhsh purchased agricultural land measuring 11 Kanals, 11 Marlas, fully described in the plaint, through an oral sale from Mahfooz-ul-Haq vendor for consideration of Rs.2,02,

125. In this respect Mutation No.168 was attested on 18-10-1993. The plaintiffs/petitioners, as alleged in the plaint, got knowledge of the sale through Subedar Mian Muhammad and Sher Bahadar on 27-11-1993. Hence the plaintiffs/pre?emptors made Talb-e-Muwathibat and thereafter sent a registered notice of Talb-e-Ishhad to the vendee/defendant through registered post acknowledgement due on 7-12-1993 and thereafter filed this suit on 13-12-1993. The suit was contested by the vendee/defendant by filing written statement, wherein he denied not only the superior right but also raised the objection that the plaintiffs did not make Talb-e-Muwathibat and Talb-e-Ishhad as required by law. Hence they have relinquished their right.

3. On the pleadings of the parties, following issues were framed. (1) Whether the plaintiffs have superior right of pre-emption qua the defendants? OPP (2) Whether the requirements of Talbs have not been fulfilled by the plaintiffs? OPD (3) Whether the plaintiffs are entitled to exercise their right of pre-emption on the basis of Zarar and Zaroorat? OPP (4) Whether the plaintiffs have no cause of action and locus standi to bring the suit? OPD (5) Whether the plaintiffs are estopped by their words and conduct to bring the suit? OPD (6) Whether the suit being partial one is not maintainable in its present form? OPD (7) Whether the defendant is entitled to incidental charges? If so, to what extent? OPD (8) Whether the ostensible sale price has bonafidely been fixed and actually paid? OPD (8-A) If issue No.8 is not proved in the affirmative then what was the market value of the suit property at the time of sale? OPPs (9) Relief.

4. The parties led oral as well as documentary evidence. The learned trial Court decided issues Nos.2 and 3 against the plaintiffs/pre-emptors and as a result thereof dismissed the suit vide judgment and decree, dated 1-9-1997. The plaintiffs/petitioners filed appeal before the learned Additional District Judge, Khushab, who dismissed the same vide judgment and decree, dated 3-11-1999. Hence this civil revision.

5. Learned counsel for the petitioners has argued that all the plaintiffs proved through P.Ws. 3 and 4 regarding Talb-e-Muwathibat and Talb-e-Ishhad and also further produced Exh.P.1, copy of notice sent through registered post to the vendee/defendant. All the plaintiffs came to know of the sale on 27-11-1993 and made Talb-e-Muwathibat then and there and within two weeks thereof; i.e. 7-12-1993, they had sent notice of Talb-e-Ishhad through registered post. Hence the findings of the two Courts below on issue No.2 are illegal. As regards findings of the two Courts below on issue No.3, learned counsel for the petitioners has argued that Zaroorat and Zarar were asserted in the plaint but Shariat Appellate Bench of Supreme Court of Pakistan had declared section 6(2)of the Punjab Pre-emption Act, 1991 as repugnant to the Injunctions of Islam and the decision has taken effect from 31-12-1993. Hence the findings of the two Courts below on issue No.3 are also not maintainable.

6. On the other hand, learned counsel for the respondent/vendee has argued that the Courts below have concurrently found that the plaintiffs/petitioners had come to know of the sale on the date of attestation of mutation i.e. 18-10-1993, while Talb-e-Muwathibat was allegedly made on 27-11-1993, hence the plaintiffs have relinquished their right and further Talb-e-Ishhad was not made within two weeks of the knowledge of sale i.e. 18-10-1993. Hence the findings of the two Courts below are in accordance with law and do not call for interference in exercise of revisional jurisdiction. Further argued that concurrent finding of fact based on legal evidence cannot be interfered with in exercise of revisional jurisdiction. While neither misreading nor non-reading of the evidence have been pointed out Reliance is placed on Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53.

7. Heard. Record perused.

8. It is the duty of the plaintiffs/pre-emptors to, first dislodge the presumption of notice of sale under section 31 of the Punjab Pre-emption Act and then assert date of knowledge. While in the case in hand, there are five pre-emptors and there is nothing on record to show that plaintiffs Nos.1, 2 to 4 and plaintiff No.5 are in any way related to each other and they all are family members and have a joint living. Admittedly only one of the plaintiffs Mian Muhammad has appeared as P.W.5, who did not claim of having power-of-attorney on behalf of other pre-emptors, nor other pre-emptors appeared in the Court to assert that they had acquired knowledge only on 27-11-1993 and made Talb-e-Muwathibat immediately. Furthermore even in the evidence the plaintiffs have failed to prove the date, time and place when all the plaintiffs/pre?emptors were present including female pre-emptor and all of them had made jumping demand on the receipt of information of sale. As the plaintiffs have failed to rebut the presumption of notice of sale under section 31 of the Punjab Pre-emption Act, hence it shall be presumed that they had attained the knowledge of attestation of the sale with two weeks of the attestation of mutation i.e. 18-10-1993, in particular when P.W.4 Sher Bahadar categorically stated in his cross-examination that P.W.3 had informed about the attestation of mutation on the same day when it was attested and further P.W.5, one of the plaintiffs, himself also admitted that when Subedar Mian Muhammad P.W.3 had informed about the sale, only one of the pre-emptors was available in the house. Hence the plaintiffs/petitioners have failed to establish their case through evidence on the record. The concurrent findings of the two Courts below are based on legal evidence and no misreading or non-reading of material evidence has been shown by learned counsel for the petitioners. The plaintiffs/pre-emptors also did not produce any evidence whatsoever to prove issue No.3. Even one of the plaintiffs who had appeared as P.W.5 did not state a single word about Zarar and Zaroorat. In this case the sale was completed on 18-10-1993 and pre-emption suit was filed on D 13-12-1993. Hence it had to be decided according to the then existing law. Decision of Honourable Supreme Court in Haji Rana Muhammad Shabbir Ahmad's case PLD 1994 SC 1 being prospective in terms of Article 203-H of the Constitution of Islamic Republic of Pakistan, 1973 will have no bearing to the case in hand. In view thereof the judgments of two Courts below on issues Nos.2 and 3 are in accordance with law.

9. In view thereof, this civil revision having no force is hereby dismissed, leaving the parties to bear their own costs. Revision dismissed. H.B.T./A-574/L?????????????????????????????????????????????????????????????????????????????????? Revision dismissed.