2016 PLP 1236 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

The facts germane for the disposal of the instant civil revision are that suit property fully mentioned in para 1 of the plaint was purchased by the petitioner (hereinafter to be referred as vendee) by means of attestation of mutation No.551 dated 6.1.2003. The said sale was pre-empted by the respondent (hereinafter to be referred as pre-emptor) while claiming to have preferential right of pre-emption over the sale of disputed property and that he performed the requisite demands as per law. The suit was contested by the vendee with the specific defence that the pre-emptor had no such preferential right and no notice of Talb-e-Ishhad was dispatched to him. While facing with the contest of the vendee, the learned trial court put the parties into trial after settling the issues and both the parties produced their evidence in pros and cons. The preferential right being co-sharer of the pre-emptor stood proved on file and the findings on issue No.1 even today have not been agitated by the learned counsel for the vendee. However, the learned trial court after answering issue No.2 regarding performance of Talbs in the negative dismissed the suit filed by the pre-emptor vide judgment and decree dated 22.1.2007. Being aggrieved, an appeal was preferred by the pre-emptor before the learned lower appellate court, who vide impugned judgment and decree dated 6.5.2009 reversed the findings of the learned trial court on issue No.2 and while deciding the same in affirmative in favour of the pre-emptor, decreed the suit. Feeling dissatisfied, the instant civil revision has been filed by the pre-emptor.

2. The learned counsel for vendee submitted that the vendee categorically denied that either any notice of Talb-e-Ishhad was dispatched by the pre-emptor through registered post A.D. or it was served upon him and as per dicta laid down in the judgments reported as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105), "Allah Ditta v. Muhammad Anar" (2013 SCMR 866) and "Khan Afsar v. Afsar Khan and others" (2015 SCMR 311), the pre-emptor having failed to prove the fulfillment of second demand as per law, the suit is liable to be dismissed while acceptance of the instance civil revision and setting aside of the impugned judgment and decree passed by the learned lower appellate court.

3. In response, the learned counsel for the pre-emptor submitted that notice of Talb-e-Ishhad was dispatched to the vendee, which was served upon him by the concerned Postman and in this regard he has referred to the Postal Booking Receipt (Ex:P2) and Acknowledgment Due Receipt (Ex:P3), which is sufficient proof that the pre-emptor succeeded to prove performance of requisite Talb-e-Ishhad as per law. He has lastly prayed for the dismissal of the instant civil revision.

4. Arguments heard. Record perused.

5. The perusal of paras 7 and 8 of the plaint reveal, that the pre-emptor categorically pleaded that notice Talb-e-Ishhad was dispatched to the vendee on 16.1.2003 and that was received by him, whereas, the vendee in relevant paras of the written statement categorically denied the said fact. This was also reiterated by the vendee in the witness box while appearing as DW

2. There is no cavil with the proposition that affirmative onus to prove Talb-e-Ishhad was on the pre-emptor and as the vendee specifically denied this factum in his written statement as well as in his deposition being DW2, it was obligatory on the pre-emptor to have proved the sending of notice Talb-e-Ishhad by giving affirmative evidence, which undoubtedly required examination of Booking Postal clerk as well as Postman in the witness box. The production of said officials from the Post Office to prove the performance of requisite second demand was essential for pre-emptor and non-production thereof in evidence has already been declared fatal for the success of pre-emption suit by the superior courts in the above referred judgments referred to by the learned counsel for the pre-emptor. For ready reference the relevant portion of Khan Afsar's case (supra) is reproduced hereunder:- "The fact that the notice was merely sent would not suffice for the making of Talb-i-Ishhad. The vendee must be apprised about the intention of the pre-emptor. The acknowledgment due slip that was presented (Exhibit P.W.6/2) was also signed by the said Rashid Khan, and not by Muhammad Aslam Khan. Therefore, it cannot be stated that the requisite Talb-i-Ishhad had been made. The notice should have been served upon the vendee/addressee, Muhammad Aslam Khan. Pre-emption is attended to by its own law and also provides for the manner of sending notice. The general law as contained in section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 stipulates, "under registered cover acknowledgment due" (emphasis added) whereas the words "acknowledgment due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa. In the case of Muhammad Bashir (supra) it was held, that:-- "

11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant'. The service of the addressee as prescribed in law therefore is imperative. If the acknowledgement card carried an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah b. v. Election Officer [1980] 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."

6. The said lapse on the part of the pre-emptor was fatal, who miserably failed to prove the performance of requisite second demand as per law laid down by the apex court and the learned lower appellate court erred in law while answering the issue No. 2 in affirmative in favour of the Pre-emptor which being not sustainable and the said findings are reversed. Since the pre-emptor failed to cross the barrier of performance of requisite talbs as per law in absence whereof a suit for possession through pre-emption cannot succeed, I do not want to dilate upon other issues, which will be sheer wastage of time.

7. Sequel of the above discussion is that the instant civil revision is accepted, the impugned judgment and decree dated 06.05.2009 passed by the learned lower appellate court is hereby set aside and the judgment and decree dated 22.01.2007 delivered by the learned trial court, by virtue of which, the suit for possession through pre-emption filed by the pre-emptor was dismissed, is restored.. ZC/M-90/L Revision allowed.