2008 PLP 21 (MLD)

MIAN HAMID FAROOQ, J.

One Riasat Ali sold land measuring 10, Marlas (suit-land) to the respondent against a consideration of Rs.50,000, vide registered sale-deed, dated 25-4-2000. The petitioner, on 3-7-2000, filed the suit for possession through pre-emption, inter alia, pleading that the sale favouring respondent qua the land was kept secret from him; on 16-6-2000, he came to know about the sale and he then and there announced to exercise right of pre-emption; later on he sent notice to the respondent on 23-6-2000, which was attested by witnesses, and that he has a superior right of pre-emption. The respondent/defendant resisted the suit through the written statement thereby raising preliminary objections and asserting that the sale was known to everybody and that the petitioner failed to perform requisite "Talbs". The learned trial Court initially framed certain issues and recorded the evidence of the parties, however, later on issues No. 1-A' 1-B, 1-C and 1-D were reframed and the parties were called upon to produce additional evidence, which opportunity was availed. The learned trial Court admitted petitioner's superior right of pre-emption and decided issue No.5 in his favour, however, decided issue No.1-A (regarding performance of Talbs) against the petitioner and on the basis of findings on the said issue, dismissed petitioner's suit, vide judgment and decree, dated 24-3-2006.. Petitioner's appeal also failed, when the learned Addl. District Judge maintained the findings of the learned trial Court and dismissed his appeal, vide impugned judgment and decree, dated 7-9-2006, hence the present revision petition.

2. Learned counsel for the petitioner states that the sale-deed was registered on 25-4-2000, it was kept secret, the petitioner came to know about the sale on 16-6-2000 and he immediately made jumping demand and thereafter the registered notice was issued to the respondent on 23-6-2000, which was attested by two truthful witnesses," therefore, Talb i-Ishhad was performed and the suit was filed on 3-7-2000, and in this matter the petitioner performed all the Talbs as required under the law.

3. I have heard the learned counsel and perused the available record. I have deeply examined the plaint and find that the petitioner, in para. 3 of the plaint, has simply stated that he came to know about the sale qua the suit-land on 16-6-2000 and then in the same "Majlis", he announced to exercise his right of pre-emption. Para. 3 of the plaint is reproduced below::-- It is evident from the said reproduction of para.3 of the plaint that although the petitioner has narrated the date of performance of "Talb-i-Muwathibat", yet he did not mention the place and time of performance of "Talb-i-Muwathibat" inasmuch as he did not state that as to how and from whom the plaintiff came to know about the sale. He has comprehensively failed to mention that in which manner and from where he came to know about the sale. It is now settled law that it would be mandatory for a plaintiff to mention in the plaint the date, place and time of performance of "Talb-i-Muwathibat". The Hon'ble Supreme Court of Pakistan in a case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) has held that to give full effect to the provisions of section 13(2) and (3) of Punjab Pre-emption Act, 1991, it would be mandatory to mention in plaint the date, place, and time of performance of "Talb-i-Muwathibat". Here it appears appropriate to reproduce a portion of para.4 of the judgment, which really clinches the matter and reads as follows:-- "It is observed that great emphasis and importance is to be given to this word in making of Talb-i-Muwathibat and it is necessary as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre-emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-i-Muwathibat, in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-Ishad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb-i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute, i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit .." As the petitioner, admittedly, did not mention time and place of performance of Talb-i-Muwathibat in the plaint, therefore, in view of the latest law on the subject, as noted above, petitioner's suit deserves to be dismissed on this short ground.

4. Even according to the stance of the petitioner, the land was sold to the respondent, on 25-4-2000, through a registered sale-deed and he came to know on 16-6-2000, on which date, he statedly performed Talb i-Muwathibat. It may be noted that it has not been explained as to how and by which manner the sale was kept secret, when it was a registered sale-deed, which is presumed to be a notice to the public at large. Additionally P.W.1, in his cross-examination, has deposed that the sale took place 7/8 days prior to 16-6-2000 and that after one or two days the sale came to their knowledge. It has also been stated that after one or two days of the sale, it came to the notice of the plaintiff and other witnesses. Even otherwise it has not been proved on record that the petitioner, in fact, came to know about the sale on 16-6-2000. On this count too, the petitioner failed to perform Talb-i-Muwathibat as required under the law.

5. I have examined both the judgments and find that both the Courts, after adverting to the evidence on record, both oral as well as documentary, rightly came to the conclusion that the petitioner failed to make Talb-i-Muwathibat, as required under the law, and Talb-i-Muwathibat statedly made on 16-6-2000 regarding the sale held on 25-6-2000 cannot be held to be valid and legal Talb-i-Muwathibat. Although this Court, in exercise of its revisional jurisdiction, when the findings of facts are concurrent, is not required to reappraise the evidence on record, yet in the interest of justice, I have examined the evidence on record and find that the findings rendered and conclusions arrived at by both the Courts are not only in accordance with the record of the case but also in consonance with the law on the subject. No misreading or non-reading has either been urged or pointed out by the learned counsel. I feel that both the Courts while deciding the matter did not commit any illegality or material irregularity, therefore, there is no jurisdiction to interfere in the judgments in exercise of the revisional jurisdiction of this Court. Both the judgments are maintained.

6. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. Reliance is placed on Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610.

7. The concurrent findings of facts were recorded by both the Courts below which are based on proper appreciation of evidence, oral and documentary, produced by the respective parties before the learned trial Court. No case of misreading and non-reading of evidence has been made out, neither any legal infirmity has been pointed out by the learned counsel even during the arguments, nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below has been attributed.

8. It is settled law that concurrent findings of. facts, based on evidence, are not liable to be interfered in the exercise of jurisdiction under section 115, Cr.P.C. Reliance is placed on Abdul Rahim and another v. Mst. Janatay Bibi and others (2000 SCMR 346), Anwar Zaman and 5 others v. Bahadur Sher and others (2000 SCMR 431), Aziz Ullah Khan and others v. Gul Muhammad Khan (2000 SCMR 1647), Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another (2000 SCMR 314), Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCMR 329), Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) and Muhammad Rashid Ahmad v. Muhammad Siddique (PLD 2002 SC 293).

9. In view of the above the present revision petition is devoid of merits, hence stands dismissed in limine. S.A.K./R-40/L Revision dismissed.