2000 PLP 1067 (CLC)

This petition under section 115 of Code of Civil Procedure arises out of suit for possession through pre‑emption filed by the petitioner seeking to pre‑empt the sale of agricultural land through registered sale‑deed, dated 30‑6‑1990 by his, brother Rehmat Ali. The suit was contested by the respondent on various pleas inter alia that the petitioner had failed to make Talabs as required by law. The pleadings of the parties gave rise to the following issues:‑‑ (i) Whether the plaintiff has no cause of action? OPD (ii) Whether the suit has been incorrectly valued for the purpose of court‑fee and jurisdiction? OPD (iii) Whether the suit is for partial pre‑emption and is liable to be dismissed? OPD (iv) Whether the plaintiff is estopped by his own words and conduct to file the present suit? OPD (v) Whether the ostensible sale price was fixed and paid in good faith? OP. Parties (vi) Whether the prerequisite conditions have been fulfilled? OPP (vii) Whether the plaintiff has superior right qua the defendant? OPP (viii) Relief.

2. In support of his claim the petitioner examined three witnesses and himself appeared as P.W.4 while the evidence of the respondent comprises of the statement of one witness and respondent himself.

3. The suit of the plaintiff was decreed by the trial Court 'on 28‑10‑1992. Aggrieved the respondent went in appeal which was heard. by Additional District Judge, Gujranwala who on 15‑5‑1995 reversed the finding of the trial Court on Issue No.6 and as a consequence thereof dismissed the suit of the petitioner.

4. Learned counsel for the petitioner has contended that the Additional District Judge was in error in holding that the Talb‑i‑Muwathibat has not been made by the petitioner at the due time. There is no merit in this contention of the learned counsel. According to the case of the petitioner as set out in the plaint he had come to know of the sale about 11 days before the suit was filed. The suit was instituted on 21‑10‑1990 and as such according to the averments made in para.4 of the plaint the petitioner came to know of the sale on 10‑10‑1990. In para. 5 of the plaint it is stated that the plaintiff had proclaimed his intention to pre‑empt the sale in the Majlis of 14‑10‑1990. According to section 13 of Punjab Pre‑emption Act, 1991 the first Talb‑i‑Muwathibat has to be made immediately on gaining knowledge of the sale. According to own showing of the plaintiff there is a delay of 4 days in making Talb‑i‑Muathibat which is fatal to the case of the petitioner.

5. Furthermore, while appearing as his own witness as P.W.4 the plaintiff had stated that he was informed by Muhammad Sadiq and Muhammad Sharif that his brother has sold the land and that he went to the defendant and asked him to transfer the land on receipt of Rs.15,

000. However, as the plaintiff had learnt of the sale from Muhammad Sadiq and Muhpmmad Sharif he should have immediately at that lime declared that he intended to pre‑empt the sale. But instead of doing so he went to Abdul 8 Ghaffar defendant and demanded the return of the property. Failure to assert his right of pre‑emption at the time when he gained knowledge from Muhammad Sadiq and Muhammad Sharif clearly resulted in extinguishment of the right of pre‑emption vesting in the petitioner. In Zafar Ali v. Zainul Abidin 1992 SCMR 1886 the Supreme Court of Pakistan was pleased to observe that on learning about the sale the plaintiff would immediately without any delay declare that he would exercise the' right of pre‑emption against the sale. Such declaration is to be made before the dispersal of Majlis in which the plaintiff gained knowledge of the sale. In the precedent case the plaintiff came, to know of the sale on 12/13 of August, 1988 but Talb‑i- Muwathibat was made on 16‑8‑1988. This delay was treated as fatal and the suit of the plaintiff in that case was dismissed on that ground. Learned counsel for the petitioner, however, relied upon Arif Hussain v. Abdul Qayyum Khan 1996 CLC 902 in which it has been held that no specific words are necessary to express the intention to pre‑empt the sale. There is no cavil to this proposition but it has hardly any application to the facts of the present case inasmuch as the question involved in this case is not about the manner in which the intention was to be expressed but the time at which declaration of intent to pre‑empt the sale had to be made. For the reasons aforesaid, this petition is dismissed leaving the parties to bear their own costs. Q.M.H./M.A.K./N‑13/L Petition dismissed.