1996 PLP 623 (CLC)

Evidenced through Mutation No. 790 dated 26‑10‑1991 Manzoor Hussain, Allah Yar and Muhammad Ramzan purchased the suit property comprising an area of 7 Kanals 4 Marlas of land. Claiming to be the co‑sharers Band Sharik, Khaal Sharik, Passage Sharik and enjoying other facilities both Mst. Salma and Mst. Naziran daughters of Karam Din/petitioners‑plaintiffs instituted their suit to pre‑empt the said sale with the assertion that the land was their ' Zarorat' and that the respondents were responsible for ' Zarar' to them. They contended that when they came to know about the sale under pre‑emption they proclaimed that they would exercise their right and that in the presence of Nazir Ahmad and Abdul Shakoor P.Ws. they offered an amount of Rs. 80,000 to the vendees as the sale price who did not agree. They asserted that they issued the written notice to the respondents‑defendants who have failed to admit their rights in spite of the compliance of ' Talb‑i‑Muwathibat' and ' Talb‑i‑Ishhad' and thus they could institute the suit i.e. they could exercise 'Talb‑i‑Khushmat'. They maintained that the sale price of Rs. 1,30,000 as mentioned in the mutation was false and fictitious which was got entered to scare away the pre‑emptors and that the amount of Rs.80,000 was fixed and paid which was the market value of the suit land. They asserted that the respondents‑defendants could not defeat their superior pre‑emptive right. The suit was vehemently resisted by the respondents‑defendants who denied the superior pre‑emptive right of the petitioners as well as the alleged plea about the demand of pre‑emption. They denied ' Talb‑i‑Muwathibat' and ' Talb‑i‑Ishhad' . They contended that they paid Rs.1,30,000 as the sale price of the suit land. They maintained that they had affected improvements on the suit land and that even the pre‑emptors had waived their right of pre‑emption, if any, who were estopped to institute the suit.

2. According to the pleadings of the parties following issues were framed:‑‑ (1) Whether the plaintiffs have got no cause of action? OPD (2) Whether the suit is not maintainable in its present form? OPD. (3), Whether the plaintiffs waived their pre‑emptive right? OPD. (4) Whether the plaintiffs are estopped to bring the present suit? OPD. (5) Whether the defendants made improvements upon the suit land, if so, of that value? OPD. (6) Whether the sale price of the suit land was fixed at Rs.1,30,000 in good faith and actually paid? OPD. (7) If issue No. 6 is not proved then what was the market value of the suit land at the time of sale in question? OP Parties. (8) Whether the plaintiffs made Talbs in accordance with law? OPP. ‑ (9) Whether the plaintiffs have got better right to pre‑empt the sale in dispute? OPP. (10) Whether the plaintiffs are entitled to decree for possession through pre emption prayed for? OPD. (11) Relief. Muhammad Ramzan P.W.1 is the husband of Mst. Salina pre‑emptor and ' Behnoi' of Mst. Naziran pre‑emptor. He produced the Special Power of Attorney ERh.Pl. He stated that he was present at the Saw Machine of Mistri Nazeer when Manzoor Hussain vendee informed Nazir Ahmad that he purchased the land and that on that he (P.W.l) stated that he proclaimed that he would institute a suit for possession by pre‑emption. He added that Nazir Ahmad and Abdul Shakoor P.Ws. were present at that time. He continued that thereafter alongwith Nazir Ahmad and Abdul Shakoor P.Ws. and the plaintiffs he went to the house of the defendants and asked them to give the land to them in lieu of the amount but they refused. He added that thereafter they went to the Tehsil and notice was sent. In his cross‑examination he stated that when he heard for the first time about the sale under pre‑emption he was not the attorney of the pre‑emptors. Nazir Ahmad P.W.2 and Abdul. Shakoor P.W. 3 corroborated Muhammad Ramzan in the matter. In rebuttal Manzoor Hussain vendee -defendant appeared as D. W.1 and stated that no ' Talb' was made. After hearing the parties learned trial Court held that the pre‑emptors had superior pre‑emptive right who had not waived the same and there was no question of attraction of estoppel. It was further held that the suit land was sold for Rs. 1,30,

000. It was held that the pre‑emptors had established the existence of ' Talb‑i‑Muwathibat' and .' Talb‑i‑Ishhad' who were entitled to ' Talb‑i‑Khushmat' Consequently the suit was decreed in the sum of Rs.1,30,

000. The respondents‑vendee‑defendant preferred their appeal. The lower Appellate Court held that ' Talb‑i‑Muwathibat' and ' Talb‑i‑Ishhad' were not proved. It was held that Muhammad Ramzan P. W.1 was not competent to proclaim ' Talb‑i‑Muwathibat' on behalf of his wife and her sister. It was also held that ' Talb‑i‑Ishhad' was not established. Consequently by expressing that due to the non‑proof of ' Talb‑i‑Muwathibat' and ' Talb‑i‑Ishhad' the right of pre‑emption of the pre‑emptors stood extinguished, the lower Appellate Court accepted the appeal, set aside the judgment and decree passed by the trial Court and dismissed the suit. Hence this revision petition.

3. I have heard the preliminary arguments. The main contention of the learned counsel for the petitioner is that Muhammad Ramzan P.W.1 was the attorney of the petitioners who was also the husband of Mst. Salma pre‑emptor and thus ' Talb‑i‑Muwathibat' was legally established as he proclaimed that the land purchased by the respondents‑vendees‑defendants would be purchased by him. I do not agree with him. The evidence produced by the pre‑emptors has contradicted their assertion raised in para. 5 of the plaint according to which on coming to know about the sale under pre‑emption they (both the pre‑emptors) immediately proclaimed that they would institute a suit for possession by pre emption. Both the pre‑emptors did not figure in the witness‑box to assert and establish this aspect of the matter and an adverse presumption can easily be drawn against them. I pass an order accordingly. The fact of the matter is that both Mst. Salina and Mst. Naziran petitioners/pre‑emptors did not make ' Talb‑I- Muwathibat' as agitated by them. The statements of the P.Ws. in the matter are nothing enough. ' Talb‑i‑Muwathibat' made by Muhammad Ramzam husband of Mst. Salma and ' Behnoi' of Mst. Naziran has no legal force. It is in the cross -examination of the said Muhammad Ramzan that when ' Talb‑i‑Muwathibat' was made by him he was not the Special Attorney of both the pre‑emptors. According to Explanation I to subsection (1). of section 13 of Punjab Pre emption Act, 1991 ' Talb‑i‑Muwathibat' means immediate demand by a pre emptor in the sitting or meeting (Majlis) in which he has come to know of the B sale declaring his intention to exercise the right of pre‑emption. There is no provision in the Punjab Pre‑emption Act, 1991 that a husband or a 'Behnoi', on behalf of the female pre‑emptor, is entitled to make ' Talb‑i‑Muwathibat'. In the eyes of, law the person includes a male and a female. In the scheme of Punjab Pre‑emption Act, 1991 no distinction has been made between the male and female in the matter of exercise of right of pre‑emption starting from ' Talb‑i Muwathibat' to ' Talb‑i‑Khushmat' . The women in the country are demanding the equal rights on merits and no exception can be granted/allowed towards the enforcement of any statutory/legal right. As such within the purview of section 13 of the Punjab Pre‑emption Act, 1991 it was incumbent upon both Mst. Salma and Mst. Naziran pre‑emptors to establish that they made the demand of pre emption in the sitting or meeting (Majlis) in which they. had come to know of the sale. This being the factual and legal position the matter which emerges is that ' Talb‑i‑Muwathibat' has not been established by both Mst. Salma and Mst. Naziran pre‑emptors. There was no question to further look into ' Talb‑i -Ishhad. In the circumstances I hold that the superior pre‑emptive right of the petitioners stood extinguished due to the lethargy on their part. They are responsible for the creation of the present situation and are not entitled to get the proposed relief. The learned lower Appellate Court has correctly accepted the appeal and dismissed the suit instituted by the pre‑emptors.

4. Finding no force in this revision petition I dismiss the same in limine C.M. 1‑C/95. This application for the grant of stay order has become infructuous in view of the dismissal of the original revision petition in, limine and the same also stands disposed of. H.B.T./S‑483/L Revision dismissed.