2014 PLP 1425 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Brief facts giving rise to this revision petition are that the respondent/plaintiff Rubina Shaheen had filed a suit for possession through pre-emption regarding the suit property which is fully mentioned in the plaint. The respondent/plaintiff pre-empted the sale in favour of the petitioners/ defendants regarding the suit property affected vide Mutation No.4732 dated 28-4-2004 against a consideration of Rs.45,

000. It is further alleged in the plaint that in fact petitioners/defendants had purchased the suit property against a consideration of Rs.30,000, but to deprive the plaintiff/respondent from exercising her lawful right, an exorbitant amount of Rs.45,000 as sale price was got entered in the said mutation. It is further narrated in the plaint that sale had been kept secret from the plaintiff/respondent, who came to know about the same on 6-5-2004 at 6.00 p.m. through her husband Shaukat Ali at her house and immediately she announced the intention to exercise her right of pre-emption in presence of Shaukat Ali and Muhammad Arif. It is also alleged in the plaint that the plaintiff-respondent had performed Talb-e-Ishhad by sending notice to the defendants-petitioners through registered post.

2. The suit was contested by the petitioners/defendants by filing their written statement. The petitioners/defendants alleged that neither the Talb-e-Muwathibat had been performed by the plaintiff/respondent nor any notice of Talb-e-Ishhad was delivered to them. The factual area of dispute is reflected in the issues framed by learned trial court and for brevity sake only pivotal Issue No.5 is reproduced hereunder:

"Whether the plaintiff has fulfilled the requiste Talbs in accordance with law? OPP"

4. The learned trial Court after recording evidence of the parties dismissed the suit vide the judgment and decree dated 13-4-2010. The respondent/plaintiff filed an appeal, which was heard by Mr. Abul Hasnat Muhammad Zulqarnain, Additional District Judge, Chakwal, who vide the judgment and decree dated 10-6-2010 accepted the appeal and decreed the suit filed by the respondent/plaintiff. Feeling dissatisfied, with the latter judgment and decree, the petitioners/ defendants have come up with the instant revision petition before this court.

5. Today on call of the case, no one has appeared on behalf of the petitioners/defendants, whereas, Mr. Abdul Rashid Awan, Advocate, learned counsel for the respondent-plaintiff has addressed his arguments and supported the impugned judgment and decree dated 10-6-2010. He has argued that performance of Talbs is merely a technical affair and the basic requirement of law is whether the pre-emptor has superior right or not. He has further argued that the right of pre-emption has been determined in favour of the plaintiff/respondent by both the learned courts below.

6. With the assistance of the learned counsel for the respondent-plaintiff, the record of the suit has been perused. The relevant paragraph No.2 of the plaint filed by the respondent-plaintiff regarding the performance of Talbs for ready reference is reproduced hereunder:

7. On the other hand the petitioners/defendants had denied the alleged factum of performance of Talb-e--Muwathibat and Talb-e-Ishhad in para No.2 of their written statement. The onus of issue No.5 was on the respondent/plaintiff and to discharge the said onus, the she produced Muhammad Arif as P.W.1. It is important to note that Muhammad Arif PWI is the person in whose presence Talb-e-Muwathibat and Talb-e-Ishhad had been performed as alleged by the plaintiff in para No.2 of the plaint. The whole statement of Muhammad Arif (P.W.1) is of significant nature which is reproduced here:--

10. A perusal of the testimony of P.W.1 as reproduced above shows that P.W.1 did not utter a single word regarding the performance of Talb-e-Muwathibat by the respondents/plaintiffs. Furthermore, the said witness also showed his ignorance that any jumping demand had been performed or not by the plaintiff-respondent. He further stated that he was not aware where the said notice had been got scribed. Even alleged notice of Talb-e-Ishhad was not got exhibited in the statement of P.W.1 nor the plaintiff/respondent got declared the said witness hostile. The respondent/plaintiff is bound by the statement of her own witness. In the light of said statement of P.W.1, the performance of Talb-e-Muwathibat and Talb-e-Ishhad cannot declare to have been proved. The performance of Talb-e-Muwathibat is not a mere technicality viz-a-viz the superior right of pre-emption. The law is now clear that the very right of the pre-emption is not activated unless Talb-e-Muwathibat is performed. It should not be dubbed as a mere technicality, but at times it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of the pre-emption. The same is the verdict of the Hon'ble Supreme Court of Pakistan which has been rendered in a case reported as "Fazal Din through L.Rs. v. Muhammad Inayat through L.Rs." (2007 SCMR 1). The learned lower appellate court wrongly declared that performance of Talb-e-Muwathibat had been proved by the plaintiff/respondent by adducing cogent evidence. The evidence available on record has been viewed and it is clear that plaintiff/petitioner had failed to perform Talb-e-Muwathibat in accordance with law. If the contradictions appearing on the surface of record in the statements of P.Ws. are ignored, even then statement of P.W.1 Muhammad Arif is sufficient to dislodge the findings of the learned lower' appellate court to the extent of performance of Talb-e-Muwathibat by the plaintiff-respondent.

11. The averments of the plaint and the testimony of P.Ws. produced by the plaintiff/respondent are also silent about the delivery of alleged notice of Talb-e-Ishhad to the petitioners/defendants or they had ever received the same. The plaintiff-respondent also failed to produce Registry Booking Clerk of the concerned Post Office and relevant Postman to prove the of dispatch of notice Talb-e-Ishhad by the plaintiff-respondent and its delivery to the petitioners-defendants. To my mind, in order to succeed in the suit for pre-emption, it was imperative for the plaintiff to produce evidence including the Postman to prove that in fact notice had been served upon the petitioners-defendants. The respondent/plaintiff failed to perform the said job, which is fatal to her claim. The reliance can be placed on "2013 SCMR 866", "2013 YLR 2016" and "2007 SCMR 1105".

12. In the above perspective, it is found that the respondent's appeal was allowed in complete oblivion of the record of the case and the impugned judgment passed by the learned lower appellate court dated 10-6-2010 cannot sustain in the eyes of law, which is set aside by allowing this Civil Revision Petition and the suit filed by the respondent-plaintiff is dismissed with costs and the judgment and decree dated 13-4-2010 passed by learned trial Court is restored. AG/I-38/L