2017 PLP 38 (CLCN)

ALI AKBAR QURESHI, J.

No one has entered appearance on behalf of the respondents, even on the last two dates, no one appeared. They are proceeded against ex parte. Since the case relates to the year 2001, therefore, learned counsel for the petitioners was allowed to argue the case for its disposal. This civil revision is directed against the judgment and decree dated 05.11.2001, passed by the learned appellate court, whereby the learned appellate court accepted the appeal, set aside the judgment passed by the learned trial court, and decreed the suit filed by the respondent.

2. The necessary facts for the disposal of this petition as stated in the record are that, the respondents filed a suit for possession through pre-emption, pre-empting the sale of land measuring 143-Kanal and 15-Marlas (detail of which is given in the plaint), stating therein that one Muhammad Azhar Iqbal sold away the suit property on 08.02.1994, for consideration in favour of the petitioners, and by this way, the respondents have been deprived of the suit property, that the moment the sale came into knowledge of the respondents, they hurriedly announced the jumping demand/Talb-i- Muwathibat, to fulfill the requirement of Talb-i-Ishhad, notices were issued but the petitioners refused to accept the superior right being the co-sharer in the property, of the respondents.

3. The petitioners contested the suit through a written statement, challenging the averments of the plaint on legal as well as on factual side. The learned trial court framed as many as 10 issues, including issue No.8, which relates to the three Talbs as given in the law. The learned trial court recorded evidence and finally dismissed the suit, against which an appeal was filed, which was accepted and the suit was decreed in favour of the respondents. Learned counsel for the petitioner has questioned the validity of the judgment impugned herein on the grounds, that the respondents in the plaint, have not given the date, time and place, which is requirement of law; the detail of the notice and its date to fulfill the requirement of Talb-i-Ishhad is not given and respondents have failed to produce the truthful witnesses to prove the fact of Talb-i-Muwathibat and Talb-i-Ishhad, therefore, the learned appellate court, without looking into the record pointed out by the petitioners, accepted the appeal and decreed the suit which is against the record. Reliance is placed on case laws Fazal Din through L.Rs. v. Muhammad Anayat through L.Rs. (2007 SCMR 1), Bashir Ahmad v. Ghulam Rasool (2011 SCMR 762), Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911), Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others (2013 SCMR 178), Dilber Khan v. Muhammad Ashraf (PLD 2013 SC 171), Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193), Abaid Ullah Malik v. Additional District Judge, Mianwali and others (PLD 2013 SC 239), Muhammad Hayat v. Zafar Iqbal and others (2014 CLC 308), Khan Muhammad and another v. Muhammad Azam through L.Rs. and others (2014 CLC 438), Pervaiz Akhtar v. Muhammad Arif and 2 others (2014 CLC 940).

4. To appreciate the contention raised by learned counsel for the petitioners, the record was examined. The plaint filed by the respondents, to pre-empt the sale in question, is silent about the date, time and place. The respondents/plaintiffs in Para No.5, wherein the Talb-i-Muwathibat is mentioned, has not given the date, time and place, therefore, has failed to comply with the mandatory provision of law. The Hon'ble Supreme Court of Pakistan has observed in judgment cited as Abaid Ullah Malik v. Additional District Judge, Mianwali and others (PLD 2013 SC 239), and Dilber Khan v. Muhammad Ashraf (PLD 2013 SC 171), that without complying with the aforesaid requirement of law, the sale could not be questioned or challenged and the suit is not proceedable. Respondent even at the time of appearing in the witness box as PW-1 did not utter even a single word regarding the time, date and place, where the Talb-i-Muwathibat was announced and the issuance of the notice to fulfill the requirement of Talb-i-Ishhad, therefore, appreciating the record and keeping in view the law declared by the Hon'ble Supreme Court of Pakistan, it can safely be held that the respondents have failed to comply with and prove the Talb-i-Muwathibat. As regard Talb-i-Ishhad, firstly the respondents did not give the details of Talb-i- Ishhad and did not produce the postman to prove the service of the notice sent by the respondents. It is the requirement of law as ruled by the Hon'ble Supreme Court of Pakistan in a judgment cited as Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193), that in case, the defendant or vendee denied the service of the notice sent in connection with the Talb-i- Ishhad, the pre-emptor is bound to produce the postman, who served the notice upon the vendee. In this case, no such exercise has been undertaken by the respondents, therefore, by this way the respondents have miserably failed to prove the second mandatory requirement of law i.e. Talb-i-Ishhad.

5. The learned trial court, who recorded the evidence of the parties, rightly appreciated this aspect of the case and reached to a just conclusion that the respondents have failed to fulfill the requirement of Talb-i-Muwathibat and Talb-i-Ishhad, through any truthful and confidence inspiring evidence.

6. On the other hand, the learned appellate court, in a very casual manner, discussed the evidence and without perusing the record, particularly the plaint, filed by the respondents, decided the issue No.8 in favour of the respondents and finally decree the suit by accepting the appeal.

7. The other findings recorded by the learned appellate court are not so material to decide the fate of the case and even otherwise, the learned trial court after attending all the material rightly concluded that the respondents have failed to make out the case, therefore, the findings recorded by the learned appellate court are set aside and that of the trial court are affirmed.

8. Resultantly, this civil revision is accepted and in result thereof the suit filed by the respondents is dismissed. No orders as to costs. MM/M-67/L Revision accepted.