2003 PLP 1775 (CLC)

(3) Whether the plaintiff has superior right of pre-emption qua the defendant regarding the disputed property? (4) Whether any notice under section 13(3) of the Punjab Pre emption Act was served upon the defendant by the plaintiff? OPP (5) Whether sum of Rs.50,000 was fixed in good faith and actually paid? OPD (6) If above issue is not proved what is the market value of the suit land? OPD (7) Relief.

5. In support of this suit, Amin-ud-Din plaintiff appeared as his own witness as P. W.1 while Manzoor Hussain and Ali Bhahadur witnesses of notice of Talb-i-Ishhad Exh.P.1. appeared as P.W.2 and P.W.3. Additionally copy of registered Haqdaran Zamin Exh.P.2, Postal receipt Exh.P.3, receipt of acknowledgment due Exh.P.4 and certified copy of the sale-deed Exh.P.5 was also produced.

6. On the other hand, Muhammad Azam, Special Attorney of the respondent appeared as D.W.1 and also tendered in evidence receipt of the District Council Exh.D.2 (under objection) copy of the registered sale-deeds Exhs.D.3 and D.4.

7. After appreciating the evidence on the record, the learned trial Court found that the petitioner/plaintiff fulfilled all the requirements of Talbs as prescribed by law. 'On the basis of Exh.P.2, copy of the registered Haqdaran Zamin for the year 1989-90 it was found that the plaintiff had a superior right of pre-emption. Consequently, the suit of plaintiff was decreed vide judgment and decree dated 24-1-1995.

8. The respondent preferred an appeal which was heard by a learned Additional District Judge, Gujar Khan. On reappraisal of evidence, the learned Appellate Court found that the petitioner/plaintiff had failed to prove the making of Talb-i-Muwathibat and that the solitary statement of the petitioner was not sufficient to prove the said fact. It was observed that non-production of Muhammad Nawaz Lumberdar who had allegedly informed the plaintiff of the factum of the sale and in whose presence the Talb-i-Muwathibat was allegedly made was fatal to the suit of the plaintiff. The learned Appellate Court also found the performance of Talb-i-Ishhad to be defective on the ground that the plaintiff had failed to depose that the witnesses of the notices were "truthful".

9. On the question of superior right of pre-emption however, the learned Appellate Court did not disagree with the findings of the trial Court. On the basis of its findings upon non-performance of Talbs, the appeal was accepted vide judgment and decree dated 7-5-1996 with the result that the suit of the petitioner/plaintiff stood dismissed.

10. Raja Muhammad Hanif Satti, Advocate for the petitioner contended that the learned Appellate Court has seriously erred in non- suiting the petitioner on the grounds that Talb-i-Muwathibat and Talb-i -Ishhad were not proved. The learned counsel placed reliance upon the rule laid down in Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 to contend that the law does not require the mention of the particulars of Talb-i-Muwathibat such as date, time place and the names of the persons in whose presence the Talb was made to be mentioned in the plaint. To the same effect the learned counsel relied upon the case of Altaf Hussain v. Abdul Hameed 2000 SCMR 314.

11. It was urged that in the peculiar circumstances of the case it was explained why Muhammad Nawaz, Lumberdar who had informed the petitioner regarding the sale and in whose presence the petitioner had made the Talb-i-Muwathibat could not be produced as the said person was himself an attesting witness of the sale-deed and that it would have been futile to produce this witness. He submitted that in such situation the solitary statement of the plaintiff was sufficient to prove Talb-i- Muwathibat.

12. Regarding Talb-i-Ishhad, it was contended that there was cogent evidence on the record which comprised of the statement of the petitioner as P.W.1 and the two witnesses of the notice of Talb-i-Ishhad, namely Manzoor Hussain and Ali Bahadhur who proved the Talb-i-Ishhad through their statements made on oath. It was urged that it was inconsequential that the said two witnesses were not described as truthful in the statements recorded by the said witnesses.

13. Conversely Syed Qalab-e-Hassan, Advocate for the respondent contended that the petitioner had named Muhammad Nawaz Lumberdar who had allegedly informed the plaintiff of the sale allegedly on 16-8-1992 and in whose presence he made the Talb-i-Muwathibat. The failure to produce the said Muhammad Nawaz as a witness was fatal to the case of the petitioner as the solitary statement of the plaintiff was not sufficient to prove the making of the said Tabs. Reliance was placed upon the case of Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 235, wherein, it was held that failure to produce the witness in whose presence Talb-i-Muwathibat was made although his name was mentioned in the plaint was fatal to the suit for pie-emption. In that case the trial Court had decreed the suit on the solitary statement of the pre-emptor regarding the making of Talb-i-Muwathibat however, the Appellate Court found the solitary statement to be not sufficient and dismissed the suit. This finding was affirmed by the High Court which was upheld by the Honourable Supreme Court on appeal.

14. Commenting upon the reason advanced by the petitioner for non -production of the said witness, the learned counsel for the respondent submitted that reason so advanced was superficial and frivolous. According to him it made no difference if the said witness was also an attesting witness of the sale-deed itself.

15. The learned counsel further referred to the case of Sana Ullah Khan v. Hassan Khan and another 1999 CLC 1735 and Muhammad Anwar and 12 others v. Mahmooda Begum and 5 others 1998 CLC 1190 where the non-production of the witness in whose presence Talb-i-Muwathibat was made was treated as fatal to the case of the pre-emptor.

16. Arguments have been heard and record perused.

17. The petitioner in his plaint had specifically mentioned that he was informed of the sale by one Muhammad Nawaz, Lumberdar, Chak Daulat on 16-8-1992 and that he made the Talb-i-Muwathibat there and then in presence of the said Muhammad Nawaz. In order to prove the performance of Talbs the petitioner was content in appearing himself as his 6wn witness as P.W.1. The said Muhammad Nawaz was not produced as a witness to support the plea of the performance of Talb-i-Muwathibat. It has been enunciated by the Honourable Supreme Court in the case of Muhammad Mal Khan (supra) that where the pre-emptor states to have made the Talb-i-Muwathibat in presence of a particular person (Muhammad Nawaz Lumberdar in the instant case) the failure to produce such witness was fatal. In the present case, the plaintiff has not mentioned any reason in his statement as P.W.1 as to why he was unable to produce the said witness. Although during the course of arguments, the learned counsel A for the petitioner stated that Muhammad Nawaz was an attesting witness of the sale-deed itself and it was for this reason that Muhammad Nawaz was not produced as a witness, this submission is belied by P.W.1 himself when he states that:-- In view of this, the solitary statement recorded as P.W.1 is not sufficient 4o prove the Talb-i-Muwathibat. I am however, in agreement with the contention made by the learned counsel for the petitioner that Talb-i -Ishhad could not have been rejected on the ground that the witnesses who signed the notice of the said Talab were not actually described as truthful witnesses by the petitioner. The findings of the learned Appellate Court in this regard does not appear to have any support of law. Whenever witness makes a statement on oath, his statement is to be recorded as that of a truthful witness unless contrary is proved through cross- examination or any other evidence in rebuttal. To the extent of the findings relating to Talb-e-Ishhad the reasoning put forth by the learned Appellate Court are not approved.

18. The upshot of the above discussion, is that on account of the failure to prove Talb-i-Muwathibat the plaintiff/petitioner must fail. Resultantly, there is no merit in this civil revision which 'is hereby dismissed. Parties to bear their own costs. M.H./A-834/L Petition dismissed.