2017 PLP 98 (YLRN)

ALI AKBAR QURESHI, J.

The petitioner has challenge the validity and propriety of the judgment and decree dated 18.03.2016 and 30.04.2014, passed by the learned Courts below whereby the suit for possession through pre-emption filed by the petitioner, was dismissed.

2. As per record, the suit for possession through pre-emption filed by the petitioner/plaintiff, pre-empting the sale of the suit land was dismissed through the concurrent findings by the learned courts below on the following grounds:-- i. The petitioner could not prove Talb-i-Muwathibat through credible and trustworthy evidence. ii. There are material contradictions in the statement of the witnesses appeared on behalf of the petitioner to prove the Talb-i-Muwathibat and Talb-i-Ishhad. iii. While filing the written statement, the respondent/ defendant denied the service of notice and the petitioner failed to prove the postman of the concerned post office to prove the service of notice which is violative of the principle laid down by the Hon'ble Supreme Court of Pakistan. iv. The petitioner has also failed to produce the registered post acknowledgement due sent by the petitioner while sending the notice of Talb-i-Ishhad. v. The vendor is the real brother of the petitioner and as per record living in the same house; the land of the two brothers is adjacent, so the sale of the suit land was very much in the knowledge of the petitioner from the day first and further the possession was given to the respondent of the land by the vendor/real brother of the petitioner, therefore, the petitioner was precluded to file the suit.

3. Learned counsel for the petitioner although not denied, that the petitioner has failed to prove the Talb-i-Muwathibat by giving exact date, time and place and non-production of the postman as witness to prove the notice of Talb-i-Ishhad but submitted, that these are minor discrepancies which can be ignored as the petitioner had a preferential right to purchase the suit land. Further submitted, that the petitioner adduced reliable evidence and succeeded to prove his claim including Talb-i-Muwathibat and Talb-i-Ishhad, but the learned courts below have erred in law not to appreciate the aforesaid aspect of the case as required by law.

4. Heard. Record perused.

5. The record shows, that there are material contradictions in the statement of PW1, who is informer as he stated while appearing in the witness box, that the sale mutation came into his knowledge at 2:00 pm, when he was sitting along with his cousins in the baithak, whereas he stated in his cross-examination, that the petitioner was called in the baithak and he was informed about the sale at 2:00 p.m. It has rightly been observed by the learned courts below that when the informer (PW1) came to know about the impugned sale at 2:00 p.m., how it is possible that the same was conveyed to the plaintiff at the same time.

6. There is another aspect of the case, that the petitioner stated in the plaint about the meeting/majlis. The petitioner stated that he was sitting in front of the house of one Nusrat Iqbal, when impugned sale came to his knowledge. I am afraid, that the contentions raised by learned counsel for the petitioners during his arguments have any substance or force in view of the law laid down by the Hon'ble Supreme Court of Pakistan in a judgment cited as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), wherein it has been ruled, that the pre-emptor is required by law to prove the Talb-i-Muwathibat by giving correct date, time and place of making the Talb-i-Muwathibat.

7. As regard the Talb-i-Ishhad, admittedly, the service of notice of Talb-i-Ishhad was denied by the respondent in the written statement, therefore, as per law declared by the Hon'ble Supreme Court of Pakistan the petitioner was required to produce the postman of the concerned post office. Instead of producing the postman, the petitioner only produced a record keeper of post office which cannot fulfill the requirement of law. Further, the petitioner has also failed to place on record the acknowledgment due. In these circumstances, precisely it can conveniently be held that the petitioner has miserably failed to prove the mandatory requirement of Talb-i-Muwathibat and Talb-i-Ishhad, therefore, the petitioner is not entitled to pre-empt the impugned sale in the light of the law laid down by the Hon'ble Supreme Court of Pakistan in two celebrated judgments cited as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCMR 866). In these judgments, it has made mandatory and imperative upon the pre-emptor to produce postman of concerned post office to prove the service of notice of Talb-i-Ishhad, in case the vendee denies the service of notice in written statement. The relevant portion of the judgment supra (2013 SCMR 866) is reproduced as under:-- "As regards the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstand-ing any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two courts below." In view of the aforesaid law declared by Hon'ble Supreme Court of Pakistan, it can safely and conveniently be held that the petitioners have miserably failed to prove their case through any credible evidence.

8. Even otherwise the learned courts below have concurrently concluded that the petitioner has completely failed to prove the mandatory pre-requisite i.e. Talbs to pre-empt the sale in question. The learned counsel appearing on behalf of the petitioner also argued the case at length but could not point out any legal infirmity or irregularity with the concurrent conclusion rendered by the learned Courts below. I find support from the valuable judgments of the Hon'ble Supreme Court of Pakistan, titled "Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373), Ahmad Nawaz Khan v. Muhammad Jaffar Khan and others (2010 SCMR 984), Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another (2008 SCMR 428), and "Abdul Ghafoor and others v. Kallu and others" (2008 SCMR 452), that the High Court, in the case of concurrent findings, normally does not interfere unless the same is result of exercise of jurisdiction not vested in the learned courts below.

9. In view of the above, I see no reason to interfere with the concurrent findings rendered by the learned courts below. Resultantly, this petition is dismissed with no order as to cost. JK/A-80/L Petition dismissed.