1998 PLP 292 (MLD)

Civil Revision No. 1656/D of 1995, decided on 18th October, 1995.

S. 13

Civil Procedure Code (V of 1908), S. 115

Suit for pre-emption-- Plaintiff had failed to establish that he had made Talb-i-Muwathibat in the sitting or meeting in which he had come to know of sale in question and that he declared his intention to exercise right of pre-emption

Talb-i-Muwathibat was, thus, not established

No postal receipt had been adduced in evidence to draw presumption that statutory notice of Talb-i-Ishhad had reached its addressee (defendant)

Even no postman had been produced

Nothing was available on record to make out that postal facility was not available in area in question

Talb-i-Ishhad having not been proved by plaintiff, he could not exercise right of Talb-i-Khusumat and, thus, he could not institute suit for pre-emption-- Plaintiff's right of pre-emption, if any, stood extinguished keeping in view penal provisions contained in S.13, Punjab Pre-emption Act, 1991. Ghulam Nabi Bhatti for Petitioner. Through Mutation No. 113 dated 31-8-1992 Ghulam Murtaza respondent-defendant -vendee purchased the suit property comprising an area of 64 Kanals situated in village Dharma Tehsil Chunian, District Kasur from Mst. Safia Bibi in consideration for an amount of Rs.40,

000. Claiming to be a co- sharer in the Khata in which the suit property is situated and expressing that his land and the suit land were contiguous which were being irrigated from the same watercourse which qualifications were not being enjoyed by Ghulam Murtaza respondent-defendant; Muhammad Rafiq petitioner-plaintiff instituted a suit to pre-empt the said sale. He contended that he came to know about the factum of sale when he made the demand of pre-emption through Talb-i-Muwathibat and thereafter made a Talb-i-Ishhad by sending the statutory notice to Ghulam Murtaza defendant-respondent in the presence of Muhammad Hussain and Chirag Din P. Ws. He maintained that the land in dispute was required by him for his own 'Zaroorat' and the same would be a source of 'Zarar' if the same would remain with respondent-defendant. The respondent-defendant was served through substituted service through proclamation of notice in daily 'Nawa-i Waqt' Lahore. He did not appear and ex parte proceedings were initiated against him. In the ex parte evidence of the petitioner-plaintiff Ch. Bashir Ahmad, Advocate P. W.1 proved statutory notice Exh.P-1 about the exercise of Talb-i Ishhad. Husain Muhammad alias Muhammad Hussain P.W.2 and Chirag Din P.W. stated that they were present in the Dera of Muhammad Rafiq pre-emptor where they were intimated that Mst. Safia Bibi had made the sale of her property in favour of Ghulam Murtaza and that he would purchase the same. They added that on the next day alongwith Muhammad Rafiq pre-emptor they went to the house of Ghulam Murtaza defendant who refused to sell the property to the pre emptor and that thereafter the notice Exh.P1 was sent to the vendor through Ch. Bashir Ahmad, Advocate. Muhammad Rafiq pre-emptor appeared as P.W.4 who stated that he came to know about the sale under pre-emption and that in the presence of Hussain Muhammad alias Muhammad Hussain and Chirag Din P.Ws. he made the immediate demand to get the property. He added that on the next day he went to the defendant-vendee in the company of the aforesaid P.Ws. and expressed his desire to get the land who refused and that thereafter, the notice was sent by him through Ch. Bashir Ahmad Advocate. After hearing the parties the trial Court held that the petitioner has failed to establish the factum of Talb-i-Muwathibat especially when the P.Ws. were not knowing about the time when the plaintiff for the first time came to know about the sale. The suit was dismissed. Appeal was preferred which was resisted by the respondent defendant. The learned lower Appellate Court held that Talb-i-Muwathibat was not proved and dismissed the appeal. Hence this revision petition.

2. I have heard the preliminary arguments addressed by the learned counsel for the petitioner. It is admitted by the learned counsel for the petitioner/pre-emptor that section 13 of the Punjab Pre-emption Act 1991 is applicable to the present matter and without Talb-i-Muwathibat and thereafter within a period of two weeks Talb-i-Ishhad the suit cannot be instituted. I express my inability to agree with the learned counsel for the petitioner who canvassed before me that the evidence has not been properly appreciated. In explanation I to subsection (1) -of section 13 of the Punjab Pre-emption Act, 1991 it is narrated that 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 sale, declaring his intention to exercise the right of pre-emption. In para. No.4 it is averred that Talb-i-Muwathibat and Talb-i-Ishhad were made by the petitioner/pre-emptor. About Talb-i-Ishhad it is mentioned that Hussain Muhammad alias Muhammad Hussain and Chirag Din P.Ws. were present when the statutory notice was sent to the vendee-defendant. However, about the initial Talb i.e. Talb-i-Muwathibat it is not mentioned as to in whose presence or in whose sitting or meeting (Majlis) this demand was made. The statements of P.Ws.2 to P.W.4 in this respect (about Talb-i-Muwathibat) are held to be afterthought and without legal force which need not be relied upon. Thus, the petitioner has failed to establish that he made Talb-i-Muwathibat in the sitting or meeting (Majlis) in which he had come to know of the sale and there he declared his intention to exercise the right of pre-emption. In this case Talb-i-Muwathibat is not established. If Talb-i-Ishhad shall have to be considered it has also not been established. Mere notice Exh.P-1 is nothing enough in the matter. Its receipt by the respondent-defendant had to be established. No postal receipt has been adduced in evidence to make me draw the presumption that the statutory notice of Talb-i-Ishhad reached its addressee i.e. Ghulam Murtaza respondent defendant. Even no postman has been produced. There is nothing on record to make out that the postal facility was not available in the village of Ghulam Murtaza respondent-defendant and rather it is not the case/stand of the pre emptor. Thus, Talb-i-Ishhad has also not been proved by the petitioner who cannot exercise the right of Talb-i-Khushumat i.e. he cannot institute the suit. His right of pre-emption, if any, stands extinguished keeping in view the penal provision contained in section 13 of the Punjab Pre-emption Act, 1991. The only irresistible conclusion which can be drawn from the aforesaid aspect of the matter and discussion would be that this revision petition cannot be admitted fore regular hearing.

3. Consequently I dismiss this revision in limine A.A./M-504/L Revision dismissed.