2011 SCMR 1545 (PLP)

GHULAM RABBANI, J.

This appeal with leave of the court is directed against judgment dated 23-9-2003 passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, whereby Civil. Revision No. 510-D of 1997 filed by the respondent Israr Ahmad was allowed.

2. On 6-4-1994, the respondent Israr Ahmad instituted before the Civil Judge Attock a suit against Ghafoor Khan (now dead-represented through legal heirs) for possession through pre-emption in respect of land admeasuring 7-1/2 marlas situated in Village Taja Baja, Tehsil and District Attock, claiming superior right of pre-emption as co-sharer in the suit property. The defendant contested the suit which was dismissed vide judgment/decree dated 17-2-1997 by Civil Judge 1st Class Attock. Against the said judgment/decree, the appeal of respondent/ plaintiff before the District Judge, Attock was also dismissed vide judgment/ decree dated 28-7-1997. Feeling aggrieved, the respondent/ plaintiff approached the High Court by way of civil revision which was allowed and the judgments and decrees of two courts, below were set aside vide judgment impugned herein.

3. Learned counsel for the appellant contended that learned Single Judge of the Lahore High Court erred in law and facts in reversing the concurrent finding of facts rendered by both the Courts below under Issue No.1 to the effect that Talabs were not made by the respondent/ plaintiff as per requirement of law; that in the plaint though date of knowledge was mentioned but time and place remained missing which was an essential element to prove the Talabs; that both the Lower as well as Appellate Courts noted in their findings that the sale took place on 7-3-1994 and the respondent/plaintiff claimed that he gained knowledge of the sale on 26-3-1994 through his brother Ibrar Ahmed but did not produce him as a witness to prove this fact as well as making of Talbs; that there was conflict in evidence of the P.Ws. and the plaintiff with regard to making of Talb-i-Ishhad by way of notice (Exh.D/1) which on the face of it appeared doubtful; that the impugned judgment of the High Court was based on misreading, non-reading and erroneous appreciation of evidence, therefore, was sustainable in law.

4. On the other hand learned counsel for the respondent submitted that judgments of the Lower as well as of the Appellate Courts were based on misreading and non-reading of evidence particularly the finding on Issue No. l was not correct, therefore, learned Single Judge was justified in reversing the concurrent findings of two courts below in exercise of his revisional jurisdiction.

5. In the light of above submissions of both the learned counsel, we have gone through the material made available before us. In para No.2 of the plaint, the plaintiff/respondent stated that he came to know about the sale of land on 26-3-1994 through his brother in presence of witnesses Azizur Rehman (P. W.1) and Ahmed Afzalullah (P.W.2); made jumping demand in their presence, then took the witnesses to the defendant/vendee requesting him to transfer the land to him and gave notice. Thus, according to him, he fulfilled all the requisites. The plaintiff/respondent however, failed to mention in the plaint the time and place of making Talb-i-Muwathibat so also' failed to mention the date on which he took the witnesses to the vendee/respondent and sent notice of Talb-i-Ishhad within terms of section 13(3) of the Punjab Pre-emption Act 1991, which provides as follows:- "13. . (3) Where a pre-emptor has made Talb-e-Mawathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption;" It is by now well settled that non-mentioning the place, date and time of Talb-i-Muwathibat and date of issuing the notice of Talb-i-Ishhad, in terms of section 13 of the Pre-emption Act, is fatal towards maintainability of a suit for pre-emption. In this, we are supported by the case of Man Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) in which it was observed that: "Subsequently, a number of judgments were delivered including in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), wherein it was held that furnishing the date and time and place in the plaint is necessary to establish the performance of Talb-i-Muwathibat. Therefore, we endorse the view taken in the judgments and approve that a plaint wherein the date, place and time of Talb-i-Muwathibat and date of issuing' the notice of performance of Talb-i-Ishhad in terms of section 13 of the Act is not provided it would be fatal for the pre-emption suit." The above view has been reiterated in another judgment delivered by this Court in the case of Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), wherein, it was held that "According to the dictum laid down by the larger bench of this court mentioned above, the requirement of Talbs with requisite details in the plaint is also essential even in the pending case." This Court in another case titled as Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) has also upheld the order of dismissal of the suit, wherein the petitioner/plaintiff had though mentioned the date and place in the plaint but omitted to state the time of making the Talb-i-Muwathibat. In the circumstances, on this score alone the suit of the plaintiff was liable to be dismissed.

6. Coming to the merits of the case it may be stated that a pre-emptor before instituting his claim for relief, has to satisfy the judicial mind of Court that he had made Talbs as prescribed by the law. After making first Talb in presence of two witnesses the pre-emptor has to make Talb-e-Ishhad by sending, not later than two weeks from the date of knowledge of sale, a notice in writing attested by two truthful witnesses as is envisaged under subsection (3) of section 13 of the Act ibid reproduced hereinabove. In this matter, the case of the respondent/plaintiff is that he made Talb-i-Muwathibat in presence of Aziz-ur-Rehman, Ahmad Afzalullah and his real brother Abrar Ahmed on having received on 26-3-1994 information about sale of land in question from his said brother. The respondent/plaintiff has also stated that he sent to the vendee the requisite notice signed by him and the afore-noted three persons. Thus, to prove his case, the best witness for the respondent/plaintiff beside any other witness, was his own brother Abrar Ahmed, who was not only the witness of both Talbs but a person from whom the respondent/plaintiff acquired knowledge about sale of land in question. During trial, however, the respondent/plaintiff preferred not to examine him as witness; albeit examined other two persons, namely, Aziz-ur-Rehman (P.W.1) and Ahmed Afzalullah (P.W.2) who also happened to be his maternal cousin. It is well settled that non-examination of a witness like the informer and witness of both Talbs, raises a presumption that the pre-emptor feared that if examined, either the witness would not have supported him or the witness could not stand the test of cross-examination. In this, it shall be useful to refer to the case of Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 235). Avoidance to examine Abrar Ahmed being such an important witness, who was none-else than pre-emptors' real brother, therefore, safely stated, puts a question mark on the case of respondent/plaintiff.

7. On scanning the evidence adduced by the respondent/plaintiff, herein below, we refer to some of conflicting statements made by him and his witnesses in regard to the notice (Exh.D/1) which relates to making of Talb-i-Ishhad. Respondent/Plaintiff appeared as P.W.3 and stated:-- P.W.2 Muhammad Afzalullah stated: P.W.1 Aziz ur Rehman stated: P.W.2 Muhammad Afzalullah stated:

8. Normally, in every legal proceeding, every witness speaking in support of the party needs to be truthful to place implicit reliance on his testimony. In pre-emption case, however, much stress has been laid on truthfulness of the witnesses of Talb-i-Ishhad. Reference is made to the provision of subsection (3) of section 13 of Act ibid reproduced hereinabove. On going through the conflicting statements of pre-emptor and his witness reproduced hereinabove, it becomes hard to consider them truthful to place reliance on their testimony in regard to making of Talb-i-Ishhad.

9. Be that as it may, the respondent/plaintiff claimed to have made Talb-i-Ishhad by sending notice (Exh. D/1), however, the trial Court did not accept this document as a reliable piece of evidence. While determining the relevant issue, "whether plaintiff (herein respondent) fulfilled requirement of Talbs" learned trial Court expressed, serious doubts by observing that "the plaintiff has thus failed to prove through reliable evidence that he fulfilled the requirement of the demands according to the provided of section 13 of the Punjab Pre-emption Act. The issue is decided against the plaintiff". On appeal preferred by the respondent, the Appellate Court having discussed the issue at length and took the same view by observing as follows: "The out-come of the above discussion is that the trial Court has correctly appreciated the evidence and thus it is apparent that the pre-emption has failed to make necessary Talbs as required by law".

10. We have also examined the document (Exh.D/1) and find, moreso, in view of the circumstances stated hereinabove, that both the Courts below are not incorrect in their findings. Thus, having discussed the matter as above, we are of the confirmed view that the respondent/ plaintiff could not establish his case for award of decree of possession on the basis of pre-emption.

11. In view of the foregoing, this appeal is allowed, the impugned judgment is set aside whereas the judgments and decrees of the two courts below dismissing the suit of the respondents are restored with no order as to costs. M.H./G-12/SC Appeal allowed.