1995 PLP 1689 (MLD)

IHSAN‑UL‑HAQ CHAUDHARY, J.‑‑‑The relevant facts leading to this appeal are that the respondents purchased land measuring 154 Kanals 7 Marlas situated in Mauza Gobind Pur Bahmni, Tehsil and District Sahiwal, for a total consideration of Rs.12,54,094 through registered sale‑deed dated 20‑8‑1991 Exh.D

2. The appellants filed a suit on 17‑11‑1991 to pre‑empt ?this sale. They claimed that they have a superior right of pre‑emption being co?-sharers, having common passage and common watercourse with the vendors. The respondents appeared and resisted the suit on legal as well as factual plane. The trial Court accordingly framed following issues:‑‑‑ (1) Whether the plaintiffs have got superior right of pre‑emption qua the vendees? OPP (2) Whether the ostensible sale price was fixed in good faith or actually paid? OPP (3) What is the market value of the suit property? OPP (4) Whether the suit land has been pre‑empted for Zaroorat or to avoid Zarar? OPP (5) Whether the prerequisites of demand/Talabs had been made in accordance with law? OPP (6) Whether the plaintiffs by their conduct had waived their right of pre?-emption? OPD (7) Whether the vendees have incurred any other expenses apart from the sale price on the registration of sale, if so, how much and with what effect? OPD (8) Whether the notice required under section 31 of Punjab Pre‑emption Act was not issued and what is the effect of the same on the vendees? OP Parties. (9) Relief. The appellants in order to prove their claim examined Khushi Muhammad as P.W.1, Kamal Khan as P.W.2, Munir Ahmad, Patwari as P.W.3, Muhammad Amin as P.W.4 and Lakha as P.W.5 while appellant No.4 appeared as P.W.6. On the other hand respondent No.3 appeared as D.W.1. The parties also produced documentary evidence. The trial Court after hearing the arguments held that the appellants have a superior right of pre‑emption while the price of Rs.12,54,094 was fixed in good faith and actually paid but the other main issue No.5 as to the Talabs was decided against the appellants and as a result thereof the suit was dismissed vide judgment and decree dated 21‑12‑1993. Hence present appeal, which was admitted to hearing and notices were issued to the respondents, who have appeared and contested the appeal.

2. The learned counsel for the appellants argued that on issue 2 there was no evidence except statement of respondent No.3, therefore, trial Court wrongly held that issue has been proved while in respect of issue 5 it was argued that Talb‑i‑Muwathibat and Talb‑i‑Ishhad were proved by the statements of P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6. It is added that under section 13(3) of the Punjab Pre‑emption Act, 1991 (hereinafter to be referred to as Act of 1991), it was the duty of the plaintiff to send a notice under registered cover, acknowledgment due but its service was not their responsibility. It is added that there is a presumption that notices sent through registered post reached their destination. It is argued that the appellants came to know of the sale in favour of the respondents on 28‑9‑1991 and the Talabs were proved by the evidence of P.W.4 and P.W.5 coupled with the statement of appellant No.4 (P.W.6). Therefore, the finding of the trial Court be set aside and this appeal be accepted.

3. On the other hand the learned counsel for the respondents submitted that before addressing arguments on merits he would make some introductory submissions as to the scope of Act IX of 1991 in pre‑emption matters. The submission in brief was that with the decisions of the Federal Shariat Court, Supreme Court and Shariat Appellate Bench of the Supreme Court the Pre-?emption Act, 1913 was scraped and instead the Punjab Pre‑emption Ordinance, 1990 was promulgated on 28‑3‑1990 which paved the way for the Punjab Pre‑emption Act, 1991, and that the Courts while interpreting and applying the provisions of the Act of 1991 shall seek guidance from the Holy Qur'an and Sunnah while the matters ancillary and akin to the provisions of this Act which are not specifically covered by the provisions of the Act of 1991 shall be decided in accordance with Shariah.

4. On merits, it was argued that the plaintiffs in order to succeed in a suit for pre‑emption shall have to show that three demands (Talabs) i.e.‑‑‑ (a) `talb‑i‑muwathibat; (b) `talb‑i‑ishhad; and . (c) `talb‑i‑khusumat; were made strictly in accordance with law. It was argued that the right of pre?-emption is a feeble right being an exception to the general rule of freedom of agreement. Therefore, the requirements are to be complied like rituals. It was added that the witnesses of Talab‑i‑Ishhad unlike witnesses in any other matter are to be selected by the plaintiff and they should be truthful.

5. It was argued that the Talab‑i‑Muwathibat was not made promptly as is clear from the statements of P.Ws. specially P.W.4. While the notice for Talab‑i‑Ishhad was attested by P.W.4 and P.W.5, who have been proved not truthful witnesses. Besides that notices were not served in accordance with law. It was added that Talab‑i‑Ishhad was not made in accordance with the provisions of section 13, therefore, it was no Talab at all and the suit was rightly dismissed by the trial Court. In this behalf, the learned counsel has referred to the judgments reported as Muhammad Aziz v. Haider Ali Shah PLD 1991 SC 1080, Mst. Safia Begum v. Ibrahim PLD 1989 SC 314, Samundar Khan v. Ali Zaman PLD 1984 Pesh. 12, Muhammad.Ashraf v Muhammad Tahir 1990 MLD 2399, Monajal Haq v: Shafiullah PLD 1964 Dacca 640, Muhammad Ismail Qureshi v. Government of N.‑W.F.P. 1992 PSC 75; Shamsuddin v. Allauddin AIR 1932 All. 138; Aliman Begum v: Ali Hasan AIR 1923 All. 355, Ghulam Jilani v. Ghulam Muhammad 1991 SCMR 2001, Rujjub Ali Chopedar v. Chundi Churn Bhadra 17 Cal. 546, Anwar Ali v. Shah Nawaz PLD 1989 Kar. 246, Zafar Ali v. Zainul Abidin 1992 SCMR 1886, Pachumuddin Nayek v. Abdul Ghaffur AIR 1937 Cal. 283, Medni Proshad v. Suresh Chandra AIR (30) 1943 Pat. 96, Chandar Sekhar Tiwari v. Ram Prasad AIR 1950 Pat. 93, ,Muhammad Rauf Khan v. Mir Sahib Khan 1992 MLD 1, Mir Muhammad Amin v. Gulab 1993 CLC 98, Said Muhammad Shah v. Ghulam Hussain 1993 CLC 105, Abdul Ghaffar v. Malik Muhammad 1993 CLC 2437 and Suba Khan v. Muhammad Bashir 1993 MLD 1958.

6. The next submission was that common access and means of irrigation referred to private way, road and watercourse jointly owned by the vendor and the pre‑emptor. I did not include official/public roads and watercourses. In this behalf, the learned counsel has referred to the judgments reported as Imambakhsh Shah v. Muhammad Ali Khan AIR (33) 1946 Sindh 55, Abdul Rahman v: Muhammad Ismail AIR (34) 1947 All. 85 and Pir Ghulam v. Noor Zaman 1979 SCMR 360.

7. The learned counsel for the appellants while replying to the arguments advanced on behalf of the respondents submitted that the oral evidence produced to prove Talab‑i‑Ishhad by the appellants was superfluous and the requirement of the statute was fully complied with by the appellant by sending notices through registered post, acknowledgment due. It is added that the silence of appellant No.1 after securing copy of sale‑deed Exh.D2 would at the most defeat his right and will not affect the right and status of others. The arguments were concluded with the submission that in such cases the plaintiffs having no right could be deleted as plaintiff. In this behalf, the learned counsel referred to the case of Mehr Allah Ditta and another v. Muhammad Ali and another PLD 1972 SC 59.

8. It was clarified that the arguments advanced on behalf of the respondents that the common access and means of irrigation referred only to the jointly owned by the vendor and the pre‑emptor, is misconceived and clearly against the text of section 36 of the Act of 1991.

9. The arguments were summed up with the submission that the superior right of pre‑emption was proved by the appellants through unimpeachable documentary evidence and same has rightly been decided by the trial Court in favour of the appellants.

10. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law and precedents. The appellants have challenged the findings of the trial Court on issues Nos.2 and 5 only. The onus of Issue No.5 was on the appellants and in order to prove it they have examined P.Ws. 1 to 6 and produced postal receipts Exhs.P1 to P3, notices fixhs. P4, P7, P10, envelopes Exhs.P5 and P8, acknowledgment due receipts Exhs.P6, P9 and PI1 while respondent No.3 has appeared as D.W. 1 and produced the application for supply of copy EXh.D1 and sale‑deed dated 19‑8‑1991 as Exh.D2.

11. Now we proceed to decide whether Talab‑i‑Muwathibat had been proved in the case or not? The sale‑deed in this appeal is dated 20‑8‑1991. A certified copy which has been placed on the record as Exh.D

2. According to the appellants they learnt about the sale from Lakha P.W.5, who disclosed the factum of sale in the presence of P.Ws. 4, 5 and

6. The statement of P.W.4 was recorded on 21‑4‑1993. He stated that they learnt about the sale about 1‑1/2 years back and that the remaining land has also been sold while Gulzar Khan, Akhtar and Shuja Khan were sitting there when Ikram‑ud‑Din appellant said that he had to file a suit for pre‑emption. The witness in the cross‑examination said that this happened at about 10/11 a.m. While in para. 5 of the plaint the appellants have pleaded that they came to know of the factum of sale on 28th September, 1991 at Asarwela and to the same effect is the statement of Shuja?ud‑Din Khan appellant as P.W.6 as well as in the notices Exhs.P4, P7 and P10.

12. On the other hand, respondent No.3 as D.W.1 stated that the appellants were fully aware of the sale. They applied for the copy of the sale ?deed' on 1‑9‑1991 as is clear from the application form for supply of copy Exh.D

1. The copy of the sale‑deed Exh.D2 was supplied to them on 1.6‑9‑1991. Therefore, the version put forward in the plaint and tried to be proved through the evidence of P.Ws. 4, 5 and 6 is a mere concoction. The appellant Shuja‑ud?Din Khan when appeared as P.W.6 was cross‑examined as to Exhs.D1 and D

2. He admitted the signatures of Ikram‑ud‑Din appellant on the application form Exh.D

1. He also admitted that the Sub‑Registrar had allowed their application for supply of certified copy‑on 12‑9‑1991 and also that the copy of the sale‑deed Exh.D2 was supplied to Ikram‑ud‑Din appellant on 16‑9‑1991 and it is the same copy, which was placed on the record and subsequently exhibited as Exh.D

2. This completely knocks out the bottom of the plea of the appellants that they came to know of the sale on 28‑9‑1991 and they promptly made Talab‑i‑Muwathibat. The requirement of Talab‑i‑Muwathibat is that it has to be prompt, immediate and forthwith. The learned counsel for the respondents has referred to the judgment reported as Monajal Haq v. Shafullah (supra). The relevant portion of the judgment reads as under:‑‑‑ "

9. The cases reported in ILR 1 All. 283, ILR 1 Cal. 383 and 391 A 101 also support the view that talab‑i‑mowasibat should be made as soon as the fact of sale is known to the claimant otherwise the right is lost. 1n the case of Ali Muhammad v. Taj Muhammad ILR 1 All. 1283, it has been stated:‑‑‑ `The right of pre‑emption is not a strong right and it appears to us that anyone claiming it should be held bound by the conditions of the Muhammadan Law, and should promptly assert his right of pre-?emption by the immediate demand. It is not surely the duty of the Courts to enlarge the conditions under which so inconvenient and sometimes oppressive right can be asserted.' The facts in the case of Jorfan Khan v. Jabbar Mia ILR 10 Cal. 383 were that the plaintiff on hearing of the sale from his wife entered his house, opened his chest, took money, called the witnesses, proceeded to the premises that were subject of the sale and made the demand for pre‑emption. It was held that plaintiff was not entitled to pre‑emption as he did not make the demand or perform the ceremony of talab‑i?Mowasibat immediately upon hearing of the sale. ************************************************************************************************************************************************ 13.?????? Mr. Amirul Islam Chowdhury, on behalf of the respondent has taken the position here that demands were made actually on the 8th Aswar, 1364, B.S. corresponding to 23‑6‑1957. But this cannot improve the position of the plaintiff as the fact remains that Talab‑i‑Mowasibat was‑not made instantly at the registration office on hearing of the sale." In this judgment passage of Hedaya, Second Edition, page 550 has been quoted according, to which if the Shafee receives a letter, which either in the beginning or the middle, apprises him of the sale, and he read it on to the end, his right of Shaffa would be extinguished by the delay in making Talab‑i?Muwathibat. In the present case, it is clear beyond any shadow of doubt that the appellants came to know about the factum of sale before first of September, 1991 when they made the application for certified copy of the sale?-deed. As per their own showing, they did not make Talab‑i‑Muwathibat till 28th September, 1991. Even on the said date, according to P.W.4, the factum of sale was disclosed by P.W.5 at 10 or 11 a.m. while the Talab was made as per para. 5 of the plaint as well as in the notices dated 5‑10‑1991 and the statement of P.W.6 (appellant No.4), at Asarwela, which should be around 5‑00 p.m. in September. This way, even if, for the sake of arguments, the version, of the appellant is accepted, still the Talab‑i‑Muwathibat was not made promptly and immediately. The right was lost by delay in claiming it.

13. Now coming to Talab‑i‑Ishhad. It is worthwhile, before proceeding any further, to refer to subsection (3) of section 13 of Act, 1991, which reads as under:‑‑‑ "Where a pre‑emptor has made Talb‑i‑Muwathibat under sub?section (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 acknowledgment due, to the vendee confirming his intention to exercise their right of pre‑emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make Talb‑i‑Ishhad in the presence of two truthful witnesses." It is clear from the above provision that the general rule is that Talb‑i‑Ishhad should be made through a notice sent through registered post, acknowledgment due and its ingredients are:‑‑‑ . (1) It should be made through notice in writing; (2) It should be attested by two truthful witnesses, who should be invoked to attest the claim; (3) Talb‑i‑Muwathibat should be reiterated; (4) It should be made soon after Talb‑i‑Muwathibat but not later than two weeks from the date of knowledge; and (5) The notice should be addressed at the correct address and sent through registered post, acknowledgment due.

14. The notices copies of which are Exhs.P4, P7 and P10, were in writing and sent through registered post acknowledgment due but all other important ingredients essentials, prerequisites necessary to validate this Talab` are completely lacking. We would now deal with the same one by one.

15. It is clear from Exh. D1 and Exh.D2 that the appellants came to know of the sale at least on 1st of September, 1991 when they made application Exh. D1 "because in the application form they were not only supposed to give all the details of the sale‑deed including the date of registration etc., but, they, in fact, incorporated all the particulars of sale‑deed Exh.D

2. While the notices of Talab‑i‑Ishhad are, dated 5th October, 1991. The, same were, therefore, clearly out of time and there is valid Talab‑i‑Ishhad either. We are fortified in our view by the judgments in the cases reported as Muhammad Rauf Khan v. Mir Sahib Khan (supra), Mst. Safia Begum v. Ibrahim and 4 others (supra) and Suba Khan v. Muhammad Bashir (supra).

16. Now coming to the addresses of the respondents on which the notices were sent. The learned counsel for the appellants argued that as to the notices were sent through registered post acknowledgment due there was a presumption to the effect that the same reached their destination. On the other hand, the learned counsel for the respondents, with reference to section 26 of the General Clauses Act, 1956, argued that presumption is only available when it is proved that the notices were `properly' addressed. Although the address of respondent No.3 in the notice Exh.P7 was given of Chak No.`87‑A/6‑R' yet on the envelope Exh.P8 his address was written as Chak No.`82‑A/6‑R'. This is besides the admitted position that the said respondent was residing at Lahore in his official residence and the fact that Chak No.87‑A/6‑R consists of four Mohallahs (Abadies). The land and residence of the respondents are situated in the locality known as `Chaubareywali Abadi'. Therefore, at least to the extent of respondent No.3 there was no notice of Talab‑i‑Ishhad as held in the case of Aliman Begum (supra).

17. Now coming to the other ingredients of subsection (3) of section 13 that it should be attested by two truthful witnesses. The notices are witnessed by Muhammad Amin, Lakha and Muhammad Aqeel. The same have not been attested by any one. Even if this is treated as too technical and the witnesses are treated as the persons attesting the notices then out of them Muhammad Amin and Lakha were examined as P.W.4 and P.W.5.

18. The plea of the appellants that they came to know of the sale on 28th September stood falsified by Exhs. D1 and D2 which are not only official documents issued in the normal course of business but admitted as correct by appellant No.4 as P.W.6. This way P.Ws.4 and 5 had tried to prove a false plea taken by the appellant. The witnesses who faithfully. supported the false plea cannot be by any standard called as truthful. These documents are more than sufficient to prove their falsehood because persons may tell lie but not the documents. This is not all. P.Ws. 4, 5 and 6 have not only contradicted each other on 'every material factor but P.Ws. 4 and 5 also admitted having made wrong statements. The relevant portions of their statements read as under:‑‑‑ Therefore, we have no hesitation to hold that they are not truthful witnesses at all.

19. The learned counsel for the respondents with reference to the evidence, both oral and documentary, demonstrated that the statements of P.W.4 and P.W.5 are pack of lies. The learned counsel for the appellants took a somersault and urged that oral evidence of Talab‑i‑Ishhad is superfluous and was not required in face of service of the registered notice. The learned counsel for the appellants while raising this argument overlooked that it is the last nail in the coffin of the credibility of witnesses of Talabs. It not only rendered the notices invalid but it also disproved the Talb‑i‑Muwathibat tried to be proved by the same set of witnesses. This way the appellants have failed to prove Talb‑i‑Ishhad through notice as well as orally, therefore, their right of pre‑emption extinguished. We are fortified in our view by the judgments in the cases of Muhammad Rauf Khan and Muhammad Amin and 3 others (supra). This is beside the legal position that the appellants could not invoke the proviso to subsection (3) of section 13 of the Act of 1991.

20. The sum and substance of the above discussion is that the appellants have failed to fulfil main conditions of a valid Talb‑i‑Ishhad. Therefore, enforcible right of pre‑emption did not come into being. Conversely speaking the right of pre‑emption did not mature on account of their failure to make statutory Talabs in the prescribed manner.

21. In the end it was argued that the securing of copy of the sale‑deed would defeat the right of Ikram‑ud‑Din appellant alone and at best his name should be struck off from the array of the appellants. Lakha P.W.5 has clearly stated that the appellants had received copy of the sale‑deed when he alongwith the appellants went to the vendees. The relevant portion reads as under:‑‑‑ While Shuja‑ud‑Din P.W.6 admitted that it is the same copy which was appended by the appellants with the plaint. Even otherwise it is not possible to believe that Ikram‑ud‑Din secured copy of the sale‑deed for himself alone and kept it a secret from others.

22. Now coming to Issue No.2. The learned counsel for the appellants argued that there is no evidence except solitary statement of D.W.1. The learned counsel for the respondents pointed out that stance of the appellants is not correct. In fact, appellant No.4 as P.W.6 has 'categorically stated that the land was sold at the rate of Rs.65,000 per acre. His statement reads as under:‑‑‑ This was sufficient by itself to decide Issue No.2 in favour of the respondents.

23. The learned counsel for the respondents half‑heartedly tried to argue that issue No.1 as to superior right was not correctly decided as common source of irrigation and common passage meant the private source of irrigation and passage used by the vendor and the pre‑emptor. This is against the plain reading of section 31 of the Act of 1991. Therefore, there is nothing wrong with the findings of the learned trial Court on this issue.

24. The upshot of the above discussion is that this appeal fails and is dismissed with costs. AA./I‑151/L?????????????????????????????????????????????????????????????????????????????? ????????? Appeal dismissed.