2016 PLP 2 (CLCN)

IBAD-UR-REHMAN LODHI, J.

A suit for pre-emption filed by the respondents herein was partly decreed by learned Civil Judge, Gujrat under section 20 of the Punjab Pre-emption Act, 1991, by holding both the pre-emptor and the vendee having equal right to pre-empt, vide judgment and decree dated 13.11.2002.

2. The present petitioner feeling aggrieved of the said disposal of the suit, preferred his first appeal before learned District Judge, Gujrat, which was dismissed by a learned Additional District Judge, Gujrat on 02.01.2003. Hence, the present civil revision petition before this Court.

3. Learned counsel for the petitioner has contended that even if the pre-emptor and vendee are considered having entitled of equal share in the property in view of section 20 of the Punjab Pre-emption Act, 1991, the pre-emptor would not be absolved of his basic duty to establish the fact on record that prior to filing the suit he performed statutory duty of making Talbs in accordance with law and if the pre-emptor having equal right to pre-empt has been shown to have failed in making Talbs in accordance with law then his suit for possession through pre-emption is bound to dismiss. Elaborating his contentions, learned counsel has referred paragraph No.3 of the plaint wherein it has been pleaded that on receipt of information of the sale, the plaintiff announced as to his superior right but he never disclosed his intention to challenge the sale on the basis of his such right of pre-emption.

4. When Malik Ghazanafar Ali-plaintiff appeared in the witness-box as P.W.2, he was cross-examined and during such process he has admitted in clear words that he got knowledge of the sale in question 15/16 days prior to filing of the suit. The suit was filed on 16.01.2001 and if from such date of filing of the suit, one calculate the date of having knowledge by the plaintiff, it goes back to 1st or 2nd January, 2001, as a first date, when the plaintiff got knowledge, thus, making of Talb-i-Muwathibat on 05.12.2000 would not remain clear from doubts. Learned counsel for the petitioner further argued that the plaintiff as P.W.2 in his statement before the Court has, for the first time, shown his intention to exercise his right to pre-empt the sale in question, such part of the evidence, which is beyond the pleadings is liable to be ignored.

5. As regards making of Talb-i-Ishhad, for the reason that on the file, only one page document was placed as Exh.P.1, which has been termed as a notice for Talb-i-Ishhad. In view of incomplete state of such notice, record of the learned trial Court was requisitioned, which reveals somewhat more to form an opinion that even requirement of making Talb -i-Ishhad was not fulfilled in compliance of section 13 of the Punjab Pre- emption Act, 1991.

6. Learned counsel for the respondents has defended the impugned judgments.

7. In view of the explanation (1) to section 13(i) of the Punjab Pre-emption Act, 1991, '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 and keeping in view such definition a clear intention to exercise the right of pre-emption is the requirement of law in order to establish by the plaintiff in a pre-emption suit to show that he has made Talb-i-Muwathibat in accordance with law. In the plaint, as noted hereinabove, the plaintiff by means of paragraph No.3 has only announced his superior right of pre emption, but never disclosed his intention to challenge the same through suit for pre-emption, as such, even if at subsequent stage, the plaintiff in his evidence has disclosed his intention to exercise his right of pre-emption, the same is of no avail being beyond pleadings.

8. The plaintiff himself made it a doubtful episode by stating on Oath that he came into knowledge of the sale in question only 15/16 days prior to filing of the suit, as such, his earlier stance of making Talb-i Muwathibat on 05.12.2000 would lost its any validity and efficacy. Perusal of Exh.P-1, stated to be a notice in compliance of making Talb-i-Ishhad is not a complete document. What is available on record in shape of Exh.P.1, seems to be a last page of some notice. From whatever is available on record as notice Exh.P.1, it is not borne out as to who is the addressee of such notice and with regard to which sale, the same was issued.

9. The name of vendee has been noted in the plaint as Ahmed Khan son of Mohammad Khan, whereas, from the postal receipt Exh.P.3, it reveals that notice through said receipt was issued to some Ahmed Khan son of Mohammad Ramzan and when acknowledgment due receipt was produced on record as Exh.P.4, it discloses that the same was received by one Ahmed Khan son of Kalay Khan. The learned counsel for the respondents has failed to reconcile such anomaly. The document Exh.P.1 further shows that some Qazi Zafarullah Khan, Advocate issued such notice.

10. In view of the law laid down by the Hon'ble Supreme Court of Pakistan in case reported as "Unair Ali Khan and others v. Faiz Rasool and others" (PLD 2013 SC 190), the power to issue notice of Talb-i-Ishhad being not exercised directly by the pre-emptor and such duty was performed by some other person, then there must be specific permission through some permissible mode by the pre-emptor to his agent. Empowering the latter to issue notice of Talb-i-Ishhad on behalf the plaintiff must be through explicit permission and unless the same is provided to such agent, the issuance of notice by such agent, at no cost, be considered a valid act on the part of the pre-emptor.

11. From whatever discussed above, it is but clear that the plaintiff-pre-emptor has failed to perform both Talbs i.e. Talb-i -Muwathibat and Talb-i-Ishhad strictly in accordance with law as required under section 13 of the Punjab Pre-emption Act, 1991.

12. Resultantly, this Civil revision petition is allowed and the suit filed by the plaintiff/respondent is dismissed. SA/A-133/L Revision allowed.