2016 PLP 1229 (CLC)

Facts, in brevity, are as such that the appellants instituted a suit for possession on the basis of pre-emption by maintaining that they enjoyed superior right of pre-emption and performed Talbs in accordance with law, so they were entitled to a decree for possession on the basis of pre-emption. (Detailed facts can be recapitulated from the impugned judgment passed by learned Court below), The respondents/defendants contested the suit by filing written statement and controverted the averments of the plaint. The learned trial Court framed issues; both the parties adduced their evidence, oral as well as documentary, in pro and contra. The learned trial Court after hearing the arguments vide impugned judgment and decree dated 09.07.2010 dismissed the suit of appellants/plaintiffs, which necessitated in filing of the appeal in hand.

2. It has been argued by learned counsel for the appellants/ plaintiffs that the impugned judgment and decree is against law and facts available on record; that the appellants have fulfilled the required Talbs in accordance with law. Maintains that misreading and non-reading of evidence has been committed by the learned trial. Court while passing the impugned judgment and decree and law on the subject has wrongly been interpreted. Mentioning of names of the witnesses in the pleadings is not necessary, but this point has wrongly been taken up by the learned trial Court. Adds that material irregularities and illegalities have been committed by learned Court below. The findings recorded on issues are contrary to the oral and documentary evidence. Without application of judicious mind, the impugned judgment and decree has been passed mere on the basis of surmises and conjectures. Therefore, by allowing the appeal in hand, impugned judgment and decree may be set aside, consequent whereof suit of the appellants may be decreed as prayed for.

3. Gainsaying and controverting the submissions of learned counsel for the appellants, the learned counsel representing the respondents by favouring the impugned judgment and decree has prayed for dismissal of the appeal in hand. Relies on Muhammad Ali and 7 others v. Mst. Humera Fatima and 2 others (2013 SCMR 178), Sardar Khan v. Nadir Ali (2014 YLR 69-Lahore) and Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243).

4. Heard.

5. In order to succeed in a suit for possession on the basis of pre-emption, it is imperative and necessary as well as sine qua non to prove the performance of Talbs in accordance with law, as elaborated under Section 13 of The Punjab Pre-emption Act, 1991 and when Talbs are not proved as per mandate and dictates of law, same results fatal to the pre-emptor's case. When impugned judgment and evidence of the parties are put in juxtaposition, it gleans out that evidence of the parties has minutely been scanned and appraised while recording the judgment by learned trial Court; no misreading and non-reading of evidence has surfaced, rather the discrepancies and contradictions in the depositions of the P.Ws. have rightly been pointed out and looked into, with regard to time of passing on information of sale in dispute to the appellants by the informer, as other P.Ws. and informer P.W.3 contracted on this point; meaning thereby jumping demand as alleged by the appellants has not been proved according to law. It is also evident from the plaint that no specific place except `house' for performance of Talb-i-Muwathibat has been narrated by the appellants; more so, the plaint does not contain names of witnesses, who formed Majlis or in whose presence such Talb has been performed by the appellants, which causes dent in the case of the appellants, because opponent party cannot be, according to law, kept in mystery and all of a sudden new set of witnesses cannot be introduced. Reliance is placed on Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243) wherein it has invariably been held: 'Thus, even in the second list of witnesses the name of other witness of Talb-i-Ishhad P.W.4 Abdul Khaliq was missing, which surfaced only when he appeared in the witness box to depose. This fact alone is sufficient to show that introduction of their name as witnesses of two talbs was a afterthought and for this reason alone names of these two witnesses of Talb-i-Muwathibat and Talb-i-Ishhad were also withheld by the respondents in their pleadings. This admitted fact from the case record, thus, seems to be fatal to the claim of the respondents as regards their right of pre-emption under the general principles of Muhammad Law, which cannot be overlooked or condoned for the reason that it may be due to oversight or some mistake that names of these witnesses, except P.W.5 Sher Bacha, remained un-cited in the two lists of witnesses.' In addition to the above, mentioning and proving of time, date and place of imparting information and making of jumping demand is sine qua non in order to succeed in a suit for possession on the basis of pre-emption, which is lacking in this case, as stated above. Reliance in this regard is place on Mian Pir Muhammad and another's case (PLD 2007 Supreme Court 302), reiterated/confirmed in recent judgments reported as (2013 SCMR 721) and Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243).

6. Missing of performance of one talb is fatal and injurious to the appellants and when the appellants/plaintiffs have failed to prove performance of Talb-i-Muwathibat as per dictates of law, no decree for possession through pre-emption can be passed in their favour. Reliance is placed on Mst. Sahib Jamala v. Fazal Subhan and 11 others (PLD 2005 Supreme Court 977).

7. Pursuant to the above discussion, while placing reliance on the judgments supra, it can safely be observed that the learned trial Court has committed no misreading and non-reading of evidence on record, rather appraised each and every aspect of the case in a minute way, which culminated in passing of judgment and decree upto the dexterity. No illegality and irregularity, warranting interference by this Court is surfacing on record; consequent whereof the appeal in hand being devoid of any force and substance comes to naught and stands dismissed. No order as to costs. ZC/M-86/L Appeal dismissed.