2006 PLP 2457 (YLR)

UMAR ATA BANDIAL, J.

This revision petition is tiled against the judgment dated 9-12-2003 passed by the learned Additional District Judge reversing the judgment of the learned Civil Judge dated 17-10-2002 and decreeing the suit filed by the respondent for the relief of possession through pre-emption of land measuring 16 Kanals situated in village Bhooa Hassan sold to the petitioner vide mutation of sale bearing No.696 dated 6-3-2006 (Exh.P.5).

2. Briefly stated the sister of the respondent pre-emptor sold the suit-land to the petitioner vendee through the aforesaid mutation of sale (Exh.P.5). The learned trial Court struck 11 issues in the controversy between the parties but before this Court, the learned counsel for the petitioner has made submissions solely with respect to Issue No.3, which is in the following terms:-- "Issue No .3. Whether the plaintiff made tables according to law of pre-emption? OPP"

3. A principal point of challenge by the learned counsel for the petitioner is that the Talb-i-Ishhad is not duly proved on the record by the respondent. Notwithstanding the specific objection by the learned counsel for the petitioner is that the respondent failed to prove services of the notice of Talb-i-Ishhad in accordance with law, in particular by the omission to produce any witness from the postal department. In support of this proposition he has relied on the judgment of this Court in Zulifqar Ahmad v. Ikhlaq Ahmad 2003 MLD 846; the judgment of the Honorable Peshawar High Court in case of Mst. Hameeda Shamim v. Deputy Commissioner, Karachi South, Karachi and 7 others 2004 CLC

100. The latter judgment is passed on completely different facts whereas the former although concerned with the matter in hand fails to cite any law to support the manner and mode of proof that is specified for the purpose of proving notice of Talb-i-Ishhad. It is important in the present context to note that the exhibits proving Talb-i-Ishhad namely the notice (Exh.P.1), postal receipt (Exh.P.2) and acknowledgement due card (Exh.P.3) were produced in original on the record without object by the petitioner. Under the rule laid down in the case of S.A. K. Rehmani v. The State 2005 SCMR 364 and Malik Din v. Muhammad Aslam PLD 1969 SC 136, the failure to raise objection to the admissibility at the time of the production of a document on record is conclusive. Be that as it may, in a recent judgment in case of Pervaiz and another v. Muhammad Nawaz 2006 SCMR 4, the proof of Talb-i-Ishhad by the aforementioned accounts exhibited on record has been treated to be sufficient evidence for the purpose. In any event a perusal of the statement in chief of the petitioner vendee as D.W.8 contains an unequivocal admission of the receipt of notice. Although the said statement does not specify the contents of the notice received by the petitioner, however, his learned counsel has sought to explain the statement as referring to a notice under section 31 of the Punjab Pre-emption Act, 1991. That provision calls for a notice to be issued by the Tehsildar to the public about the registration of a mutation of sale. The explanation by the learned counsel for the petitioner does not appear to be satisfactory because a notice under section 31 ibid goes to the public through display at public places and is not sent specifically to the vendee. Resultantly, the objection taken by learned counsel for the petitioner to question the validity of the Talb-i-Ishhad is not made out.

4. Reference was made in passing by the learned counsel for the petitioner to the effect that the agreement to sell dated 17-1-1996 (Exh.D.1) entered between the vendor and the petitioner in respect of the suit-land was known to the respondent pre-emptor and that he was present at the time of the recording of the mutation of sale. A question was thereby raised by the learned counsel about the validity of the Talb-i-Muwathibat made in the present case on 7-3-1996, for lacking the element of a jumping demand. Although this point was not urged forcefully, it is also apparent that there is dearth of evidence thereon. To dispute the respondent's claimed date of knowledge of the sale to be an oral statement about the impugned mutation of sale dated 6-3-1996, the petitioner was under a duty to bring positive evidence showing an earlier date of knowledge of the respondent about the sale. The petitioner's statement as D.W.8 vaguely alleging that the respondent has prior knowledge should have received support from positive documentary or oral evidence which is not available in the present case. The fact that the agreement to sell between the petitioner and the vendor was executed on 17-1-1996 does not lead to a presumption that the respondent had knowledge thereof particularly because the respondent is neither a party nor a witness on the said agreement of sale (Exh.D.1). Indeed for this reason it appears that the learned counsel did not press the present point with any vigor.

5. In the result therefore, the Court does not find any misreading or non-reading of the record nor misapplication of law by the learned Addl. District Judge in his impugned judgment. Therefore, the Court does not see any reasons to interfere with the said judgment. This civil revision petition, has no merit and is accordingly dismissed with no order as to costs. F.B./M-262/L? ????????????????????????? ???????????????????????????????????????????????????????????????Petition dismissed.