2004 PLP 871 (YLR)

2. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide judgment and decree dated 12-7-1993 dismissed the suit. Feeling aggrieved thereby, the petitioners preferred an appeal which came up for hearing before the learned Additional District Judge, Sialkot who vide impugned judgment and decree dated 18-9-1996 dismissed the same affirm findings of the trial Court. The trial Court had decided Issues Nos.2 3, 7 and 8 against plaintiffs-petitioners while the Appellate Court in appeal had reversed the findings on Issues Nos. 7 and 8 and maintained the findings on Issues Nos.2 and 3 deciding against the petitioners.

3. The question that boils down for determination in this case is that whether the requirements of Talbs have been fulfilled by the plaintiffs-petitioners.

4. Learned counsel for the petitioners contended that onus to prove the Issue No.2 was on the defendants and they miserably failed, and petitioners by producing cogent and sufficient evidence has proved the performance of the same. Further argued that the petitioners cannot be non-suited for non-performance of "Talb-i-Muwathibat' and "Talb-i-Ishhad" simply because hi, own witness of these Talbs had joined hands with the vendees. He continued that the Legislature in its wisdom has given importance and stress to the attestation by two truthful marginal witnesses of "Talb-i- Ishhad" and it is not necessary that two witnesses should depose in Court. He placed reliance on case of Muhammad Aslam v. Ghulam Qadir 2003 YLR 1650. Further submitted that the "Talb-i-Ishhad" being procedural in nature same could not be considered as mandatory so as to result in non-suiting the pre-emptor on the ground of its non-compliance. He relied on case of Abdul Malik v. Muhammad Latif 1999 SCMR 717.

5. On the other hand, learned counsel appearing on behalf of contesting respondents had vehemently opposed the arguments of the learned counsel for the petitioners contending that no pre-emptor can succeed if he fails to fulfil the requirement of Talbs as per section 13 of Punjab Pre-emption Act.

6. I have heard the learned counsel for the parties, and gone through the record.

7. As to the arguments of learned counsel for the petitioners that onus to prove the Issues Nos.2 and 3 was on the defendants-respondents, it is suffice to say, that the trial Court in paragraph No.6 of the judgment had mentioned that onus to prove the issues was on the defendant but under the law it was the duty of the plaintiffs to prove the performance of `Talbs' for the suit of pre-emption, therefore, with the mutual consent of learned counsel for the parties, the onus to prove the issues was shifted, to the plaintiffs and they adduced oral as well as documentary evidence upon 'these issues. Accordingly, this argument of the learned counsel for the petitioners is belied from the record, hence, the same being misconceived is repelled.

8. To establish the performance of "Talb-i-Ishhad" the plaintiffs produced Muhammad Din P.W.2, who stated that after a lapse of 15 days of making "Talb-i -Muwathibat" a notice was issued to the defendant of which he, was an attesting witness. In cross-examination he showed his ignorance about the contents of the notice. P.W.3 Abdul Ghani also deposed in line with P.W.2 and admitted that he did not know that what was written in the notice. The notice in original nor the copy of the same had been placed on record. The only evidence to substantiate this fact was of caved Iqbal P.W.4 who too, admitted that notice was not received by the defendant-respondent Muhammad Ismail.

9. Both the Courts below gave concurrent findings of fact observing that the plaintiffs-petitioners failed to perform all the three requirements of Talbs and in case of Haji Muhammad Saleem v. Khuda Bux PLD 2003 SC 315 it has been observed that where two Courts below have appreciated the evidence minutely and discussed the same in detail and thereafter had arrived at concurrent conclusion, the High Court should not have interfered with simply to substitute its own findings, notwithstanding, the mode of appreciation of evidence being subjective. The concurrent findings of fact could be interfered with by the High Court only where such findings were based on "conjectural presumptions", erroneous assumptions, wrong proposition of law, insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, arbitrary exercise of power and where unreasonable view of evidence had been taken due to non- reading and misreading of evidence".

10. In the case in hand, the pre-emptor through the evidence on record had failed to perform the Talbs and the Courts below have rightly appreciated the same while passing the impugned judgments.

11. In another case, Abdul Qayyum v. Muhammad Rafiq 2001 SCMR 1651, the Honourable Judges of Supreme Court have observed that as the provisions of section 13(3) of Punjab Pre-emption Act, 1991 being mandatory in nature, performance of `Talb-i-Ishhad' was considered to be one of the most important conditions for enforcing the right of pre emption and if a notice had not been sent as per the requirement of law, the conclusion would be that `Talb-i-Ishhad' had not been made, as a result whereof right of pre emption would be deemed to have extinguished. It is further observed that both `Talb-i-Muwathibat' and `Talb-i- Ishhad' had to be proved simultaneously and right of pre-emption would stand extinguished for want of both the Talbs.

12. In case of Muhammad Ramzan v. Lal Khan 1995 SCMR 1510, the Honourable Judges of apex Court had observed that section 13 of the Punjab Pre emption Act, 1991 prescribes that the right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order:-- (i) Talb-i-Muwathibat; (ii) Talb-i-Ishhad; and (iii) Talb-i- Khasumat.

13. As to the case-law referred to by the learned counsel for the petitioners i.e. Abdul Malik (supra) is concerned, in this case `Talb-i-Ishhad' was claimed to have been made in the presence of two witnesses whose names were disclosed in the said notice. Notice though did not contain the attestation of the said two witnesses but the contents of the notice and evidence of two witnesses showed that the provisions contained in section 13(3), Punjab Pre emption Act, 1991, were substantially complied with, but the facts of this case are not applicable on all the fours of the present case as in the case in hand the notice was not produced in evidence. Only the petitioners are relying upon the oral statements of P.Ws.2 and 3 to depose that they were the attesting witnesses of the notice but they admitted that they did not know the contents of the notice. The statement of P.W.4, Muhammad Iqbal is not sufficient to establish that any notice was issued to the plaintiffs.

14. So far as the contention of the learned counsel for the petitioners that the legislature has given importance and stress to the attestation by two truthful marginal witnesses of `Talb-i-Ishhad' and it is not necessary that two witnesses should depose in Court is concerned, the answer would be that it is the function of the Court to dig out the truth from the evidence produced by the parties but in the instant case the statements of P.Ws.2 and 3 being contradictory and not worth reliance have been disbelieved by the Courts below and this appreciation of evidence cannot be interfered with by this Court while exercising its revisional jurisdiction as laid down in cases of Haji Muhammad Saleem, (supra), Rahim Dil v. Province of Punjab 1999 SCMR 1060 and Khurshid Bibi v. Muhammad Rafique 1987 SCMR 1545.

15. Learned counsel for the petitioners has not been able to point out any illegality, material irregularity, misreading or non-reading of evidence in the decision rendered by the two Courts below.

16. Resultantly, this revision petition being devoid of merit is dismissed with no order as to costs. S.A.K/M-2391/L Revision dismissed.