1999SCMR724 (PLP)

SAIDUZZAMMAN SIDDIQUI, J

We propose to dispose of above mentioned three Civil Appeals by a common judgment as the points of law and facts arising in these appeals 'are identical:

2. Leave was granted in the abovementioned appeals to consider the following contentions raised on behalf of the appellant:-- "Mr. Gul Zarin Kiani, Advocate Supreme Court, learned counsel for petitioner raised following contentions:-- (i) The finding relating to plaintiff/respondent's superior right of pre emption on account of contiguity or share of common appendages is based on complete misreading of evidence. (ii) Lands in dispute purchased by petitioner comprised of rectangles 19 and 20 whereas lands owned by respondent form part of Rectangle Nos. 17 and 18 which according to certified copy of Aks-Shajra-Kishtawar are separated vertically and longitudinally by thoroughfare and water course running across; over Government land but this factual aspect was completely misrepresented before the trial Court, materially affecting the conclusions, impugned through present petitions. (iii) There exists unexplained delay in the performance of requisite 'Talabs' in view of the language of section 13(3) of Punjab Pre-emption Act, 1991 and interpreted by this Court in judgments reported in 1992 SCMR 1780 (Mir Sahib Khan v. Muhammad Rauf Khan) and 1992 SCMR 1886 (Zafar Ali v. Zainul Abidin and another).

6. Having heard the arguments and perusal of record we feel that questions relating to factual controversy have been properly determined and new points which were not raised before the High Court cannot be permitted at this stage under settled principles of law. However, terms 'as soon as possible' appearing in section 13(3) of The Punjab Pre-emption Act, 1991, irrespective of prescribed outer limits needs to be adequately interpreted in the light of aforequoted reports.

7. It may be seen that above legal point came up for consideration in C.P.L.A., No. 1616 of 1995 (Muhammad Ajaib v. Muhammad Afzal and others) wherein leave was granted on 13th March, 1996, in the following terms: 'The petitioners' counsel contended also that the words 'as soon as possible' in subsection (3) of section 13. of the Punjab Pre emption Act, 1991, must mean that the notice of Talab-i-Ishhad should be given without wasting a single moment. For this view we sought to derive support from Mir Sahib Khan v. Muhammad Rauf Khan (1992 SCMR 1780).' In another matter in C.P.L.A. No.1990 of 1996 (Muhammad Ilyas v. Ghulam Muhammad) leave was granted by this Court on 6th November, 1996 for considering same legal points.

8. Since interpretation of section 13(3) of the Punjab Pre-emption Act would affect large number of cases and is already pending consideration in the above matter, therefore, we are inclined to grant leave to appeal in these petitions for examining said legal question. Office should fix all the connected matters at any early date. Interim relief already granted shall, however, continue pending disposal of appeals."

2. It is not necessary to state here facts of this case as it is an admitted position in the case that the notice expressing Talab-i-Ishhad was sent by the respondent after 10 days of making Talab-i-Mawathibat. The learned counsel for the appellant contends that as the respondent failed to give any explanation for the delay in sending notice for Talab-i-Ishhad, the Courts below wrongly came to the conclusion that the Talab-i-Ishhad was conveyed by the respondent in accordance with law. In support of his contention, the learned counsel for the appellant has relied on the cases, Mir Sahib Khan v. Muhammad Rauf Khan (1992 SCMR 1780); War Ali v. Zainul Abidin (1992 SCMR 1886); Qadar Gul v. Moembar Khan (1998 SCMR 2102); Muhammad Ajaib v. Muhammad Afzaf (1998 SCMR 2396) and an unreported decision, dated 28-4-1998, in Civil Appeal No.1705 of 1996. None of the cases relied by the learned counsel, in our view, is of any assistance in the present case.

3. In the first-noted case of Mir Sahib Khan (supra), this Court while interpreting the provisions of section 13 of N.-W.F.P. Pre-emption Act, 1987 (which is identical to section 13 of Punjab Pre-emption Act 1991) observed as follows:-: "The only ground which prevailed with the learned Single Judge of the Peshawar High Court for upsetting the concurrent finding of facts of two Courts below was that the mandatory provision of section 13 of the N.-W.F.P. Pre-emption Act, 1987 had not been complied with, prior to the institution of the suit, resulting in the extinguishments of the right of pre-emption of the plaintiff/petition. According to the averment of the plaint the plaintiff/petitioner got the knowledge of the sale transaction in question on 20-7-1988 and on that very day he made Talab-i-Mawathibat. Under section 13, subsection (3) a pre-emptor after making Talab-i-Mawathibat as required under subsection (2), shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32 of the Act ibid, or knowledge whichever may be earlier, make Talab-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre emption. Under subsection (4) when a pre-emptor has satisfied the requirements of the Talb-i-Mawathibat under subsection (2) and Talb-i -Ishhad under subsection (3), he shall make Talab-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption. The plain reading of the aforequoted provisions of pre-emption law makes it amply clear that no sooner the pre-emptor gets knowledge of the sale transaction, he is to declare his intention to pre-empt the same and as soon thereafter as possible has to send a registered cover notice, acknowledgement due, in writing, attested by two truthful witnesses, to the vendee. This is to create evidence of the intention of the pre-emptor to file a suit for pre-emption. The ingredients of subsection (3) are; one, that the notice must be sent as soon as possible after Talab-i -Mavaathibat but not later than two weeks; two, that the notice must be sent in writing; three, it must be attested by two truthful witnesses; and four, it must be sent under registered cover acknowledgement due. There is a proviso is subsection (3) that the Talab-i-Ishhad can be oral in presence of two truthful witnesses if no facility of post office is available to the pre-emptor. If the provision of subsection (3) is strictly interpreted, the pre-emptor has to give the notice of Talab-i-Ishhad as soon as possible without wasting a single moment muchless waiting for the last day of two weeks. In the case in hand, the plaintiff/petitioner failed to produce postal receipt or the acknowledgement due receipt or the employee of the postal department in proof of his allegation that the required notice was sent on 3-8-1998 as alleged by him, under registered cover acknowledgment due. The burden of proving Talab-i-Ishhad was obviously on the plaintiff/petitioner and he having failed to discharge the onus placed upon him, the learned trial Court as well as the Appellate Court could not presume that the requirement of section 13, subsection (3) had been complied with." The appellant, relying on the above observations of this Court "if the provision of subsection (3) is strictly interpreted, the pre-emptor has to give the notice of Talab-i-Ishhad as soon as possible without wasting a single moment muchless waiting. for the last day of two weeks", contended that if the notice is not given immediately after raising Talab-i-Mawathibat, the pre-emptor's right to pre-empt the land is defeated. It is, however, to be noted that the above observation only shows that if the provisions of subsection (3) (ibid), are to be strictly interpreted then this result would follow. The above observation, however, does not support the contention of the learned counsel for the appellant that this Court interpreted the provisions of section 13 of N.-W.F.P. Pre emption Act in the manner mentioned above. From the facts stated in that case, it is quite obvious that the plaintiff in that case had contended before the Court that he sent a notice on 3-8-1998 but he failed to establish his allegation regarding sending of the notice relating to Talab-i-Ishhad and it is for this reason that this Court refused to grant leave against the order of the High Court. In the second noted case Zafar Ali v. Zainul Abidin, (supra), this Court held that it is possible for a pre-emptor to make Talab-i-Ishhad immediately after Talab-i-Mawathibat on the same day and despatch the notice also on the same day which will meet the requirement of section 13 of N.-W.F.P. Pre-emption Act. However, on facts the Court reached the conclusion that the pre-emptor failed to establish his Talab-i-Mawathibat in that case and accordingly, leave was refused against the judgment of the High Court. In Muhammad Ajaib S. Muhammad Afzal (supra), this Court found that the notice of Talab-i-Ishhad despatched within 2/3 days of the first demand, was in accordance with section 13(3) of Punjab Pre-emption Act. In the case of Qadar Gul v. Moember Khan (supra) requisites of a valid Talab-i-Ishhad were stated as follows:-- "The requisites of valid 'Talab-i-Ishhad' and conditions necessary therefor are: (1) It must be made in presence of at least two witnesses. [Pachumuddin Nayek v. Abdul Ghaffur and others (AIR 1937 Calcutta 283)]. (2) It should be made with a little delay as possible in the circumstances. [Muhammad Raza Ali Khan v. Muhammad Israr Hasan Khan (AIR 1929Allabahad 459)]. (3) A reference should be made at the time of Talab-i-Ishhad (second demand) to the fact that Talab-i-Muwathibat (first demand) had previously been made. [Rejjub Ali Chopedar v. Chundi Churn Bhadra and others (ILR 17 Calcutta 543)]. (4) Demand of pre-emption may be made to the vendee or to his agent or to the vendor or on the premises sold on different circumstances. [Faqir Shaikh v. Syed Ali Shaikh and others (AIR 1955 Calcutta 349)] . " The above statement of respondent on oath coupled with the written notice sent to the appellant within 10 days of the Talab-i-Mawathibat substantially complied the legal requirement of section 13(3) of Punjab Pre emption Act, 1991. We, therefore, find no substance in these appeals which are, accordingly, dismissed. There will, however, be no order as to costs in the circumstances of the cases. M.B.A./M-271/S Appeals dismissed.