2007 PLP 819 (CLC)

MIAN SAQIB NISAR, J.

The appellants/plaintiffs have lost their cause of pre-emption, before the learned trial Court, on the issue of Talbs; their first appeal has also failed vide judgment and decree dated 17-2-2001. Hence this second appeal.

2. Briefly stated the facts of the case are that the suit-land measuring 104 Kanals, 5 Marlas (described in the head note of the plaint), was sold by Muhammad Ali in favour of the respondents/defendants, vide Mutation No.5051 dated 4-7-1991; the appellants, who all are the brothers, claim that they learnt about the sale on 14-10-1991 from one Abdul Hameed and made the Talb-i-Muwathibat in the same Majlis, followed by a notice of Talb-i-Ishhad issued on 17-10-1991, to the vendees; thus they brought the suit for the pre-emption, based upon the right of being Shafi-Sharik, Shafi-Khalit and Shafi-Jar; they also averred in the plaint that though ostensibly, the sale has been made for a consideration of Rs.15,00,000 but actually Rs.10,00,000 has been paid and the high sale price has been shown to cause prejudice to their right of the pre-emption; the respondents/defendants contested the matter; issues were framed; parties were put to trial; the appellants produced ten witnesses to prove the issues, the onus whereof has been placed upon them, whereas, the respondents also examined same number; on the conclusion of the trial, the learned Civil Judge vide judgment and decree dated 6-5-1996, though found that the appellants have been able to prove their superior right of pre-emption, and that the actual sale price was Rs.15,00,000, but dismissed the suit on the ground that the appellants have failed to prove the Talb-i-Muwathibat; the learned trial Court, in this regard, has held that only one of the plaintiffs, has appeared as a witness, but he is not holding any power of attorney on behalf of the others, whereas the other plaintiffs, have not appeared to prove the Talbs; the venue, day and the time have not been stated in the plaint; the informer Abdul Hameed, has been disbelieved as being a closely known person of the pre-emptors/plaintiffs; regarding the Talb-i-Ishhad, it has been found that the notice to respondent No.1, one of the vendees, has not been proved to have been sent; the postman has not been examined, to prove that the notice was served upon respondent No.1, who . admittedly was not living in the Deh, rather at Lahore and notice has not been sent to him at his correct address; hence the suit was dismissed vide judgment and decree dated 6-5-1996; against the decision, the appellants preferred an appeal, whereas, no cross-appeal or cross-'objections, were filed by the respondents, upon the issue of superior right of pre-emption and it is not spelt out from the record, if any oral attack was made on that issue, therefore, the finding of both the Courts below on the issue of superior right has attained the finality; whereas the learned counsel for the appellants, has not been able to satisfy me that the findings of the two Courts about the sale price of the property, are illegal or based upon misreading of the record. Thus, the only issue, which remains for the determination of this Court is about the Talbs.

3. Mr. Shahzad Shaukat, the learned counsel for the appellants has vehemently argued that both the Courts below, have failed to properly read the evidence on the issue of Talbs and have also given the findings contrary to the law, pronounced by the Superior Courts of the country on the subject in this regard, he has taken me through the contents of paragraphs Nos.6, and 7 of the plaint and corresponding paras. of the written statement to argue that the respondents have never taken the objection that the address of respondent No.1, is incorrect and therefore, the notice of Talb-i-Ishhad was not legally issued to him; rather respondent No.1, who was a defendant of the case, in the plaint was stated to be the resident of the address, upon which, the notice of Talb-i-Ishhad, was sent; he was served in the case on the same address and had been appearing, without raising any objection about his residence; it is also submitted that the defendants were earlier proceeded ex parte; that moved an application, for setting aside the ex parte order on 5-11-1996, accompanying by an affidavit dated 22-11-1996, in which, the same address upon which the notice of Talb-i-Ishhad, was sent to respondent No.1, has been written; he further submits that this R.S.A., the substitution of the legal heirs of Ghulam Hazoor, vendee along with the affidavit of respondent No.1, has been filed, which mentions the same address. In addition to the above the learned counsel submits that from the evidence on the record, such as copy of the Jamabandi, the voter list and Khasra Girdawari Exh.P.15 to Exh.P.19, also proves that respondent No. 1, was the resident of the address given in the notice of Talb-i-Ishhad. Therefore, the findings of the Courts below that respondent No.1, was not served with the notice of Talb-i-Ishhad at the correct address, are illegal and against the record, and cannot sustain.

4. About the Talb-i-Muwathibat, it is submitted that as far as the statement of Abdul Hameed, (P.W.4), is concerned, respondents themselves have given him the suggestion: According to, the counsel, this suggestion, which is binding upon the respondents proves, as deposed by Abdul 'Hameed (P.W.4), in his statement before the Court, that Ghulam Hazoor met him on 14-10-1991 and disclosed about the sale, which he further divulged to the plaintiffs and they made the Talb-i-Muwathibat; this aspect of the matter, has not been kept in view by the two Courts, which has resulted in sheer misreading of the evidence on the record. As far as the findings of the learned court of appeal, the learned counsel states that the Court has not considered and discussed the evidence, but has non-suited the appellants Nos.1, 3 and 4, on the ground that they have failed to appear in the witness-box to prove Talb-i-Muwathibat, which according to the Court, is a personal act of the plaintiffs/pre-emptors, and additionally, all the plaintiffs including Babar Naseer have not sent the notice of Talb-i-Ishhad to respondent No.1, at his correct address. Mr. Shahzad Shaukat, states that as the decision of the Court of appeal, is legally untenable and the said Court has not considered any other evidence, therefore, the sanctity of concurrent findings of fact, cannot be attached to the impugned decisions, resultantly, the second appeal is competent and the decisions of the Courts below should be declared to be contrary to law. 4-A. I have heard the learned counsel for the parties. As regards the question, whether the notice of Talb-i-Ishhad was issued to respondent No.1, at his correct address, suffice it to say that from the documents and the material to which, the reference has been made by the counsel for the appellants, which could not be controverted by the respondents counsel, it is established that the notice was given on the correct address, and therefore, the reasoning of the Courts below to non-suit the plaintiffs on this ground, is invalid and cannot sustain. It may be pertinent to mention that the plaintiff/pre-emptor under section 13 of the Punjab Pre-emption Act, 1991, is only obliged to send a notice in the prescribed manner to the vendee, at his correct address and it is a matter of common knowledge that the acknowledgment due seldom reaches the sender, therefore, if the notice is sent on the correct address of the vendee by following the requirements of law, it shall be presumed to have been delivered to him; the plaintiff is under no obligation to examine the postman to prove that the notice of Talb-i-Ishhad has also been served upon the vendee. In any case, the plaintiff cannot be non-suited on this account. Therefore, the findings of the two Courts in this regard, are untenable and are hereby set aside.

5. For the question, as to what is the effect of the non-appearance of the other plaintiffs/pre-emptors, as their own witnesses, except Babar Naseer Cheema (P.W.10), in support of Talb-i-Muwathibat, it may be held that there is no specific provision either in the C.P.C. or the Qanun-e-Shahadat Order, 1984, requiring such personal appearance, except where the Court needs it under Order X, C.P.C. But at the same time, it is the settled law that where a "fact" is required to be proved through oral evidence, such evidence must be direct and of the primary source. Article 71 of the Qanun-e-Shahadat Order, 1984, provides the instances of the direct oral evidence regarding the proof of a "fact" and it may not be misconstrued that the statements of P.W.4 and P.W.10 does not fall within the purview of the said Article. However, the foundation of such direct evidence in my considered view in the case about the proof of the "fact" of Talb-i-Muwathibat, is the "person", who has made the Talb; it is he, who should appear enabling himself for the cross-examination of the other side. If the Talb has been made by the pre-emptor himself, he should come forward to be a witness and if it is by his authorized agent, the agent should appear and prove the fact, provided that if the pre emptor/agent cannot personally appear for the reason beyond his control, which must be established on the record. In forming my view, I am fortified by the cardinal rule of the law of evidence that the best available evidence should be brought before the Court. And by section 236 of the principles of the Mohammedan Law by D.F. Mulla 2006, which enunciates" that a person shall not be entitled to the right of pre-emption unless he had made Talb-i-Muwathibat and Talb-i-Ishhad. According to the Explanation II of the section, it is not necessary that such Talbs should be made by the pre-emptor in person. It is also sufficient, if it is made by the manager or a person previously authorized by the pre-emptor to make the demand. A demand made by a father or a brother of the pre-emptor is not sufficient, even if he has a right to pre-empt, unless he has been previously authorized to make the demand. Explanation IV of the above section provides that if there are two or more persons, who claim the right of pre-emption, each one of them, should make the demand unless one of them has also been authorized by the others to do so, and he makes the demand on their behalf also. From the above referred principles of Mohammedan Law, it can safely be deduced that the making of the Talbs is a special and a personal act of the pre-emptor, which though can be delegated, but the right of pre-emption is dependent upon the valid making of Talbs. The first Talb has to be made in a specific and particular manner as provided above and also to be proved in the same way e.g. if the demand has not been made by the pre-emptor himself, rather by his previously authorized agent, it is such agent, who shall appear in person in proof of the Talb-i-Muwathibat. It should not be that the pre-emptor appears and not the agent because the statement of the pre-emptor in such a case, shall be hit by the rule of direct or the hearsay evidence. This shall also be true for the position vice versa. However, the requirement of the above personal appearance shall only be dispensed with, if the pre-emptor or the agent, as the case may be, is prevented to appear for any cause beyond his control which has to be established on the record.

6. Applying the above rule to this case, P.W.10 Babar Naseer Cheema, who though is a co-plaintiff in the matter, but it is not established that he has filed the suit on behalf of the other plaintiffs, as an attorney or has made the Talbs on behalf of his brothers as a previously authorized agent. While appearing as P.W.10, it is not even stated by him. In the light of the above, I am constrained to hold that due to their non-appearance, the three plaintiffs have failed to discharge the onus, if they have made Talb-i-Muwathibat, the statements of P.W.4 and P.W.10 can only be used as a corroborative piece of evidence, but where the foundational evidence has not been led by them, the corroborative evidence has no much value.

7. Viewing the proposition from another legal angle, regarding the application of Article 129(g), which enables the court to draw a presumption in the eventuality of withholding the best evidence; the non-appearance of a party as his own witness, ordinarily would discredit his case, but if there is other evidence, which absolutely proves his case, the non-appearance shall not be fatal and no adverse inference should be drawn against him. However, where the "fact" is in the personal knowledge of a party himself and he is the primary source to prove the "fact", if such party, without any sufficient cause, abstains from appearance in the Court, the requisite inference shall be drawn. However, it depends upon the facts and circumstances of each case and is not an inflexible rule. Considering the present case on the touchstone of Article 129(g) of the order, it may be mentioned that according to the case of the plaintiffs, set out in the plaint, all of them were present when they learnt about the sale and made Talb-i-Muwathibat; as per the statement of P.W.10, Babar Naseer Cheema and P.W.4 the informer, when the sale was disclosed, all the plaintiffs simultaneously asserted the Talb-i-Muwathibat and the time was 9-30 and it was 14-10-1991; it may be relevant to mention that it was Monday and thus was a working day; may be Babar Naseer, who is a non-practicing lawyer, was present at the house, but it not proved that Manzar Naseer, who is an Income Tax Inspector, was also there, sitting in the Veranda as alleged, in all probability he should have been in the office, rather at home; besides, according to P.W. Humayon Naseer is not the resident of the Satellite Town, where the alleged first Talb was made, rather he resides at Civil Lines Jhang; he too has not appeared in person to establish his presence at a place different than his place of residence at 9-30 a.m., where the Talb-i-Muwathibat is stated to have been made; it should also have been established, as to what was the avocation of Mr. Riffat Naseer, the 4th plaintiff and how can he also was present at given time and venue; all these facts were within the personal knowledge of the plaintiffs, therefore, they should have appeared personally to prove these, so that the respondents could have the opportunity to cross-examine them and to extract the inconsistency in these statements. Thus on account of the failure on the part of the three plaintiffs, the due inference of withholding the best evidence, should be drawn against them.

8. This petition is liable to be dismissed on another legal point. According to the judgments cited by the counsel for the respondent reported as Akbar Ali Khan v. Mukamil Shah and others 2005 SCMR 431, the law now stands settled that the pre-emptor has to mention the date, time and the venue of making the Talbs in the plaint. Reliance can also be placed in this behalf on the following judgments as well:-- Abdul Hakeem v. Mst. Jannat Bibi 2005 SCMR 1228, Hakim Ali and others v. Ghulam Rasul and another 2004 YLR 1402, Muhammad Mansha v. Shamim Akhtar and 2 others 2004 YLR 1430, Akhtar Nawaz v. Muhammad Nazir and others 2005 YLR 77 and Muhammad Yousuf v. Muhammad Rafique and others PLD 2006 Lail.

39. But in the plaint, in paragraph No.6, the appellants-plaintiffs have only given the date and the name of informant but have not specified the time, the venue, where such disclosure was made and the name of the persons comprising of alleged Majlis, in which the first Talb was made. These facts have also not been mentioned in the notice of Talb-i-Ishhad. The learned counsel .for the appellants by relying upon the judgment reported as Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410, states that the pre-emptor is not required to state the details in the manner that the time and place of making Talb-i-Muwathibat should also be given. I am afraid, though this judgment is latter in time, but has been passed by the two Honourable Judges of the Supreme Court, in which the former judgment has not been considered, while the judgment referred to as Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431, is by a Larger Bench, thus, in such circumstances, I am bound by the said judgment. In the light of above, the suit of the plaintiffs, except Babar Naseer Cheema, is liable to be dismissed for having failed to prove the Talb-i-Muwathibat on account of their non-appearance as the witnesses, and whereas qua all the plaintiffs, for the reasons that time and venue of the Talb-i-Muwathibat as was required to be mentioned in the plaint, has not been specified. Therefore, this appeal has no merits and may be for some additional reason given by this Court, the same is hereby dismissed. M.B.A./H-16/L Appeal dismissed.