2022 PLP 1628 (CLC)

MUHAMMAD SAJID MEHMOOD SETHI, J.

This consolidated judgment shall decide instant appeal along with following connected cases as common questions of law and facts are involved in these cases:-

1. C.R. No.3773 of 2012 titled Aslam Parvez (deceased) through legal heirs v. Javed Akhtar and others

2. C.R. No.3774 of 2012 titled Aslam Parvez (deceased) through legal heirs v. Javed Akhtar and others

2. Brief facts of the case are that Aslam Parvez / predecessor of appellants instituted a suit for possession through pre-emption against respondents qua the suit land, detailed in Para 1 of the plaint. It was alleged that one Aslam Javed secretly sold the suit land to respondents through Mutation No.1412 dated 26.02.2000 against consideration of Rs.120,000/- Aslam Parvez came to know about said transaction on 15.06.2000 at 8:00 a.m., when he was sitting in the house of Muhammad Ishaq son of Sajwar along with witnesses namely Muhammad Abbas son of Jehan Khan and Muhammad Aslam son of Sharif, through Muhammad Amin son of Wali Muhammad. It was further alleged that Aslam Parvez immediately pronounced his superior right of pre-emption through jumping demand in the same Majlis, being co-sharer in the Khata. On the next day i.e. 16.06.2000, at about 6:00 p.m., Aslam Parvez along with witnesses approached respondents along with sale consideration showing his intention to purchase the suit property but his request was not acceded to. Notices of Talb-i-Ishhad were sent to respondents through registered A.D. on 17.06.2000 and 19.06.2000, which were allegedly accepted by respondents. The suit was contested by respondents by filing written statement. Out of diverse pleadings of the parties, learned Trial Court framed issues. After recording of evidence and hearing arguments of learned counsel for parties, learned Trial Court decreed the suit vide judgment and decree dated 21.05.2011. Feeling dissatisfied, respondents preferred appeal before learned Appellate Court, which was accepted, aforesaid judgment and decree was set-aside and suit was dismissed vide judgment and decree dated 02.10.2012. Hence, instant appeal.

3. Learned counsel for appellants submits that impugned judgment and decree is the result of misreading and non-reading of evidence brought on record. He adds that performance of all Talbs was proved successfully through cogent and confidence inspiring evidence but the same was not rightly appreciated by learned lower Appellate Court. He further submits that minor discrepancies in the statements of witnesses do not disentitle appellants to get a decree of pre-emption. In the end, he submits that impugned judgment and decree is not sustainable in the eye of law. He has referred to Allah Bakhsh and another v. Falak Sher (2004 SCMR 1580), Inayat v. Nadar Khan (2007 SCMR 1702), Bashir Ahmed and another v. Mushtaq Ahmed (2007 SCMR 895), Abdul Latif alias Muhammad Latif alias Babu v. Dil Mir and others (2010 SCMR 1087), Muhammad Amin v.Attiq-ur-Rehman and another (2005 CLC 1772) and Sardar Khan v. Bashir Ahmed (2010 CLC 124).

4. Conversely, learned counsel for respondents defends the impugned judgment. He has referred to Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), Sultan v. Noor Ashgar (2020 SCMR 682) and Bashir Ahmed v. Muhammad Zaman (2021 SCMR 134).

5. Arguments heard. Available record perused.

6. The star witnesses of the case are Muhammad Amin, the informer (PW-5), Muhammad Aslam, (PW-6) and Aslam Parvez, pre-emptor / plaintiff (PW-7). Perusal of testimonies of PWs 5 and 6 reveals that they did not specifically disclose the date when pre-emptor received information about disputed transactions and made Talb-i-Muwathibat. PW-6 also did not disclose the time when whole incidence happened. These witnesses in general terms state that about four years, nine months and twenty four days ago, Aslam Parvez was informed about disputed sale. In cross-examination, PW-5, again generally deposed about date of knowledge of sale transaction by stating that it came to knowledge about 10-years, one month and few days ago. Likewise, PW-6 deposed that he did not know the date of sale of disputed land. Needless to say that law insists on utmost promptitude in the making of first Talb i.e. Talb-i-Muwathibat. To prove factor of time, convincing, reliable and consistent statements of the witnesses are mandatory requirement of law, as from the date and time of making Talb-i-Muwathibat, the period for sending notice of Talb-i-Ishhad is calculated. It is well-settled that not only mentioning of date, time and place of performance of Talb-i-Muwathibat in the plaint is legal requirement, but also the plaintiff is legally bound to prove the same through cogent and trustworthy evidence before the court, because the contents of plaint can never be considered as evidence and by mentioning these details in the plaint, the plaintiff cannot be absolved from the duty to prove the same through reliable and truthful evidence. In the light of foregoing, burden of proving Talb-i-Muwathibat has not been discharged in accordance with Section 13 of the Punjab Pre-emption Act, 1991. Talb-i-Muwathibat is the foundation for exercise of right of pre-emption. Without proving performance of Talb-i-Muwathiwabt, requirement of Talb-i-Ishhad, even if fulfilled, would be of no consequence. Reliance is placed upon Atiq-ur-Rehman through (Real Father) and another v. Muhammad Amin (PLD 2006 Supreme Court 309), Feroz Khan v. Mst. Malik Zaro (2016 YLR 811), Mst. Amna Bi and 5 others v. Mst. Naseem Akhtar (2018 CLC 748) and Wali Muhammad through L.Rs. and others v. Ghulam Nabi (2018 MLD 1044). There are other shortcomings / contradictions in the statements of these PWs. PW-5, in cross-examination, deposed that he informed Aslam Parvez about all the three transactions simultaneously and he announced his right of pre-emption. However, subsequently stated that he separately informed Aslam Parvez about three transactions and further stated that his second version may be taken as correct. PW-6, in his cross-examination, admitted that PW-5 gave information about all the three transactions with their consideration amounts in one sentence. PW-7 deposed that they went to the house of respondents on a Dala, however, he expressed his ignorance about the names of owner as well as driver of said vehicle, but thereafter, he disclosed name of owner of the vehicle as Khan Muhammad. PW-5 deposed that Aslam Parvez pronounced his superior right of pre-emption being co-sharer in the Khewat and joint irrigation source, however, PW-6 deposed that Aslam Parvez pronounced his superior right on the basis of co-sharer as well as personal need and inconvenience / disturbance caused by respondents. The afore-noted contradictions cannot be lightly brushed aside, particularly in a case of pre-emption where strict adherence to the requirements of law for making Talb-i-Muwathibat is necessary. These contradictions cannot be ignored, which lead to the conclusion that Talb-i-Muwathibat was not made in the prescribed manner and eclipse the right of pre-emption. Reference can be made to Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), Muhammad Tariq and others v. Abdul Razaq (2015 C L C 49), Umar Dad v. Muhammad Wahid and 3 others (2015 MLD 373) and Muhammad Bakhsh v. Faiz Muhammad and others (PLD 2021 Lahore 52).

7. Respondents in Para 6 of their written statement denied receipt of any notice of Talb-i-Ishhad duly attested by two truthful witnesses, however, admitted that they received empty envelope which did not contain any notice. There is no cavil to the proposition that plaintiff / appellant was required to prove the Talbs in accordance with law and he has to stand on his own legs and may not rely on the weaknesses or admissions of the defendant(s) to prove the whole claim. Even otherwise, aforesaid admission does not confirm that performance of Talb-i-Ishhad was made in accordance with law rather plaintiff / appellant was required to produce evidence including the Postman to prove that in fact notice of Talb-i-Ishhad was served upon respondents. Reference can be made to the cases of Bashir Ahmed and Sultan supra.

8. Needless to say that right of pre-emption is a practical right and essential conditions for exercise of such right must be proved strictly in accordance with law. Strict proof for observance of Talbs is necessary and failure of pre-emptor to do so would deprive him of success in getting a pre-emption decree. Even otherwise, right of pre-emption is a feeble right and evidence for exercise of such right, being oral, was required to be direct, confidence inspiring and duly supported by the witnesses. Reference can be made to Muhammad Anwar v. Muhammad Aslam (2021 SCMR 107), Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309) and Mohammad Rafique v. Gul Mohammad and others (2017 YLR 308).

9. In view of the above, instant appeal, along with connected revision petitions, being devoid of any merit, is hereby dismissed. No order as to costs. MQ/A-77/L Appeal dismissed.