2017 PLP 463 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

This judgment will dispose of C.R. No.763/2011, C.R. No.762/2011 C.R. No.726/2016 and C.R. No.727/2016, which are between the same parties and common questions of law as well as facts are involved therein. However, reference point will be C.R. No.763/2011.

2. In concision, the facts of the case are that Ali Mohammad, present petitioner had purchased chunk of property through oral sale mutations Nos.795 and 796 dated 25.03.2008 and the respondent through two separate suits bearing Nos.118/2008 and 119/2008 pre-empted the same while claiming to have fulfilled requisite demands besides alleging his superior pre-emptive right qua the petitioner. Both the suits were independently tried by the learned Trial Court and the same were dismissed while answering issue qua performance of requisite demands against respondent through separate judgments and decrees of even date i.e., 11.11.2010, which were further assailed by respondent through Civil Appeals Nos.119/2010 and 153/2010 before the learned Lower Appellate Court, who partially accepted both the appeals vide judgments and decrees dated 26.02.2011 while equally sharing the property among parties under the mandate of provision of Section 20 of the Punjab Pre-emption Act, 1991. The petitioner/vendee by filing C.R. Nos.762 and 763 of 2011 assailed the impugned judgments and decrees whereby to the extent of half of the property involved therein, both the suits were partially decreed in favour of respondent/pre-emptor, whereas, the latter also impugned the same through preferring time barred rest of two Civil Revisions through which his suits to the extent of remaining half land were partially dismissed.

3. Arguments heard. Record perused.

4. The perusal of plaints instituted by respondent/pre-emptor reveals that both mutations Nos.795 and 796 dated 25.03.2008 were attested in favour of petitioner/vendee on one and the same day i.e. 25.03.2008. The study of both the plaints reveals that qua the sales under pre-emption involved therein a single information was allegedly communicated by Muhammad Latif (PW) to respondent/pre-emptor before Muhammad Siddique (PW) and the former spontaneously performed the first demand in the said Majlis, which was followed by issuance of notice Talb-i-Ishhad through registered post A.D, but it was not received by petitioner/vendee. The stance of respondent/pre-emptor regarding performance of Talbs was specifically denied by petitioner/ vendee through submission of written statement as well as his deposition being DW in both the suits.

5. So far as the fulfillment of second demand is concerned, it is noticed that when respondent/pre-emptor pleaded in his plaint that notices were not delivered to petitioner/vendee rather he refused to receive the same, in such an eventuality heavy onus was upon him to prove that he had not only dispatched the said notices through registered post and it was also sine qua non for him to prove that petitioner refused to receive the same. Admittedly, in the case in hand, Postal Receipt Clerk was not examined by respondent/pre-emptor, whereas, Noor Ahmad, Postman was produced in both the cases as PW4, who deposed the same words to words in both the suits and perusal of his testimony reveals that he did not depose single word that he had tried to deliver registered post containing notice Talb-e-Ishhad to petitioner/vendee, rather he only stated that report (Ex.P2) was endorsed by him, which was accompanied by Ex.P3, whereas, he conceded in his cross-examination that neither the report was signed by him nor he visited the residence of petitioner/vendee to deliver the registered post. His statement-in-chief as well as cross examination recorded as PW4 in both the cases word to word is similar and is reproduced hereunder: After having a glance over said statement, it is straightaway noticed that respondent/pre-emptor failed to prove that registered post containing notices Talb-e-Ishhad was ever served upon petitioner/vendee or he refused to receive the same. In this view of the matter, I am of the view that the learned Lower Appellate Court after misinterpreting the evidence on the record erred in law while partially decreeing the suits in spite of that respondent failed to prove performance of requisite second Talb as per law, which was sine qua non to succeed in a suit for pre-emption and the findings arrived at by him are reversed.

6. Resultantly, C.R. No.763 as well as C.R. No.762 of 2011 filed by petitioner/vendee are hereby allowed, whereas, connected C.R. No.726 and C.R. No.727 of 2016 preferred by respondent/pre-emptor are hereby dismissed and while setting aside the impugned judgments and decrees passed by the learned Lower Appellate Court, judgments and decrees delivered by learned Trial Court, whereby suits for possession through pre-emption were dismissed are restored. The parties to bear their own cost. MWA/A-5/L Order accordingly.