P L D 2021 Lahore 52 (PLP)

SHAHID WAHEED, J.

The subsequent vendee has brought this application under Section 115, C.P.C. to seek revision of the appellate decrees issued by the Addl. District Judge, Bhakkar through his consolidated judgment dated 27th of March, 2010 whereby the decree dated 12th of April, 2007 of the Trial Court was reversed and suit of the plaintiff, respondent No.1 herein, for possession through pre-emption was decreed.

2. The facts of the present case paint a sordid picture of collusiveness, misrepresentation and misapplication of law. Dispute in this case related to the land measuring 8-Kanals situate in Chak No.51/TDA, Tehsil and District Bhakkar which was owned by one Muhammad Amin. This land was sold to defendant No.1, namely, Abdul Aziz (respondent No.2 herein) vide mutation No.492 dated 21st of September, 2002 (Exh.P5). This sale was sought to be pre-empted by the plaintiff on the ground of his superior right of pre-emption with the assertion that he had made requisite Talbs in accordance with the law. On 2nd of January, 2003 the plaintiff (respondent No.1 herein) impleading Abdul Aziz as defendant instituted a suit seeking decree for possession of the above stated land through pre-emption. At trial, the present petitioner filed an application under Order I, Rule 10, C.P.C. for his impleadment as defendant in the suit on the ground that he had purchased the suit land from Abdul Aziz on 22nd of October, 2002 for a consideration of Rs.175,000/- vide Roznamcha Waqiati dated 22nd October, 2002 (Exh.D7) and mutation No.495 (Exh.D1) which was attested on 9th of June, 2003. This application was allowed and consequently the petitioner was impleaded as defendant No. 2 in the suit.

3. Defendant No.1, Abdul Aziz in his written statement denied the claim of the plaintiff with the assertion that he had not made any demand of pre-emption in accordance with the law. On the other hand, present petitioner also contested the claim of the plaintiff on the ground that he had not made any Talb in respect of the sale made in his favour. The divergent stances of the parties, led the Trial Court to frame issues and invite evidence thereon. Accordingly, the plaintiff in support of his claim produced oral as well as documentary evidence whereas defendant No.1, Abdul Aziz neither produced any evidence nor cross-examined the witnesses of the plaintiff. The suit of the plaintiff was, however, contested by the present petitioner. He also tendered oral and documentary evidence before the Trial Court.

4. One of the material questions to be determined in this case was whether the plaintiff had fulfilled the requisite Talbs under the law. This question was the subject matter of issue No.1 and onus to prove thereof was upon the plaintiff. On consideration of the matter, the Trial Court decided this issue against the plaintiff. The second important issue was whether the plaintiff had got cause of action to file the suit. This was issue No.3 and was decided against the plaintiff on the basis of findings returned on issue No.1. It is to be noted that the Trial Court in respect of issue No.3 has returned its findings in paragraph No.15 of its judgment, which consists of three lines and it is full of contradictions. The finding of the Trial Court is that in view of my finding on issue No.1, plaintiff has superior right of pre-emption being Shariek so he has got cause of action to file the suit whereas the conclusion is that issue is decided against the plaintiff . It appears that the mention of the words plaintiff has superior right of pre-emption being Shariek so he has got cause of action to file the suit was a clerical error as question of superior right was subject matter of issue No.2, whereas, issue No.1 pertained to making of Talbs which was decided against the plaintiff. This aspect of the matter was neither considered nor corrected by the Appellate Court nor did it give its own findings on issue No.3. This omission is one of the reasons which pursuaded me to examine this case under Section 115(1), C.P.C. The other material issue was issue No.7-A to the effect that whether the present petitioner (defendant No.2 in the suit) was bona fide purchaser of the suit land. The Trial Court in its findings declared that the defendant No.2 was not bona fide purchaser. The findings returned by the Trial Court on other issues are not relevant and thus, the same were not brought under discussion here. It is, however, suffice to say that on the basis of findings on issues Nos. 1, 3 and 7-A, the suit was dismissed by the Trial Court vide judgment and decree dated 12th of April, 2007.

5. The plaintiff thereupon questioning the findings in respect of issue No.1 preferred an appeal before the Additional District Judge, Bhakkar whereas defendant No.2 also preferred a separate appeal and thereby challenged findings only in respect of issue No.7-A. Both the appeals were consolidated. During appeal defendant No.1, Abdul Aziz appeared before the Appellate Court and made statement on oath admitting the claim of the plaintiff and stated that he had no objection on acceptance of appeal. On the basis of this statement appeal of the plaintiff was allowed whereas appeal of the present petitioner was dismissed with the observation that he was not bona fide purchaser. Two decrees were issued through consolidated judgment dated 27th of March, 2010. So, this revision.

6. The plaintiff-pre-emptor, at the outset, has raised a preliminary objection with regard to locus standi of the present petitioner. It is argued that upon dismissal of his appeal, which was limited only to the point that findings returned by the Trial Court on issue No.7-A was illegal, and particularly when defendant No.1 had conceded the claim of the plaintiff, the present petitioner cannot be allowed to maintain the instant revision. I will address this objection in the later part of this judgment. However, before proceeding further, it would be pertinent to state here that this case appeared to me the one where the plaintiff and defendant No.1 had joined their hands so as to defeat the rights of the present petitioner and thus, I thought it prudent to examine the decrees of the Courts below under Section 115(1), C.P.C. and accordingly asked learned counsel for the plaintiff -pre-emptor to show as to how the requirements of Talbs were made and proved and also how the plaintiff had got cause of action to file the suit. Learned counsel for the plaintiff-pre-emptor accordingly took me to the contents of the pleadings and the evidence led before the Trial Court and also the statement of defendant No.1 whereby he conceded the claim of the plaintiff. The pith and substance of his argument was that since defendant No.1 had conceded the claim of the plaintiff, there was no need of any evidence to prove the admitted facts, and secondly, minor discrepancies in the statements of the witnesses cannot be made basis to non-suit the plaintiff-pre-emptor. A

7. In terms of civil law the expression cause of action for the purposes of suit for possession under the Punjab Pre-emption Act, 1991 means essential facts constituting the right upon the making of demands of pre-emption by the pre-emptor in the prescribed manner and its refusal by the vendee. In fact it refers to the facts upon which the pre-emptor asks the Court to arrive at a conclusion in his favour. It was thus, vital for the plaintiff to prove the making of Talbs (demands of pre-emption) in accordance with the law so as to establish that he had got the cause to institute the suit and to claim decree for possession of suit land through pre-emption. In the present case two transactions of sale were involved. Through the first transaction the land stood transferred in the name of defendant No.1 Abdul Aziz vide mutation No.492 dated 21st of September, 2002 (Exh.P5), whereas the second transaction pertained to oral sale allegedly made on 22nd of October, 2002 in favour of present petitioner. Leaving aside the sale made in favour of present petitioner, it was to be, firstly, seen as to whether the pre-emptor-plaintiff had made Talb-i-muwathibat in accordance with the law in respect of sale incorporated in mutation No.492 dated 21st of September, 2002 (Exh.P5). The plaintiff pleaded that qua this sale, no public notice was issued and thus he got knowledge thereof on 11th of December, 2002 at 12.00 noon through Ghulam Essa in the presence of Muhammad Husain; and, that upon getting information a declaration to exercise right of pre-emption was immediately made which was followed by the notice of Talb-i-Ishhad dated 12th of December, 2002. This plea cast a duty upon the plaintiff to prove two facts. Firstly, that in respect of mutation No.492 no public notice in terms of section 31 of the Punjab Pre-emption Act, 1991 was given; and secondly, the date, time and place where Talb-i-muwathibat was made. According to section 31 of the Punjab Pre-emption Act, 1991 the Officer attesting the mutation of sale shall, within two weeks of the attestation, give public notice in respect of such attestation and this notice shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of the village or place where the property is situated. Presumption of regularity, though rebuttable, is attached to all official acts. The plaintiff nevertheless did not make any effort to rebut the said presumption as neither the witnesses who appeared on behalf of the plaintiff stated any word about non-compliance of the provision of Section 31 of the Punjab Pre-emption Act, 1991 nor any document was tendered in evidence to rebut the above stated presumption. It would, therefore, be presumed that the plaintiff-pre-emptor had due knowledge of the attestation of sale mutation No.492 within two weeks from the issuance of public notice under section 31 of the Punjab Pre-emption Act, 1991. It is an admitted fact that the mutation No.492 was attested on 21st of September, 2002, whereas, the alleged declaration to exercise right of pre-emption was made on 11th of December, 2002. This declaration cannot be construed a valid jumping demand of pre-emption within the contemplation of Explanation-I to subsection (1) of section 13 of the Punjab Pre-emption Act, 1991 which provides that Talb-i-muwathibat means immediate demand made by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption. A B

8. There is another good ground to hold that the plaintiff had not made Talb-i-muwathibat in accordance with the law. The plaintiff in paragraph No.3 of the plaint maintained that he got knowledge of the sale of the suit land on 11th of December, 2002. On the other hand when he appeared as his own witness before the Trial Court on 9th of April, 2005 as PW-1 he stated during the course of examination-in-chief that he got knowledge of the sale of suit land 2 years, 3 months and 18 days ago. According to this statement the date of getting knowledge of the sale was 23rd of December, 2002, which did not tally with the one mentioned in paragraph No.3 of the plaint. Learned counsel for the plaintiff made an attempt to overcome this contradiction by making reference to different precedents and stated that this being a mathematical or calculation error could not be made basis to hold that Talb-i-muwathibat was not made in accordance with the law. This argument is not convincing. The right of pre-emption being strictissimi juris requires strict proof of making Talbs. Any contradiction between the contents of plaint and statement of witnesses eclipses the right of pre-emption. The above contradiction cannot be ignored and it leads to the conclusion that Talb-i-muwathibat was not made in the prescribed manner. B

9. There is yet another aspect of the matter with respect to making of Talb-i-muwathibat. One of the members of the alleged Majlis, that is to say, witness of Talb-i-muwathibat was Muhammad Hussain. He appeared before the Trial Court as PW-3. This witness in his examination-in-chief stated as follows:- The above referred statement indicates that the plaintiff did not make immediate declaration to exercise his right of pre-emption upon getting information of sale but instead deferred it till the next day, which was fatal to his claim of making valid Talb-i-muwathibat.

10. The second Talb which was required to be made and proved by the plaintiff was Talb-i-Ishhad. It was maintained by the plaintiff that on 12th of December, 2002 notice of Talb-i-Ishhad attested by two truthful witnesses was sent to the vendee-defendant No.1. The defendant No.1 in his written statement had denied the claim of the plaintiff with respect to making of Talb-i-Ishhad. The record of the case indicates that defendant No.1 after filing contesting written statement did not join the proceedings of trial. This absence was, in no way, beneficial to the plaintiff because for obtaining decree he had to prove by convincing and reliable evidence that he had met the requirements of Talb-i-Ishhad. The law with respect to making of Talb-i-Ishhad is contained in subsection (3) of section 13 of the Punjab Pre-emption Act, 1991 which envisages that where a pre-emptor has made Talb-i-muwathibat, he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise right of pre-emption. It means that Talb-i-Ishhad shall be made by (a) written notice; (b) attested by two truthful witnesses; (c) sent under registered cover; and (d) acknowledgment due. These four formalities are mandatory where the facility of post office is available. Admittedly in the present case, facility of post office was available to the pre-emptor and, therefore, onus was on him to prove that while making Talb-i-Ishhad said formalities were strictly observed but on the contrary neither any of the witnesses, who appeared on behalf of the pre-emptor, stated that notice was sent along with acknowledgment due nor acknowledgment due card was produced before the Trial Court. Such default as per settled principle1 was fatal. Notwithstanding the above, the plaintiff also had to produce evidence, including postman to prove that in fact notice was personally served upon the vendee or that he refused to accept notice, which was sent at his correct address.2 The plaintiff did not even meet this requirement of the law, then the conclusion which could be drawn that the foundational facts stated in the plaint were all false and the plaintiff was guilty of making misrepresentation before the Court. E

11. Upon noticing that the plaintiff had misrepresented the foundational facts constituting cause of action, I asked learned counsel for the plaintiff as to how in the attending circumstances of the case a decree as prayed for in the plaint could be issued. He replied that since defendant No.1 at the stage of appeal had accepted the right of the plaintiff, there was no need to prove making of demands of pre-emption (Talbs); and that, instant revision was not competent as the Appellate Court had issued decree with the consent of the plaintiff s vendee (that is, defendant No.1). This reply sans merit. It has been proved that upon failure of the plaintiff to make demands as per the law, his right of pre-emption had been extinguished. Law has not granted any power to any Court to condone any deficiency or deviation in the matter of demands of pre-emption or to show any laxity in the matter.3 The question then is whether in these circumstances the right of the plaintiff-pre-emptor could have been revived at the appellate stage by the conceding statement of defendant No.1. The answer to this question is in the negative for that firstly, the making of demands for pre-emption in a particular prescribed manner gives occasion for and forms the foundational facts constituting cause of action in a pre-emption suit which has no relation whatever to the defence that may be set up by the vendee; secondly, since the first demand of pre-emption (Talb-i-muwathibat) was not made before defendant No.1, he could not make any statement about the veracity of the facts related to it, and even if he did make such a statement, its status would at best be of hearsay and the issuance of a decree on the basis of such evidence would be against justice, good conscious, and equity; and thirdly, the assertions of the plaintiff with regard to second demand of pre-emption (Talb-i-Ishhad) were also proved to be false as the notice was neither sent in the prescribed manner nor it was served upon defendant No.1. The admission of these false facts by defendant No.1 had no legal status as no illegal act can be held justified by the concession of the opposite party or in other words a false claim cannot be declared valid by the statement of the defendant and if this is allowed to happen, it would encourage fraud which in turn would create chaos in the society which is not commendable. Upshot of the discussion is that as the entire foundation of cause of action was false, the suit could not succeed even as regards defendant No.1 admitting the plaintiff s claim

4. The Appellate Court thus, misdirected itself while accepting the conceding statement of defendant No.1 and as a consequence issued an illegal decree in the exercise of its jurisdiction with material irregularities. So this revision cannot be refused on the ground that the decree under challenge is a consent decree and that objection with regard to the petitioner s locus standi also loses its significance as this Court has examined the said decree under section 115(1), C.P.C. Resultantly, by reversing the findings of the Appellate Court on issue No.1, it is held that the plaintiff had no cause of action to bring the suit. E F

12. I cannot proceed further without observing here that the absence of defendant No.1 during trial and subsequently his admission before the Appellate Court was understandable as his no interest was at stake for that he had already sold the land to the present petitioner; and that, in fact the statement of defendant No.1 made before the Appellate Court was sufficient to draw the conclusion that he had colluded with the plaintiff so as to defeat the right of the present petitioner. Since the plaintiff by manipulating defendant No.1 frustrated the legal rights of the petitioner-defendant No.2, he cannot be permitted to take advantage of his wrong or manipulation. This is exactly the spirit of legal maxim, nullus commodum capere potest de injuria sua proprio. F

13. Now I address issue No.7-A viz, whether the petitioner was the bona fide purchaser of the suit land. The claim of the petitioner was that defendant No.1 namely, Abdul Aziz orally sold the suit land to him on 22nd of October, 2002 vide Roznamcha Waqiati (Ex.D7), that is, prior to the suit which was instituted by the plaintiff on 2nd of January, 2003. The correctness of this claim could be easily determined by taking into account the defence set up by the defendant No.1 in his written statement and his evidence. Defendant No.1 although in his written statement had denied the sale in favour of the petitioner yet this denial had no legal value as defendant No.1 did not join the trial after filing the written statement nor did he give any evidence to prove the contents of his written statement. In these circumstances, I have to look at the objection to the sale in the light of the plaintiff s statement. The plaintiff in the course of his cross-examination as P.W.1 had admitted the sale in favour of the petitioner but his objection was that since it was incorporated in the revenue record vide mutation No.495 (Ex.D1) dated 9th of June, 2003 during the pendency of his suit, the petitioner could not be declared bona fide purchaser. This objection unequivocally suggests that the oral sale made in favour of the petitioner did fulfill the ingredients of sale. It would thus, mean that the petitioner-defendant No.2 had acquired sufficient interest in the suit land on the basis of oral sale prior to the date of filing of suit. It is true that this sale was not made in accordance with the provisions of the Transfer of Property Act, 1882 but nevertheless it was valid in terms of section 2(d) read with section 13 and section 30 of the Punjab Pre-emption Act, 1991 and could be pre-empted. The attestation of this oral sale through mutation No.495 (Ex.D1) dated 9th of June, 2003 was just a consequential step so as to bring it in conformity with the provisions of the Transfer of Property Act, 1882 or for the purposes of the Punjab Land Revenue Act, 1967 and other allied laws. In the wake of above, it could not be held that the petitioner was not bona fide purchaser and consequently findings of the Courts below in respect of issue No.7-A are hereby reversed. It is to be noted that reversal of findings on issue No.7-A provides locus standi to the petitioner to maintain this petition and also another ground to dismiss the suit following the principle settled in Din Muhammad s case5 and Ghulam Sarwar s case6 as the land prior to institution of the suit, had been transferred by way of oral sale in favour of the petitioner and to which no demand of the pre-emption (Talb) was made by the plaintiff.

14. In the result this revision is allowed. The judgment and decrees dated 27th of March, 2010 of the Addl. District Judge, Bhakkar, is set aside and consequently the judgment and decree dated 12th of April, 2007 of the Trial Court dismissing the suit of the plaintiff is restored with the clarification/modification that the plaintiff had no cause of action to bring the suit and also the present petitioner/ defendant No.2 was a bona fide purchaser of the suit land. No order as to costs. KMZ/M-138/L Order accordingly. 1 E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) Abdul Qayyum v. Muhammad Rafique (2001 SCMR 1651) Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) Muhammad Hayat v. Muhammad Jaffar (2009 CLC 259) Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309) 2 Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) Khan Afsar v. Afsar Khan and others (2015 SCMR 311) 3 Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086) 4 Habib Khan v. Mst. Taj Bibi and others (1973 SCMR 227) 5 Din Muhammad v. Abrar Hussain and another (PLD 2009 SC 930) 6 Ghulam Sarwar v. Rukhsana Kausar and others (PLJ 2012 Lahore 442)