2011 CLC 241 (PLP)

CH. SHAHID SAEED, J.

Through the instant civil revision the petitioner has challenged the impugned judgments and decrees dated 26-4-1994 and 7-12-1994 passed by the learned courts below by way of which suit for ejectment on the basis of pre-emption filed by respondent/plaintiff Rahim Bakhsh was decreed.

2. Briefly, the facts as leading to this civil revision are that the plaintiff Bashir Ahmad filed a suit for ejectment through pre-emption alleging therein that defendant No.2 Ghulam Jaffir was owner of the disputed property in Khata No.73. The plaintiff is also co-sharer in this Khata. The defendant No.1 Rahim Bakhsh purchased the suit property from defendant No. 2 along with the share in "Shamlat-Deh" against the consideration of Rs.5000 and mutation No.571 was attested on 17-3-1991. In order to avoid the complications of pre-emption, defendant No.1 has mentioned the price of suit property as Rs.8500 in the mutation while the original price was Rs.5000. When he came into the knowledge about the said transaction, he announced his right of pre-emption over the suit property. Thereafter he issued a notice to defendant No.1 showing his willingness to purchase the disputed property being co-sharer in Khata as such he has superior right of pre-emption over the suit property.

3. The suit was contested vehemently by defendant No.1 Rahim Bakhsh by filing written statement denying the averments made in the plaint. From the factual controversy appearing on the pleadings of the parties, the learned trial Court was pleased to frame nine issues including the relief. Thereafter both the parties were put to adduce their respective evidence and they produced oral as well as documentary evidence in order to prove respective versions. Learned trial Court vide judgment and decree dated 26-4-1994 decreed the suit. The said judgment and decree was assailed by the defendant No.1 before the learned appellate court which also met with the same fate vide judgment and decree dated 7-12-1994. Hence, this civil revision.

4. Learned counsel for the petitioner contends that as per Paragraph No.6 of plaint no date, time and place has been mentioned when it became into knowledge of plaintiff or informer. P.Ws. Riaz Hussain, Nazar Hussain and Bagoo told to the plaintiff regarding the sale of the property measuring 106 Kanals, 8 Marlas against consideration of Rs.5000. Further stated that the plaintiff badly failed to perform all the Talbs as is required under section 13 of the Pre-emption Act. Talb-e-Ishhad was performed after the statutory period, thus, the learned courts below have misread the record and passed the impugned judgments and decrees illegally and without lawful authority. Reliance is made upon "PLD 2007 Supreme Court 302" wherein it has been categorically mentioned that the plaintiff is bound to prove Talb-e-Muwathibat and Talb-e-Ishhad as no date, time and place of knowledge of sale and date of issuance of notice of Talb-e-Ishhad in the plaint has been mentioned. Learned courts below -extended undue benefit to the plaintiff while passing the impugned judgments and decrees in his favour. Thus, the same are liable to be set aside.

5. On the other hand, learned counsel for respondent opposed the arguments advanced by learned counsel for the petitioner and argued that the impugned judgments and decrees are based on confidence inspiring evidence produced by the respondent. Learned counsel referred "2000 SCMR 314 and 2000 SCMR 329" and stated that these are in favour of respondent, thus, learned courts below passed the decree in favour of plaintiff rightly in accordance with the judgments referred above.

6. I have heard the arguments of learned counsel for the parties and perused the record minutely.

7. The august Apex Court discussed in detail that date, time and place of information about the sale and performance of Talb-e-Muwathibat is necessary to be mentioned in the plaint for possession through pre-emption. As the suit was filed on 3-5-1991 and first decree was passed by the learned 'trial Court on 26-4-1994, therefore, an old law was not applicable. Learned trial Court erred in law in holding that the plaintiff was entitled to get possession through pre-emption. The version of both the courts below is illegal and against the decisions given by the august Supreme Court of Pakistan. This Court comes to the conclusion that Talb-e-Muwathibat was not properly mentioned in the plaint as has been declared by the apex Court in "PLD 2007 Supreme Court 302". There is no any evidence on record to explain the date, time and place of receiving information about the sale. If the plaintiff failed to prove Talb-e-Muwathibat then Talb-e-Ishhad has no importance. Even otherwise Talb-e-Ishhad has also not been proved as nothing has been mentioned that notice was served within the statutory period. So much so to prove the receipt of notice the Postman was not produced by the plaintiff. Learned counsel for the respondent failed to satisfy the court as he only referred above stated two judgments of the august Supreme Court of Pakistan which have also been discussed in detail by their Lordships in "PLD 2007 Supreme Court 302". I am of the considered view that the learned courts below have not exercised their jurisdiction in accordance with law given by the apex Court and did not apprise the evidence on record when the plaintiff totally failed to fulfill the requirements of section 13 of the Pre-emption Act. In these circumstances, instant civil revision is accepted and the impugned judgments and decrees dated 26-4-1994 and 7-12-1994 passed by learned courts below are set aside. Parties are left to bear their own costs. H.B.T./R-77/L Petition allowed.