2011 MLD 974 (PLP)

SHER MUHAMMAD KHAN, J.

Brief facts leading to the instant revision petition arc that petitioner filed a suit for possession through pre-emption against respondents in respect of suit property, fully described in the heading of the plaint. It was averred in the plaint that Mst. Mehr Zubana wife of Akbar Jan owned the suit land, who sold the same to respondent No.2, Nazar Khan for actual consideration of Rs.15,000 but to prevent petitioner from exercising her right of pre-emption exorbitant amount of Rs.1,20,000 has been entered in Mutation No.61 attested on 21-1-1992. The pre-empted land is in fact not worth of the value more than Rs.15,

000. After institution of the suit, respondent No.2 further alienated the suit property in favour of respondent No.1; hence on the application of petitioner, he was impleaded as defendant in the suit. The petitioner further averred in the plaint that she is co-sharer, contiguous owner and having joint special rights attached to the pre-empted land, such as right of appendages, right of way and discharge of water etc. The petitioner on getting knowledge on 22-5-1992 through her husband immediately expressed her desire to acquire the land by exercising her superior right of pre-emption and, sent witnesses to respondent No.2 and thereafter issued notice through registered post A.D to respondent No.2. On 24-6-1992, again through her husband; she gained the knowledge of the transfer of the pre-empted land in the name of respondent No.1, so immediately she expressed her intention to get the property by exercising her superior right of pre-emption and sent the witnesses to respondent No.1; she also sent notice through registered A.D. post to respondent No.1 on 25-6-1992. The respondents were asked to admit the rights of petitioner but they refused, which necessitated her to file pre-emption suit in the lower Court.

2. The respondents contested the suit and filed their written statements. The learned trial Court after framing issues, directed the parties to submit list of witnesses and produce their respective evidence. Petitioner in support of her plaint produced Muhammad Khan Branch Postmaster Mira Khel Bannu on 8-4-1993 as P. W.1, who produced dispatched receipt No.95 dated 25-6-1992 in the name of respondent No.1 which was delivered to him by obtaining his signature. Both the documents are Exh.P.W.1./1 and Exh.P.W.1/2. Registered receipt No.941 delivered to respondent No.2 was also produced as Exh.P.W.1/3 and photocopies of the registered record was exhibited as Exhs. P.W.1/4 to Exh.P.W.1/7. According to that record respondent No.2 received the registered post on 1-6-1992 and respondent No.1 on 29-6-1992. Patwari Halga Gul Daraz Khan was examined on 26-5-1993, 21-6-1993 and 14-2-1994 who exhibited documents from the Revenue Record consisting of record of rights from 1991-92, Mutation No.61 attested on 21-1-1992, Mutation No.109 attested on 24-6-1992, average one year and five years prices list prepared on the basis of attested mutations and Khasra Girdawari as Exh.P.W.1/1 to Exh.P.W.1/9 and Exh.P.W.1/D-1. Sarfaraz Khan booking clerk of the post office Bannu City appeared as P.W.3 and produced receipt of Registry No.941 dated 25-5-1992 as Exh. P. W.3/1.

3. Before recording complete evidence of the petitioner, respondents moved an application under Order VII Rule 11, C.P.C. and the learned/ trial Court after hearing arguments, accepted the same vide order dated 11-7-1994 and rejected the plaint of petitioner declaring it barred by time: The said order was impugned by the petitioner before learned District Judge, Bannu through appeal but the same was dismissed on 10-10-1994. Thereafter petitioner filed Revision Petition No.207 of 1994 before this Court, which was accepted on 26-6-1995 and the case was remanded back to the trial Court with observation that the suit in respect of second transaction of sale executed between respondents inter se is within time. The apex Court refused to grant leave to appeal vide order dated 3-6-1996 against the judgment of this Court.

4. The learned trial Court after remand, recorded the statements of petitioner as P.W.4, her husband Ayub Khan as P.W.5,.Shumiyaz Khan PW-6 and Naseem Khan as P.W.7, where after petitioner closed her evidence and respondent No.1's attorney Umar Zad recorded his solitary statement in rebuttal as DW.

1. The learned trial-Court again dismissed the suit of petitioner vide judgment decree dated 11-4-1997 on the ground of non-performance of talabs according to law. Petitioner again challenged the said judgment/decree of the trial Court by preferring appeal before the learned District Judge, Bannu, who again dismissed the appeal vide judgment/decree dated 11-2-1999.

5. Not losing her heart petitioner again filed Revision Petition No.42 of 1999 before this Court, which was again accepted on 11-6-2001 and the case was remanded back to the trial Court for framing the issue of limitation and provide opportunity to the parties to record their evidence to that extent only, if they so desire and thereafter suit may be decided on merits.

6. After remand the learned trial Court framed the following additional issue, "whether the suit of the plaintiff is within time?" The parties were asked to submit their lists of witnesses. On 5-9-2002 learned counsel of the petitioner submitted application requesting therein that he relies on the pre-remand evidence and does not wish to produce further evidence. However, attorney of respondent No.1 Umar Zad Khan recorded his statement on 12-9-2002 whereafter arguments were heard and the case was decreed vide judgment/decree dated 30-9-2002 on payment of Rs.1,20,000, in favour of petitioner.

7. This time respondent No.1 challenged the judgment/decree of the trial Court before District Judge, Bannu, who was pleased to entrust the same to the Court of learned Additional District Judge-III, Bannu for disposal. The appeal of respondent No. 1 was accepted vide judgment/ decree dated 21-5-2004 and suit of the petitioner was dismissed.

8. Feeling again aggrieved, petitioner filed Civil Revision No.249. of 2004 before this Court which was dismissed on 14-4-2010 for being filed beyond 90 days, the time provided by section 115, C.P.C.

9. The petitioner impugned the judgment of this Court dated 14-4-2010 before the apex Court through C.A No.511 of 2010, which was accepted and the judgment/order of this Court was set aside and the matter was remanded back to this Court with the directions to decide it afresh in accordance with the principles and law laid down therein.

10. I have heard learned counsel of the parties and scanned the entire record of the case with their valuable assistance.

11. Before discussing other issues I would like to first decide the question of limitation, in filing the instant revision petition. The record reveals that the appellate Court decided the case on 21-5-2004 and the petitioner filed application for obtaining its attested copy on 22-5-2004, which was provided on 11-8-2004 and revision petition was filed on 30-8-2004, therefore, in the light Of recent judgments of the apex Court delivered on the subject, by excluding the time consumed in obtaining the attested copies, the instant revision petition has been filed within time.

12. Now I will come to the facts of the case. Regarding performance of Talb-e-Muwathibat, petitioner has averred that she served respondent No.2 with a notice, allegedly scribed on 25-5-1992, which was annexed with the first un-amended plaint but has not been exhibited during evidence. In Para No.3 of the said notice it has been stated that "the petitioner gained knowledge of the sale transaction on 22-5-1992 and immediately, without any delay, she expressed her desire to exercise her superior right of pre-emption over the pre-empted land". The same paragraph has been repeated in subsequent notice sent to respondent No.1 on 25-6-1992, with the only difference that date of gaining knowledge i.e. 24-6-1992 and number of mutation i.e. 109 has been substituted. Rest of the paragraph is ditto copy of the earlier notice.

13. Both the above mentioned notices do not disclose the time and place of performing Talb-e-Muwathibat and source of receiving information regarding sale of the property.

14. Similarly, in Paras Nos.4 and 5 of the amended plaint the time and place of receiving information regarding sale transaction is missing, however, it has been added that she received information through her husband. Names of other witnesses present at the time of performing Talb-e-Muwathibat are also not mentioned. For ready reference the relevant paragraphs Nos.4 and 5 are reproduced herein below:--

15. Petitioner herself recorded her statement as P.W.4 and stated that during pendency of the pre-emption suit against respondent No.2, the disputed land was sold by respondent No.2 in favour of respondent No.1 and her husband was present in the village assembly where the mutation was attested, he came to his house and informed her at 12-00 noon. At that time Naseem Khan and Shumiaz Khan were also present in the house, she immediately expressed her intention to exercise her superior right of preemption and then sent P.Ws., Naseem Khan and Shumiaz Khan to respondent No. 1 to accept her claim but he denied and then he sent notice through her husband to respondent No.2, who is her attorney and her power of attorney is Exh. P. W.4/1.

16. In the above mentioned statement the petitioner did not disclose the date on which she was informed by her husband. She introduced P.Ws. Naseem Khan and Shumiaz Khan for the first time to be present at the time of performing Talb-e-Muwathibat for exercising her right of pre-emption. In her cross-examination she expressed her ignorance about the date, time and day of performance of Talb-e-Muwathibat against respondent No.2. She said that one Shafiullah was sent to respondent No.2 but the name of Shafiullah is not mentioned in the notice or the plaint nor he was examined as witness. The performance of Talb-e-Muwathibat against respondent No.2 has become irrelevant after attestation of subsequent Mutation No.109, in favour of respondent No.1; however, for scrutinizing veracity of petitioner, the above mentioned portion of her statement is relevant.

17. Against respondent No.2, the petitioner claimed to have per-formed Talb-e-Muwathibat with exact time at 12-00 noon on 24-6-1992, in presence of P.Ws Shumiaz Khan and Naseem Khan and similar is the statement of P.W.5 and other witnesses. P.W.6 and P.W.7 are contradicting each other regarding their presence at 12-00 noon in the house of the petitioner on 24-6-1992. P.W.6 in his examination in chief staled that at 12-00 hours he and Naseem Khan were present in the house of the petitioner and at that time P.W.5 Ayub Khan came and stated that respondent No.2 has sold his property to respondent No.1 and then petitioner announced to exercise her right of pre-emption. In cross-examination he stated that Muhammad Ayub is his uncle and they are living in separate houses and the distance between the two houses is less than one mile. He further stated that he came to the house of petitioner at 11-00 a.m. and Ayub Khan came at about 12-00 noon and Naseem Khan P.W.7 was also present because his house is situated near the house of petitioner.

18. P.W.7 Naseem Khan also admitted that Muhammad Ayub is his uncle but contradicted P.W.6 by stating that the house of Shumiaz P.W.6 was adjacent to the house of petitioner on 24-6-1992. He further contradicted P.W.6 by saying that he went to the house of petitioner at 12-00 noon and when he reached the house of petitioner Shumiaz was not present and he does not know that when Shumiaz came to the house of petitioner.

19. It has been held by the apex Court in the judgment delivered in the case of Muhammad Suleman v. Shaukat Ali 2009 SCMR 678 that pre-emption being a feeable right, formalities required for its exercise and enforcement must be strictly observed and there must be a clear proof of same on the record. In the case of Fazal Din v. Muhammad Anayat 2007 SCMR 1 it has been ruled that where pre-emptor having claimed to acquire knowledge of sale beyond the date of sale, pleaded making Talb-e-Muwathibat in general terms without specifying date and other necessary particular of Talb-e-Muwathibat, basic condition for exercising right of pre-emption would remain unproved; in such situation it would be essential for pre-emptor to prove correct date of knowledge and place of meeting in which he had announced for exercise right of pre-emption. Performance of Talb-e-Ishahad was second Talb, fulfilment of which depended upon the presence of Talb-e-Muwathibat. Unless date and place of making Talb-e-Muwathibat was specifically mentioned :n the plaint or proved through evidence, the performance of Talb-e-Ishahad could not be claimed to have been proved in terms of section 13(3) of Punjab Pre-emption Act, 1991. The same view has been followed consistently in the case of Mst. Saleem Akhtar v. Chaudry Shaukat Ahmad 2009 SCMR 673, wherein it has been ruled that it would be mandatory for a plaintiff in suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-e-Muwathibat and date of issuing the notice of Talb-e-Ishahad, otherwise plaintiff's suit deserved to be dismissed. In the case titled as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others, PLD 2007 Supreme Court 302, the manner of performing Talbs has been finally settled and it has been laid down that mentioning of date, time and place of knowledge of sale and date of issuing notice of Talb-e-Ishhad in the plaint is mandatory, because from such date the time provided by statute i.e. 14 days, could be calculated and if there was no mention of the above facts in the plaint then it would be very difficult to give effect fully to section 13(3) of Punjab Pre-emption Act, 1991 and there could be every possibility that instead of allowing letter of law to remain in force fully, pre-emptor might attempt to get latitude by claiming any date of performance of Talb-e-Muwathibat in his statement in Court and then on the basis of the same try to justify the delay if any, occurring in the performance of Talb-e-Ishhad.

20. Talb-e-Muwathibat means immediate demand 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. The words "immediate demand" put limitation on the prospective pre-emptor that he must express his intention immediately.

21. Keeping the above legal position in juxtaposition with notices, plaints and evidence of the petitioner there is no difficulty in arriving to the conclusion that the plaintiff failed to prove performance of Talb-e-Muwathibat in accordance with law, settled once for all by the August Supreme Court. In notice of Talb-e-Ishahad place, time and source of information has not been disclosed, in the plaint source has been introduced but time, place of receiving information and witnesses present at that time are not mentioned. P.W.6 and P.W.7 are at variance with each other regarding their presence on 24-6-1992 at 12-00 noon in the house of petitioner.

22. As far as Talb-e-Ishahad is concerned, the dispatch of notice and its receipt by respondents have been proved through evidence of P.W.1.

23. The petitioner had no superior right over the disputed property as compared to respondent No.2 but against respondent No. 1 her superior right of pre-emption is established from the Revenue Record.

24. As far as the question of limitation is concerned the original mutation was attested on 21-1-1992 and the suit was filed on 3-6-1992, at that time the period of limitation provided in section 31 of N.-W.F.P. Pre-emption Act, 1987 was one year which was later on amended through N.-W.F.P. Act No.X of 1992 and reduced to 120 days from one year. The amendment was given effect from 31-12-1992, therefore, the original suit filed by petitioner against respondent No.2, was within time.

25. After attaining knowledge of the subsequent mutation attested by respondent No.2 in favour of respondent No.1, petitioner claims to have performed Talb-e-Muwathibat on 24-6-1992 and sent notice on the following day and immediately submitted application on 8-7-1992 for impleading respondent No. 1 as defendant in the suit. Her application was allowed on 28-7-1992 and amended plaint was filed on 19-9-1992, therefore, the subsequent amended plaint is also within time.

26. The next question which requires consideration is the validity of notices scribed by husband of the petitioner on her behalf as attorney. Admittedly, the notices were scribed on 25-5-1992 and 25-6-1992 which did not bear the thumb impression or signature of the petitioner. Petitioner has authorized her husband on 25-5-1992 for filing pre-emption suit, wherein all powers, required for filing of the pre-emption suit has been bestowed upon him. Perusal of the contents of power of attorney Exh.P.W.4/1 reveals that specifically powers of performing of Talb-e-Ishahad was not given to him but in my opinion when the petitioner herself came to the Court, recorded her statement in support of her suit and also acknowledged the power of attorney given to her husband, then it may be presumed that the powers exercised by the husband has been ratified by petitioner. Such ratification would validate, for all legal purposes, the acts, omissions and commissions of the agent.

27. In the light of what has been discussed above, the petitioner has failed to prove performance of Talb-e-Muwathibat which is not mere technicality vis-a-vis superior right of pre-emption. Right of pre-emption could not be activated unless Talb-e-Muwathibat was performed in accordance with law, which is more important than the superior right of pre-emption. The superior right of pre-emption might exist but is useless, unless Talb-e-Muwathibat is proved, in accordance with law.

28. Therefore, due to non-proving of performance of Talb-e-Muwathibat, the instant revision petition has no force, which is hereby dismissed and the judgment/decree of the appellate Court passed on 21-5-2004 is maintained. Parties are left to bear their own costs. S.A.K./26/P Revision dismissed.