Talb-e-Muwathibat

Besides the date, time and place of performance of Talb-e-Muwathibat the pre-emptor also was to prove beyond doubt that the Talb-e-Muwathibat had been performed in a Majlis/meeting.

Held, that both the informer and plaintiff , while adducing their evidence, added that another person was also present at the time of making Talb-e-Muwathibat; and said person/witness also deposed the same in his own statement wheras said fact was neither mentioned in the notice of Talb-e-Ishhad nor in the plaint

Said witnesses had also contradicted with regard to the specific place (whether the veranda or the room of the petitioner's house) where the Talb-e-Muwathibat was allegedly made

Witnesses , in the present case, were not truthful which was the mandate of law, thus no Talb-e-Muwathibat was made by the petitioner

Suit was rightly dismissed.

Pre-emptor was to prefer his claim of pre-emption the moment he was appraised of the sale being concluded; and this was necessary as any delay could invalidate such right

Right of pre-emption was but a feeble right

High Court observed that the Messenger of Allah (Peace Be Upon Him) had said that the right of Shuf'ah (pre-emption) was established in the person who preferred his claim without delay.

Plaintiff had not mentioned in the plaint the exact day, time, date and place as to when and where he performed Talb-i-Muwathibat

Effect

Pre-emptor should have mentioned in plaint the exact date, time, place and when and where he performed Talb-i-Muwathibat as the same was mandatory requirement of law

Right of pre-emption would be extinguished in case of pre-emptor's failure to do so

Decree for possession through pre-emption could not be passed, in circumstances.

Pre-emptors had jointly claimed the suit property, after withdrawal by one pre-emptor, suit was for 2/3 of the suit property which was partial pre-emption which was not permissible under the law

Suit stood dismissed.

Contention of the appellant/pre-emptor was that the law laid down by the Supreme Court in Mian Pir Muhammad and another v. Faqir Muhammad reported as PLD 2007 SC 302 with regards to particulars of Talb-e-Muwathibat vis-a-vis time and place of making Talb-e-Muwathibit was per incuriam

Held, argument of pre-emptor/appellant was not persuasive, and appeal was therefore without merit

Appeal was dismissed, in circumstances.

Plaintiff having not pleaded in the plaint assertion of right of pre-emption in the presence of witnesses, could not be allowed to set out a new case beyond the scope of his pleadings

Right of pre-emption would be extinguished where plaintiff did not make talbs in accordance with law

Talb-e-Muwathibat, the first demand had to be made in the same meeting

Plaintiff, in the present case, neither declared his intention nor asserted the right of pre-emption immediately after receiving information of sale rather he went to the suit-land to claim right of pre-emption in the presence of notables which did not constitute Talb-e-Muwathibat in accordance with law

Plaintiff did not satisfy the requirements of Talb-e-Muwathibat

Appeal was dismissed.

Talb-i-muwathibat played a role of ignition in process of pre-emption and on failure of the pre-emptor to prove the performance of talb-e-muwathibat, the court was not required to move a step ahead, because discussing the other factors like talb-i-ishhad, talb-e-khasoomat and superior right of preemption, etc. would be a futile effort.

Omission to mention date, time and place of performance of Talb-e-Muwathibat was fatal for a suit for pre-emption.

Plaintiff (pre-emptor) while appearing as witness did not mention the date, time and year of performance of Talb-e-Muwathibat

Another witness who appeared on behalf of pre-emptor failed to mention date, time and place of performance of Talb-e-Muwathibat

Omission to mention such particulars was fatal for the suit for pre-emption.

Performance of requirement of Talb-e-Muwathibat which was prerequisite mandatory requirement of S. 13 of Khyber Pakhtunkhwa Pre-emption Act, 1987, for filing of suit for pre-emption, was not proved to have been fulfilled by pre-emptors

Pre-emptors having failed to perform requisite Talb in accordance with the provisions of section 13 of Khyber Pakhunkhwa Pre-emption Act, 1987, relevant issue was rightly decided against pre-emptors by the courts below

Judgments and decrees passed by two courts below neither suffered from mis-carriage of justice nor were result of mis-reading or non-reading of evidence on record

High Court did not find any illegality or material irregularity or jurisdictional error in the judgments, to warrant interference in its revisional jurisdiction

Revision was dismissed in circumstances.

Time, date and place of knowledge had been pleaded in the plaint but were not proved through evidence, therefore by no stretch of imagination it could be presumed that the case pleaded by the plaintiff with regard to Talb-e-Muwathibat had been proved

Both the courts below travelled beyond their jurisdiction, finding that the plaintiff had successfully proved Talb-e-Muwathibat in accordance with law.

Plaintiffs filed pre-emption suit which was decreed by the Trial Court but the same was dismissed by the Appellate Court

Validity

Statements of parties to the transaction were recorded on 19-8-1998, the receipt of the sale price was admitted by the seller, the possession was transferred and attestation of mutation was a formality

Sale for the purpose of pre-emption was complete on 19-8-1998 and the pronouncement of right of pre-emption before the attestation of mutation and sending notice of Talb-e-Ishhad was not defective

Notice of Talb-e-Ishhad sent to the vendee had not been proved to have been served or refused, as the postman as well as postal clerk had not been produced to testify the same

Receipt of acknowledgment-due as well as original notice of Talb-e-Ishhad which contained report that the addressee was not available and his 'Lawahiqeen' had refused to accept the same, was not proved on the record as the same had been produced in the statement of counsel for the plaintiffs-petitioners

Plaintiffs-petitioners had failed to prove the performance of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law which were pre-requisite for filing suit for pre-emption

Both the Talbs had not been pleaded and proved in accordance with law

No case for interference by the High Court had been made out

Revision being devoid of any substance was dismissed.

Plaintiff not only disclosed the time, date and place of acquiring knowledge of the sale in his plaint but his witnesses also narrated the same in their examination-in-chief in unequivocal terms

Discrepancies high-lighted by the lower Appellate Court in discarding the evidence of the plaintiff's witnesses regarding performance of Talb-e-Muwathibat were trivial in nature

Such discrepancies could occur due to lapse of time; on the basis of such minor discrepancies which were not material in nature pre-emptor could not be non-suited

Plaintiff through cogent and reliable evidence had proved performance of Talb-i-Muwathibat and the findings of the courts below on such issue suffered from material irregularities resulting in miscarriage of justice

Where such findings were apparent on the face of record High Court had ample powers to reverse the concurrent findings of facts of the courts below

Suit of the plaintiff for possession through pre-emption was decreed subject to deposit of sale price with the Trial Court within one month.

Pre-emptor during his cross-examination admitted that he came to know about the transaction by an informer and at the same time he announced his superior right of pre-emption qua the respondents over the property in dispute

Pre-emptor in examination-in-chief did not mention that he at once exercised his right of pre-emption nor did he disclose that he announced his right of pre-emption in presence of the informer

Pre-emptor only produced single witness of talb-e-Muwathibat, who was also the informer of the sale; he had also not proved talb-e-Ishhad in accordance with law since in his statement he admitted that he could not mention exactly whether the notices of talb-e-Ishhad exhibited in court were the same notices which were sent to the respondents

Clerk who had written the notice of talb-e-Ishhad was not produced as witness in the case

Pre-emptor had not successfully proved the talbs in accordance with law

Courts below were concurrent in their findings of fact and had taken into consideration all the material aspects of the case in their judgments and decrees

No interference in revisional jurisdiction was called for

Revision petition was dis-missed in circumstances.

Statement of the plaintiff showed that the pre-emptor was sitting in the courtyard and after a consultation of 2/3 minutes; he made the pronouncement of filing suit for pre-emption

Talb-i-Muwathibat meant "jumping demand" and if the same was made after consultation and pondering over; same could not be deemed to be Talb-i-Muwathibat

Consultation would signify pondering over the benefits of filing the suit for pre-emption, which negated the spirit of Talb-i-Muwathibat as was elucidated in Explanation No.1 under S.13 of the Punjab Pre-emption Act, 1991

Once a person made consultation or pondered over, he could not say that he had made a "jumping demand" which was the essence of Talb-i-Muwathibat

Argument that Talb-i-Muwathibat connoted immediate pronouncement within reasonable time and 2/3 minutes spent on consultation would not deprive the pre-emptor of his right was devoid of any force

Person who was in need of the property or wanted to avoid "zarar" within the meaning of S.6 of the Punjab Pre-emption Act, 1991 would not make consultation before making the pronouncement but would immediately make his intention regarding the filing of the suit, clear

Revision was dismissed.