Examination of postman

2018 MLD 1922 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.13Suit for pre-emptionTalbsProofTalb-i-Ishhad, notice ofExamination of postmanNecessityAcknowledgement-due receipt, non-production ofEffect

Pre-emptor neither produced receipt of acknowledgement-due nor produced the postman, who had served the notice of Talb-i-Ishhad upon the vendee; it was mandatory for the pre-emptor to produce the postman to establish the service of Talb-i-Ishhad in compliance with S.13 of Punjab Pre-emption Act , 1991.

2017 CLCN 56 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 13Pre-emption suitTalbsProofNotice of Talb-i-ishhadExamination of postmanNecessityAcknowledgment due, requirement as toPre-emptors as witness, appearance of

Plaintiffs filed suit for possession through pre-emption seeking to pre-empt sale made in favour of defendant(vendee) claiming to have made the required demands/Talbs

Defendant denied the claim on plea that Talbs had not been made in terms of S. 13 of Punjab Pre-emption Act, 1991

Trial court decreed the suit, but appellate court reversed the same holding that plaintiffs had failed to prove Talb-i-Muwathibat as one of pre-emptors had not appeared as witness to depose about performance of Talbs

Contention by plaintiffs was that appellate court had misconstrued evidence and misapplied the law

Plea taken by defendant was that making of Talb-i-Muwathibat was a personal act and all pre-emptors had to appear as witness to depose about the Talbs for their suit to succeed

Defendant denied receipt of Talb-i-Ishhad

Validity

Pre-emptor had to prove making of Talb-i-Muwathibat otherwise suit would be dismissed

Making of Talb-i-Muwathibat was condition precedent to fulfil Talb-i-Ishhad and it was incumbent upon plaintiffs to examine postman to prove that he had delivered envelope containing notice of Talb-i-Ishhad to defendant

Plaintiffs examined postman who deposed that his son had delivered the envelope to defendant, but the son was not called as witness which was fatal to the case of plaintiffs

Postman could not delegate his authority to his son

Plaintiffs' witness admitted that postal envelope was not accompanied by any acknowledgment due

Plaintiffs failed to prove delivery of postal envelope in terms of S. 13 of Punjab Pre-emption Act, 1991

High Court dismissed petition for being without merit.

2014 CLC 438 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 13Talb-i-Ishhad, notice ofBurden of proofExamination of postmanScopePre-emption suit was decreed in favour of pre-emptorAppellate court dismissed the appeal

Contention of the petitioners/vendees was that they specifically denied the claim of pre-emptors regarding performance of Talb-i-Ishhad in written statement

Pre-emptor did not produce the postman before trial court, therefore the performance of Talb-i-Ishhad had not been proved and as such judgments and decrees passed were not sustainable in the eye of law

Validity

Pre-emptors had claimed that they had performed Talb-i-Ishhad which fact had been denied by the vendees in their written statement

Pre-emptors had claimed that notices of Talb-i-Ishhad were sent and served upon the vendees and had produced copies of the postal receipts and the acknowledgment postal cards but production of same was not sufficient for the entitlement to the decree of possession in exercise of the right of pre-emption

Pre-emptors were under obligation to produce postman to prove due performance of Talb-i-Ishhad and failure to do so would result into the dismissal of suit

Impugned judgments and decrees passed by two courts below in favour of the pre-emptors were set aside

Revision was allowed.

2013 SCMR 866 SUPREME-COURT Judicial Precedent

S. 13Suit for pre-emptionTalb-i-Ishhad, notice ofBurden of proofScopeExamination of postmanScope

Plea of pre-emptor that attorney of vendee while appearing as witness had admitted the receipt of notice of Talb-i-Ishhad, therefore, pre-emptor was not obliged to prove the same

Validity

Regarding issuance of notice of Talb-i-Ishhad, admittedly the postman had not been examined by the pre-emptor

Affirmative onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor, therefore, notwithstanding any admission of the attorney of the vendee, it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman

Appeal was allowed and suit for pre-emption stood dismissed in circumstances.

2013 YLR 2530 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S.13Talb-e-Ishhad, performance ofExamination of postmanPlaintiff filed pre-emption suit which was dismissed concurrentlyValidityReceipt of acknowledgement-due had not been produced

Had the notice of Talb-e-Ishhad been sent through registered post acknowledgement-due as required under S.13(3) of the Punjab Pre-emption Act, 1991, the receipt of acknowledgement-due would have been received back and in case of non-receipt or refusal to receive the same, the envelope would have been received by the plaintiff-petitioner with an endorsement to that effect

Only on one of the eventualities, a presumption would have arisen to the effect that the notice of Talb-e-Ishhad was duly served

After denial of defendant-respondent, it was necessary for the plaintiff-petitioner to prove that he had, in fact, sent the notice of Talb-e-Ishhad through registered cover envelope acknowledgement-due or the same was, in fact, served upon the defendant-respondent

Notice of Talb-e-Ishhad could have been proved by production of the receipt of acknowledgement-due or envelope with endorsement of the postal employee, if received on refusal or through production of the postman, who had delivered the same

No doubt, in the present case, alphabets 'A.D.' appeared on the receipt but the person, who issued the same had not entered the witness box to prove that in fact, alphabets 'A.D.' were written and that the notice was actually sent through registered cover envelope acknowledge-ment-due

Pre-emptor was required to send the notice of Talb-e-Ishhad through registered cover envelope acknowledgement-due and prove that fact through reliable evidence and in case the receipt of the notice Talb-e-Ishhad was refused by the defendant-respondent then he might substantiate his contention by production of the receipt of acknowledgement-due issued by the Postal Department, the envelope bearing endorsement of the postal employee, after return due to refusal to accept the same or by examination of the postman

Plaintiff-petitioner did not adopt any mode to prove his contention regarding performance of Talb-e-Ishhad and Trial Court and Appellate Court rightly held that plaintiff-petitioner had failed to prove the same

Concurrent findings of the courts below of competent jurisdiction did not call for interference in exercise of the revisional juris-diction

Revision petition was dismissed.