Right of substitution

2017 YLR 2358 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 13Talbs, performance ofRequirementsVendor being brother of pre-emptorEffectRight of substitutionWaiver ofScopePre-emptor without disclosing that vendor was his real brother had pre-empted the sale

Pre-emptor in case of any adverse statement made by vendor could have made a request for declaring him hostile and by subjecting him to cross-examination the veracity of his statement could be elucidated on record

Prudent man could not believe that factum of sale of pre-empted property by the brother of pre-emptor had remained secret from the knowledge of pre-emptor for a long period

Pre-emptor was residing in the same village where pre-empted property was situated

Pre-emptor being brother of vendor could be presumed to have knowledge of sale transaction from its inception

Nothing was on record that pre-emptor asked his brother to sell the land in question to him

Both pre-emptor and vendor had understanding between them

Change of possession of immovable property could be considered a notice to all the inhabitants of the locality with regard to effecting of the transaction

Sale was in the knowledge of pre-emptor from the day one, when it was effected

Alleged fulfillment of Talb-i-Muwathibat was not genuine rather fictitious and concocted

Pre-emptor was bound to prove the service of notice of Talb-i-Ishhad through registered post on the vendee by production of concerned postman who was alleged to have actually delivered the same

Postman who was produced in the court was not posted as a postman when the alleged delivery of notice was effected upon the vendee

Postman had got recorded his statement without producing the delivery register wherein endorsement was made by the postman qua the effect that registered post was delivered or it was refused

Statement of postman in absence of such register as well as report over acknowledgement due had no evidentiary value with regard to registered post containing notice of Talb-i-Ishhad

Findings of Trial Court with regard to service of notice of Talb-i-Ishhad were not based on appreciation of material available on record

If any portion in statement-in-chief was not specifically cross-examined by the pre-emptor then same should be deemed to have been admitted

Pre-emptor had neither asked the vendor to sell the land in question to him nor did he notify the vendee with regard to his intention to claim his right of pre-emption

Right of substitution could be waived either by express refusal to purchase the property or by conduct on the part of pre-emptor showing lackadaisical attitude in purchase of property

Impugned judgments and decrees were illegal, unlawful and perverse being result of mis-reading and non-reading of evidence on record which were set aside

Suit was dismissed with costs throughout

Revision was allowed in circumstances.