Pre-Emption Suit

Alienation of suit property after dismissal of suit for non-prosecution and before its restoration falls within the sphere of lis pendens

Factual background of present case was that appellants / plaintiffs (pre-emptors) filed a suit for possession through pre-emption against respondent No. 5 (vendor) regarding the suit land claiming the sale price was Rs.200,000, while respondent No.5 asserted that it was Rs.250,000

Suit was dismissed for non-prosecution and was later on restored

After dismissal of suit and before its restoration, respondent No.5 (vendor) sold the property to respondents Nos. 2 to 4 (subsequent vendees)

During pendency of the suit, respondent No. 5 (vendor) made a statement before the trial court that the original vendor could be summoned to confirm the actual sale consideration and that whatever amount the vendor admitted to have received could be treated as the sale price for decreeing the suit

The only question before the Trial Court requiring determination was the price of the suit land and respondent No.5 had no objection if the original vendor was summoned for ascertaining the actual amount of sale, but the Trial Court did not accede to the request of the appellant and proceeded to frame the issues

Trial Court dismissed the said request but the revisional court accepted it, decreeing the suit

Respondents Nos. 2 to 4 (subsequent vendees) challenged the revisional court verdict before the High Court, whereby, the decree was set aside and the matter was remanded for decision on merits, prompting the present appeal by the preemptor concerning the applicability of the doctrine of lis pendens

Primary question warranting determination before the Supreme Court was as to "whether the Respondents Nos. 2 to 4, who purchased the suit property during the pendency of the pre-emption suit despite a stay order, were bound by the statement of their predecessor-in-interest under the rule of lis pendens, and whether the appellant (pre-emptor), who had already deposited the amount of Rs.250,000/- in compliance with that statement, could claim that the transaction was struck by lis pendens and was entitled to have the suit decreed?"

Held: So far as the argument that the property was purchased during the period when the suit was dismissed, therefore, the principle of lis pendens did not apply to the case of the subsequent buyers, the said argument had no force, because if a suit was dismissed and then restored, the restoration order related to back period and a transfer/sale after dismissal and before restoration was subjected to the principle of lis pendens embodied in section 52 of the Transfer of Property Act, 1882

However, in the present case, the petitioners purchased the disputed property through a mutation when the proceedings in the suit were in progress after its restoration after dismissal for non-prosecution

Respondents Nos. 2 to 4 had acquired the title to the suit property subject to the final outcome of the lis and as such were bound by the result of the suit stricto sensu in all respects, as their transferor i.e. respondent No.5 was bound

High Court erred in law while passing the impugned order, which suffered from material illegality, therefore, same could not be allowed to sustain further

Resultantly, the impugned order was set aside and appeal was allowed, in circumstances.

Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption

Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court

Validity

Record showed that a witness said to have been present at the time of first Talb though had died, but the claimant of the pre-emption preferred never to bring any secondary evidence in that regard

In the cross-examination, the appellant and the seller both had stated that no first Talab was made and irrespective of the contentions raised in the written statement, which were apparently never confronted to the witness, the material in record did not show that the respondent No.1 was able to prove that the first Talb was ever made

In the said circumstances the decree of preemption was not available

Revision was allowed, in circumstances.

Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption

Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court

Validity

In the present case, record showed that the Trial Court had preferred to keep the price as was up in 1987 which could never be entertained as inflation was an ever visible element and the amount required to be deposited in year 2013 could not by any stretch of imagination be considered as adjustable amount that was paid in 1987

Revision was allowed, in circumstances.

Section 30 of Punjab Pre-emption Act, 1991, provided four eventualities to compute the limitation for instituting a suit for pre-emption

All the four were independent and contemplating different events for the purpose of calculating the limitation for a suit to enforce a right of pre-emption

Clause (d) of S.30 was not an exception to the provision, rather it was a residual provision and would only come into play if none of the preceding clauses were applicable/attracted

Where a case was covered by any specific clauses from (a), (b) and (c), clause (d) could not be resorted to.

Had it been the intent of Legislature to make the period of limitation under S.30 of the Act, as a subservient to the requirement of S.31, it would have clearly indicated such intention by use of appropriate expression/words in either of the two sections.

Plaintiff should have mentioned the date and time of performance of Talb-e-Muwathibat in the plaint and proved that he had performed Talb-e-Muwathibat in the same meeting

Neither requirement of Talb-e-Muwathibat was completed nor Talb-e-Ishhad was proved

Concurrent findings of the courts below were based on valid reasons

No non-reading or misreading of evidence was involved in the case warranting interference by High Court

Impugned judgment and decrees were upheld

Revision petition was dismissed.

Pre-emptor before performing Talb-i-Ishhad must give reference of first demand to the witnesses informing them that he/she had already performed his/her first demand accordingly

Such reference was a condition precedent without which Talb-i-Ishhad was incomplete

Pre-emptor had not mentioned the names of witnesses in the plaint in whose presence Talb-i-Muwathibat and Talb-i-Ishhad were performed and no date, time and place of said talbs in the plaint were mentioned

Plaintiff was bound to have mentioned date, time and place of performance of Talb-i-Muwathibat in the plaint

Pre-emptor had failed to establish performance of Talb-i-Muwathibat, in circumstances

Trial Court had rightly rejected plaint filed by the plaintiff

Revision was dismissed, in circumstances.

Plaintiffs had failed to produce two witnesses of the occasion/event when they came to know that defendants had sold or they were about to sell their property and plaintiffs raised their right of pre-emption against the defendants

Plaintiffs were required to produce two witnesses of Talb-i-Ishhad but they had not produced the second witness nor had mentioned second witness in their claim of pre-emption

Plaintiffs had failed to prove their right of pre-emption, in circumstances

Revision was dismissed accordingly. [Paras. 7, 8, 9 & 10 of the judgment]

Oral evidence produced by the pre-emptor to perform Talb-i-Muwathibat was not only contradictory but was also not cogent proof of said talb

If first talb was not proved by cogent evidence then subsequent demand of Talb-i-Ishhad would become inefficacious

Evidence of pre-emptor to perform Talb-i-Ishhad was not convincing and sufficient in itself to maintain a decree of pre-emption

Impugned judgment and decree passed by the Appellate Court were result of mis-reading and non-reading of evidence which were set aside and appeal was dismissed

Revision was allowed in circumstances.

"Whether subsequent alienation was a valid devise to ward-off the right of pre-emption or same was only a disguise/ sham transaction to deprive the plaintiff from his right of pre-emption" could only be determined after recording evidence

Courts below had ignored the settled principles of law while deciding the application for rejection of plaint

Only contents of plaint while deciding the application for rejection of the same had to be taken into consideration

Plaint, in the present case, revealed a cause of action to the pre-emptor to file suit against the impugned sale

Suit had been filed within prescribed period of limitation against the original transaction

Present suit was neither barred by any law nor did it lack disclosing a cause of action

Impugned orders passed by the Courts below were set aside

Revision was allowed in circumstances.

Trial Court dismissed the suit but Appellate Court extended the time by 20 days on the ground that order for deposit of Zar-e-Soam was ambiguous

Validity

Pre-emptor was bound to deposit Zar-e-Soam within the time period fixed by the Trial Court

Court had no jurisdiction to extend said period in view of S. 24 (2) of Khyber Pakhtunkhwa Pre-emption Act, 1987

Once suit was dismissed by the Trial Court owing to non-deposit of one-third of sale consideration as mentioned in the mutation then Appellate Court had no jurisdiction to extend the said period

Pre-emptor had made no effort to make good the deficiency of Zar-e-Soam till the decision of Trial Court on the said issued

Non-deposit of exact amount pursuant to the order of Trial Court was based on mala fide of pre-emptor

Impugned order passed by the Appellate Court was set aside and that of Trial Court was restored

Revision was allowed, in circumstances. Wasal Khan and others v. Dr. Niaz Ali Khan 2016 SCMR 40 distinguished.

Talb-i-Muwathibat was to be performed the moment pre-emptor came to know that land had been sold and Talb-i-Ishhad would be performed after first demand in presence of witnesses

Right of pre-emption was a feeble right and making demands was oral process

Evidence in exercise of right of pre-emption being oral was required to be direct

Pre-emptor was required to establish and prove that two demands i.e. Talb-i-Muwathibat and Talb-i-Ishhad were validly performed

Pre-emptor was to mention the particulars with regard to name of informer, date, time and place of performance of Talb-i-Muwathibat as well as date of Talb-i-Ishhad in his plaint

No valid reason had been advanced as to why pre-emptor did not appear in the witness box before the Trial Court

Pre-emptor had filed the present suit in his personal capacity after performing Talb-i-Muwathibat

Non-appearance of pre-emptor in the witness box would adversely affect his right of pre-emption

Right to pre-empt was a personal right and Talb-i-Muwathibat being a personal act was to be proved by the pre-emptor through his own statement; attorney might not be a substitute of a pre-emptor

Best evidence having been withheld, adverse inference would be drawn against the pre-emptor

Attorney was not present when the alleged demands were made by the plaintiff

Plaintiff, in circumstances, had failed to prove the performance of requisite demands of pre-emption and his suit was liable to be dismissed

Findings recorded by the Appellate Court were not in consonance with the record

Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored

Second appeal was allowed, in circumstances.

Record showed that the date and place of performance of Talb-e-Muwathibat was indicated but the time was not indicated which was a glaring illegality

Record transpired that there were substantial contradictions in the statement of witnesses regarding the arrival of informer to the Baitek of his father

Pre-emptor was father and the alleged informer was his son which itself appeared to be a home made story

Plaintiff/respondent stated that he had invited the witnesses for breakfast when his son was present at 9.55 a.m.

Witness stated that he had gone to Baitek of pre-emptor at 8.30 a.m. or 9.00 a.m. in the morning but the informer was not present with them

Said witness stated that he had not taken breakfast with pre-emptor and remained in his fields till he heard about the sale of pre-empted land

Pre-emptor/witness presented his examination-in-chief in the form of affidavit without its having been formally exhibited

Statement could be accepted in the form of affidavit, but the exhibition of document must be made in court in the presence of Presiding Officer as well as opposite counsel so as to provide opportunity to the opposite counsel regarding any objection, which could be raised

Similarly, respondent had raised such like objections at the time when the witnesses referred their affidavits without even exhibiting the affidavit in court

Record revealed that contentions as raised in the plaint and in the affidavits were un-proved on record and such like cursory reference to the affidavits could not fulfill the pre-requisites of S.13 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Statement in the form of affidavit could not be equated to an examination-in-chief recorded in the court

Cross-examination of the witnesses showed contradictions, which could not be treated as minor contradictions

Post man, who delivered registered notice of Talb-i-Ishhad had not been examined

Non-compliance of provision of Qanun-e-Shahadat, 1984 besides the glaring contradiction, was substantial enough to defeat the pre-emption suit

Notice of Talb-i-Ishhad per se was not proof of its contents unless properly exhibited in court and the affidavit per se was not the proof of contents of Talbs unless exhibited along with the documents mentioned therein

Revision petition in circumstances was allowed by setting aside the judgment passed by the appellate court.

Vendees moved application under O. VII, R. 7, C.P.C. for rejection of plaint on the ground that "place" of alleged performance of Talb-e-Muwathibat was not mentioned in the plaint

Pre-emptors moved application for amendment of plaint

Non-mentioning of place of performance of Talb-e-Muwathibat

Effect

Petitioners/vendees contended that mentioning of place of performance of Talb-e-Muwathibat in the plaint was sine qua non and amendment of plaint was equal to rectification of the plaint and Trial Court had rightly rejected the plaint of pre-emptors while appellate court had wrongly allowed pre-emptors to amend their claim

Pre-emptors/respondents contended that place of performance of Talb-e-Muwathibat was inadvertently missed in the plaint so order of appellate court allowing to amend the plaint was justified

Validity

Mentioning of particulars as to "date", "time" and "place" of making talbs are sine qua non for a successful pre-emptory action, and failure would invariably be fatal for the pre-emptor

Respondents/pre-emptors had accepted their non-performance of the requisite detail of "place" where Talb-e-Muwathibat had been performed and the essential principle of "place" when missing in the plaint, they had to face the consequences for the omission

Trial Court while evaluating the pleadings had considered that in presence of said material defect the cause of action to the pre-emptor had not accrued and in such circumstances the further proceedings in the matter was merely a futile exercise and thus the plaint was rightly rejected

Effect of rectification of the plaint on the basis of proposed amendment of the pleadings had taken the pivotal position in the present case

Amendment in the pleadings was sought by the respondents when the petitioners on the basis of said fatal aspect filed application under O. VII, R. 11, C.P.C., therefore, its insertion in the plaint was clearly visualized that application was filed for filling-up the lacuna and if said amendment was allowed same would be against the spirit of S. 13 of the Punjab Pre-emption Act, 1991

Appellate court allowing the respondents to amend the pleadings to make-up the deficiency/shortcoming in the suit was not sustainable as the same would change nature and complexion of the suit which was originally filed by the respondents, therefore, view rendered by the appellate court was not sustainable

High Court observed that appellate court while allowing the proposed amendment acted in exercise of its jurisdiction with grave illegality and material irregularity on the basis of erroneous and unreasonable view

Exercise of revisional jurisdiction was meant for correction of illegal orders, in circumstances, no other option was left with the High Court except to allow the revision

Impugned judgment and decree passed by appellate court was set aside while judgment and decree passed by Trial Court was upheld

Revision was allowed accordingly.

Vendee before filing of suit for possession through pre-emption transferred suit land through gift mutation in favour of his wife

Pre-emptor did not challenge last transaction of gift in his suit

Defendant moved application for rejection of plaint

Trial Court rejected the plaint but Appellate Court remanded the case for decision on merits

Validity

When transfer of land was effected before filing of suit for pre-emption then no benefit of principle of lis pendens could be extended to the pre-emptor

Last sale/transfer of suit land was to be pre-empted before filing of suit by the plaintiff

Transfer of suit land by the defendant in favour of his wife through gift mutation was much before the announcement of intention to pre-empt

Said transfer of land by the vendee in favour of his wife was a device to save the suit property from pre-emption

Any device saving the transaction from pre-emption could be used but disguise was not permissible under the law

Transaction in favour of wife of vendee through gift mutation could be said to be a disguise when there was no defect in the entry and attestation of mutation

Pre-emptor had not alleged any defect even in the application for amendment of plaint

Impugned judgment passed by the Appellate Court being against law was set aside

Findings recorded by the Trial Court were restored

Revision was allowed in circumstances.

Petitioner/plaintiff contended that he could not file list of witnesses owing to misunderstanding and that provision of filing of list of witnesses was only directory in nature

Respondent/defendant contended that plaintiff did not file list of witnesses deliberately and had not given "good cause" in his application for non-compliance of mandatory provision of law

Validity

Primary question for determination in the present case, was that whether the petitioner/plaintiff could show any "good cause" for non-filing of the list of witnesses within seven days

Plea taken by the petitioner before the Trial Court was that on the date when the issues were framed, the clerk of his counsel had only noted down the next date of hearing without having knowledge that written statement had been filed and issues had been framed and that on the said date due to ailment, he could not contact the counsel and came to know about the filing of written statement and framing of issues subsequently

Petitioner further contended that non-submission of list of witnesses was a misunderstanding, and he being an ailing person could not submit the list within time and prayed that in the interest of justice he be allowed to submit the list of witnesses

Record showed that before filing the application by the petitioner, the case was adjourned for six times after the framing of issues and the presence of the counsel/clerk was marked, which nullified and negated the stance taken by the petitioner

Plea of petitioner, in circumstances, could not be treated as a good cause for non-submission of list

High Court declined interference in the impugned order and judgment passed by the Courts below

Constitutional petition was dismissed accordingly.

Right of Shuffa in Islam could not be used as a tool for becoming rich by adding adjoining properties to one's land holdings by forcing the neighboures to compulsorily sell their estates to the claimants

Sharia had made provision of this right to those only who were in desperate need of exercising it to save themselves from 'Zurrer'

Pre-emptor had failed to produce two witnesses of Talb-i-Ishhad

Plaintiff's aim was to add suit property to his richness which act was in violation of fundamentals governing the concept of Shuffa

Right of pre-emption was available to safeguard privacy of Muslim families and to prevent inconvenience which might result from introduction of stranger as a co-partner or neighbour

Pre-emptor, in the present-case, was not owner of adjacent land entitling him to press the claim of pre-emption

No demand had been made in accordance with law

No illegality, irregularity or mis-reading or non-reading had been pointed out in the impugned judgments and decrees passed by the courts below

Revision was dismissed in circumstances.

Shia fiqah does not recognize the pre-emption right on the ground of vicinage or participation in the appendages of suit land.

Appellate Court remanded the case with the direction that if pre-emptor succeeded to deposit 1/5th of the probable amount within a specified period, his suit should be decreed otherwise same would be deemed to have been dismissed

High Court set aside the judgment and decree of Appellate Court and restored judgment of Trial Court

Validity

Pre-emptor was bound to comply with the Trial Court's order till 12-07-2008 which would mean before commencing said date

When a Court had already passed an order and become functus officio, then the powers did not remain with the said Court to entertain any application in such matter

Pre-emptor had failed to point out any illegality in the impugned judgment passed by the High Court

Appeal was dismissed in circumstances.

Court was bound to dismiss the suit on failure of the pre-emptor to deposit 1/3rd of the sale price within the period fixed by it

Pre-emptors having failed to deposit the requisite 1/3rd pre-emption amount/sale consideration within period fixed by the Trial Court, Trial Court was justified in dismissing the suit of plaintiffs

Deposit of 1/3rd of sale consideration was mandatory couched with penal clause of dismissal of pre-emption suit

No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned order passed by the Trial Court

Appeal was dismissed in circumstances.

Trial Court decreed the suit to the extent of 1/3rd of the suit property but Appellate Court modified the decree by enhancing the extent of 1/2 share of suit property

Pre-emptor filed revision but same was dismissed as withdrawn thereafter

Application for extension of time to deposit pre-emption money was moved but same was dismissed

Validity

Extension of time was discretionary with the Court but such discretion could not be used arbitrarily

Amount enhanced by the Appellate Court had never been deposited by the decree holder within stipulated time

Decree by the Appellate Court lost its validity

Provisions of O. XX, R. 14, C.P.C. were mandatory in nature and non-compliance of the same would entail penal consequence

No provision for extension of time for deposit of money existed in the Khyber Pakhtunkhwa Pre-emption Act, 1987

No illegality or irregularity had been committed while dismissing the application of pre-emptor

Revision was dismissed in circumstances.

1/3rd amount of total consideration had to be deposited within 30 days from the institution of suit.

Court had no jurisdiction to extend the period of the deposit beyond 30 days of the institution of suit.

Application of pre-emptor for bringing additional evidence by producing of postal clerk and postman before appellate Court

Conditions for production of additional evidence

Evidentiary value of postman and acknowledgment-due card

Scope

Petitioner/pre-emptor contended that postal card was in his possession and was ready to produce but appellate court dismissed his application for production of additional evidence

Petitioner submitted that it was duty of the Court to summon the witness if the diet money for summoning of the witness was deposited

Respondent/vendee contended that Postman and the acknowledgment-due card was not produced by the pre-emptor in his affirmative evidence so it could not be allowed to produce the same at appellate stage

Validity

Contention of the petitioner in the application under O. XLI, R. 27, C.P.C. was that he was not given proper opportunity for production of the evidence and in a hasty manner the Trial Court closed the evidence

Record showed that after framing the issues, plaintiff produced his oral evidence and then recorded the statement that except remaining evidence of post office and documentary evidence he closed his evidence

Petitioner, therefore, tendered documentary evidence and closed his affirmative evidence subject to right of rebuttal, however, after the evidence of the respondent the petitioner stated that he did not want to produce any evidence in rebuttal

Trial Court after the conclusion of the trial, non-suited the petitioner for non-production of Postman and acknowledgment due card in evidence

Assertion of the petitioner that it was mandatory for the Court to summon the witness through his own procedure when diet money of summoned witness was deposited was not tenable

Court, though was supposed to summon the witness, but when the private witnesses of the petitioner had been examined and he had stated that he wanted to close his evidence, that was the best time for the petitioner to bring to the notice of the Court, that said witnesses were not willing to appear before the Court and for procuring their evidence Court might adopt coercive measures

Petitioner failed to invoke the procedure of the Trial Court and remained satisfied with his evidence and closed the same without tendering any further evidence of Postman as well as acknowledgement-due card

When the vendee on the very first day had denied the receipt of notice of Talb-i-Ishhad, record of Post office and statement of Postman/Postal clerk were the most crucial record for the petitioner to prove the factum of service of alleged notice but he did not produce the postal clerk, postman and acknowledgment-due card

Petitioner failed to satisfy Court about the reasons for not doing so

Petitioner was to annex the said documents with the suit

Provision of O. XLI, R. 27, C.P.C. was not a mere procedural matter in appeal to allow the petitioner to fill the lacuna by way of additional evidence

Criteria laid down in the said provision was that initially it was the duty of the petitioner to produce evidence before the Trial Court and if Trial Court had refused to admit the evidence which ought to have been admitted the petitioner would resort to produce additional evidence

If, however, appellate Court required any document or any witness to be examined to enable the Court for pronouncement of judgment, in that particular situation the provision of O. XLI, R. 27, C.P.C. could be invoked

Both the said conditions were not available to the petitioner

Affirmative evidence was to be produced by the petitioner when he was having full opportunity to prove his case before the Trial Court

Without production of Postman/Postal clerk and postal receipt, the process of Talb-i-Ishhad had not been duly performed by the petitioner/plaintiff and with such deficiency the case of the petitioner fell in the ambit of non-performance of Talb-i-Ishhad

Non-production of acknowledgment-due card was also a glaring deficiency

Application of S. 13(3) of Punjab Pre-emption Act, 1991, was not followed in true perspective, therefore, such default was fatal for pre-emptor to his suit on account of failure of performance of Talb-i-Ishhad

No illegality or irregularity in the impugned judgments and decrees of the Courts below having been found revision was dismissed.

Plaintiff filed suit for pre-emption to pre-empt sale of suit property, in which Trial Court on the first date ordered plaintiff to deposit Zar-e-Soem within one month

Before expiry of one month, plaintiff filed application seeking determination of "probable value" of suit property on plea that sale price mentioned in sale deed appeared to be inflated

Plaintiff substantiated his said plea by producing one year's average value prepared by revenue authorities showing value of suit property

Pending said application, plaintiff filed review petition to seek permission to deposit Zar-e-Soem on basis of said average value which the Trial Court dismissed leaving plaintiff to deposit Zar-e-Soem on his own risk

Validity

Proviso II of S. 24(2) of Punjab Pre-emption Act, 1991 had two parts: first dealt with situation, where no sale price was mentioned in sale deed or in mutation, in which case, court was competent to require deposit of one-third of probable value of property; whereas per second part of the proviso, if sale price mentioned in sale deed, appeared to be inflated, court shall require deposit of one-third of probable value of suit property in real perspective

Words "appears to be" as used in proviso II suggested for preliminary probe by court before directing deposit of Zar-e-Soem

Penal consequences of S. 24(2) of Punjab Pre-emption Act, 1991 would become operative if plaintiff had failed to make deposit under S. 24(1) of the Act

Suit could not be dismissed in case of no deposit of Zar-e-Soem when in determining probable value of suit property, court had not entered into any probe, particularly when plaintiff had specifically moved Trial Court for such determination much before the target date fixed by court for deposit of Zar-e-soem

Trial Court had failed to determine probable value of property

Trial Court while rejecting plaint of suit had completely ignored the fact that when no amount of Zar-e-Soem was fixed by Trial Court and review petition remained un-disposed of, plaintiff was at liberty to deposit any amount towards Zar-e-Soem

Plaintiff deposited one-third of amount as shown to be one year's average

Plaintiff's case was not that of non-deposit towards Zar-e-Soem, or deposit beyond limitation of thirty days

Suit was proceedable on its merits and its plaint was not to be rejected under O. VII, R. 11, C.P.C.

Impugned order of rejection was not sustainable under law

High Court by setting aside the impugned order, restored suit proceedings directing Trial Court to dispose of application already pending for determination of probable value of property

Appeal was allowed accordingly.

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.

Plaintiff had filed suit after about 4 years of his knowledge of sale agreement and failed to point out any material irregularity in the impugned judgment, inviting interference of Chief Court

No misreading of evidence had been pointed out

Petition was dismissed.

Pre-emptor in his plaint inadvertently mentioned the sale consideration paid by vendee to vendor as Rs. 14,00,000, instead of the actual figure of Rs.14,40,000 mentioned in the mutation

Trial Court ordered pre-emptor to deposit one-third of the sale consideration of the property in court

Pre-emptor deposited in court 1/3rd of the amount shown in the plaint i.e. one-third of Rs. 14,00,000

Vendee took the objection that pre-emptor made a short deposit in the court, as the amount to be deposited should have been 1/3rd of Rs. 14,40,000 mentioned in the mutation

Trial Court dismissed the pre-emption suit for non-compliance with order of the court to deposit 1/3rd of the actual sale consideration in court

Appellate Court allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court and remanded the case to Trial Court

Validity

Where a court wanted to impose a penalty like dismissal of suit on account of deposit of deficient amount, then it should be clearly established that it was the pre-emptor who deliberately committed the default and it was not a bona fide mistake

In the present case, due to mistake of fact the draftsman/lawyer (for pre-emptor) inadvertently without any mala fide intent mentioned the sale consideration as Rs.14,00,000 , instead of Rs.14,40,000

For the correction of the same, the, pre-emptor promptly applied to the Trial Court for amendment of the plaint, which fact showed his bona fide intention

Pre-emptor had not gained any undue benefit because he had sincerely and faithfully complied with the initial court order by depositing a huge amount of Rs.4,66,670 thus by not depositing the additional amount of Rs.13,330, he could not be held to be in deliberate non-compliance with the court order

Trial Court had not specifically directed pre-emptor to deposit 1/3rd of the sale consideration mentioned in the mutation

Court was duty bound to clearly tell the plaintiff/pre-emptor that he was required to deposit 1/3rd of the sale consideration shown in the sale deed or mutation etc.

Once a wrong was committed by the Trial Court causing prejudice to the pre-emptor, then, the pre-emptor could not be visited with penalty of dismissal of his suit

Appellate Court had rightly set-aside judgment of Trial Court and allowed the pre-emptor to make good the deficiency by depositing the remaining amount in court

Supreme Court directed that if the pre-emptor had not deposited so far the remaining amount of Rs.13,330 as worked out on the basis of 1/3rd of the total sale consideration of Rs.14,40,000, then he should deposit the same in Trial Court within twenty days

Appeal was dismissed accordingly.

Plaintiff (petitioner) filed suit for possession through pre-emption to pre-empt sale in his favour claiming that sale consideration mentioned in mutation was inflated as compared to actual sale price as assessed by plaintiff

Trial Court inadvertently allowed plaintiff to deposit one third of sale price, not as mentioned in mutation, but as assessed by plaintiff, within thirty days, which he deposited with delay of one day

Defendant/vendee filed application before Trial Court for dismissal of suit of plaintiff on ground of default in payment of pre-emption amount within the given time, which the Trial Court dismissed holding that plaintiff had complied with the direction having deposited one third of sale price as required; and revisional court affirmed said order of dismissal on ground that party should not have suffered by act of court

Validity

Findings of Trial Court were misconceived and view taken by revisional court was misplaced

Courts below had wrongly interpreted act of court and had not evaluated available record in true perspective

Sale price assessed by plaintiff would not be relevant in any eventuality for deposit of one third amount of pre-emption

Sale con-sideration mentioned in instrument had to be considered for said purpose in terms of S. 24 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Court Moharrir, while making report on said application of plaintiff, was required to see instrument on basis of which suit had been filed

Plaintiff was also responsible for negligence and non-compliance of the direction and he had to stand on his own legs to pursue his case and later on to prove through evidence

Maxim "Actus curiae neminem gravabit" was not applicable to the present case

Courts below also ignored the fact that plaintiff had deposited the amount with delay of one day

Period of one month once given was not extendable

Plaintiff had failed to deposit the amount within given time and his suit was liable to be dismissed

Findings of courts below were not sustainable

High Court setting aside impugned judgments of courts below dismissed the suit in terms of S. 24(2) of Khyber Pakhtunkhwa Pre-emption Act, 1987.

Trial Court was required to order the plaintiff to deposit 1/3rd of the sale price of the property in cash when suit was filed, within such period as the court might fix

If sale price was not mentioned in the sale consideration or in the mutation, the court was bound to order for deposit of 1/3rd of the probable value of suit property

Trial Court had failed to direct the plaintiff for deposit of 1/3rd of the sale consideration on the first date of institution of suit for possession through pre-emption but ordered for deposit of 1/3rd pre-emption money after four months from institution of suit when defendants filed written statement

Trial Court was bound to assess the probable value of the property in case no sale price was mentioned in the sale deed or in the mutation

Order for deposit of 1/3rd pre-emption money within 30 days passed by the Trial Court was not in line with law as no specific amount had been mentioned to be deposited

Plaintiff had failed to deposit zar-e-soam within 30 days as per direction of the Trial Court which was intentional on his part

Such act of pre-emptor could not be termed as act of the court

Plaintiff was bound to deposit zar-e-soam within 30 days as required by the Trial Court but the same was deposited with the delay of two days

Plaintiff could not be exonerated from his fault due to certain lacunae in the orders of the court

Pre-emptor was bound to comply with the time fixed by the Trial Court for deposit of 1/3rd pre-emption money

Pre-emptor could neither be allowed to apply for further extension nor court had any power to extend the time for deposit of zar-e-soam

Any failure on the part of pre-emptor would deprive him of success in getting the pre-emption decree

If Trial Court had failed to order for deposit of 1/3rd pre-emption money, plaintiff was bound to move an application for the deposit of 1/3rd pre-emption amount and pay the same

Plaintiff could not be given right to ignore law rather he was supposed to abide by law and deposit the amount within 30 days

Pre-emptor was not vigilant enough and was not entitled to any leniency

Order of the court had not been complied with nor any good reason had been assigned for non-deposit of zar-e-soam within the specific period

If Trial Court had failed to pass an order for deposit of zar-e-soam on the first date of filing of pre-emption suit, the same could be passed at subsequent stage and pre-emptor would be bound to obey the same in letter and spirit as if the same had been passed on the first date of filing of suit

When the provisions of any enactment required some act to be done, it was to be done in the manner as prescribed in the statute and if the same was not done accordingly, the consequences would be penal in nature

Suit of plaintiff was liable to be dismissed on account of non-compliance of order passed by the court for deposit of 1/3rd pre-emption amount

Trial Court had rightly dismissed the suit of plaintiff

No infirmity or illegality was pointed out in the impugned order passed by the Trial Court

Appeal was dismissed in circumstances.

Limitation for deposit of 1/3rd pre-emption amount was thirty (30) days from the date of institution of suit.

Plaintiff mentioned sale price of land sought to be pre empted as Rs.6,00,000/- and as per direction of the court deposited 1/3rd of the said sale price

Defendants relied on an agreement to sell wherein sale between the parties was stated to have been effected at Rs.40,88,000/

Defendants filed application that plaintiff be directed to make up the deficiency in the sale price and deposit 1/3rd of the stated sale amount which was accepted

Validity

Trial Court had failed to apply its independent mind to the facts of the case

Impugned order had been passed in a mechanical fashion

Huge difference of sale amount as stated by the plaintiff and defendants was on record

Trial Court was bound to apply its independent mind

Prices alleged by both the parties were not based on any document to which presumption of correctness could be attached

Evidence was required to determine price of suit property alleged by both the parties

Both the courts below were bound to ascertain the probable market price of suit land by adopting the mode contemplated in S.24 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Impugned judgments passed by both the courts below were set aside and Trial Court was directed to ascertain the probable market value of suit property and direct the plaintiff to deposit 1/3rd of the price so fixed and then proceed with the case in accordance with law

Constitutional petition was allowed in circumstances.

Plaintiff alleged in his suit that transaction was sale in disguise of gift which was purported to damage his pre-emption right

All witnesses produced by plaintiff along with his own deposition did not mention payment of consideration

Statement of witness produced in defence categorically affirmed the transaction as gift which was not assailed in cross-examination

Trial Court dismissed the suit on ground that plaintiff had failed to establish his claim that transaction was not a gift but a sale and he had also failed to establish performance of Talbs

Appellate court affirmed the finding of Trial Court

Validity

To prove a gift to be a sale, plaintiff had to satisfy judicial conscience of court through cogent and convincing evidence

Statement of defendant not questioned in cross examination would also be deemed to be correct

Plaintiff had challenged gift on basis of circumstances presumptive in nature but to prove the same plaintiff did not make any effort

Mere assertion of plaintiff in plaint could not shift burden to defendant

Gift was to be considered as genuine even if made to avoid pre-emption because a device to avoid pre-emption was permissible provided it was not a disguise.

Period of one hundred and twenty days had been provided for a suit for possession through pre-emption from the date of registration of sale in case same was effected through registered sale deed.

Plaintiff filed pre-emption suit wherein defendant moved an application for rejection of plaint on the ground that suit was time-barred

Application was dismissed concurrently

Validity

Period of one hundred and twenty days should be computed from the date of registration of sale in case same was effected through registered sale deed

Provisions with regard to issuance of notice by the Registrar had no nexus with the period of limitation

Provision of S.32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 was directory in nature whereas S.31 of the said Act was mandatory

Both the courts below had erred while computing the period of limitation

Requirement of limitation would go to jurisdiction and an order made in disregard of the requirement would be without jurisdiction

Court must dismiss the suit, appeal or application if it was hit by limitation

Present suit was filed after lapse of five months and twenty one days which was time-barred

Such like plaint should be buried at its inception

Both the courts below had wrongly dismissed the application for rejection of plaint

Impugned orders passed by both the courts below were set aside and plaint was rejected.

Plaintiff moved an application for correction of date of sending notice of Talb-i-Ishhad in the plaint which was accepted by the Trial Court but Appellate Court dismissed the same

Validity

Appellate Court had failed to appreciate the issue raised before it which was with regard to correction of date of sending of notice of Talb-i-Ishhad as 31-05-2010 instead of date of drafting of notice i.e. 29-05-2010

Such an omission was not fatal for suit of pre-emption

Even omission to mention date of notice of Talb-i-Ishhad in the plaint would stand cured by annexing the copies of notices of Talb-i-Ishhad along with postal/acknowledgment receipts

Date of drafting of notices of Talb-i-Ishhad was 31-05-2010 instead of 29-05-2010

Appellate Court had committed error to disallow the proposed amendment

Impugned order was not sustainable which was set aside and that of Trial Court was restored

Application for correction of date of sending notice of Talb-i-Ishhad in the plaint was accepted

Constitutional petition was accepted in circumstances.

Mere residence of the plaintiff and his witnesses at Karachi did not entitle them to ask for the appointment of commission

Pre-emption law was a special law in which the performance of Talb-i-Muwathibat and Talb-i-Ishhad were the determining factors for success

Law had provided for the trial in an open court through recording of the statements of the witnesses

Plaintiff had never appeared before the Trial Court and it was not left to his sweet will and prerogative to examine himself and his witnesses at the time and place of his choice

Plaintiff had only pleaded his inability to attend the Trial Court but he had not pinpointed any disability

Power to issue commission for recording statement was not unrestricted and for liberal exercise

Constitutional petition was accepted and impugned judgments / orders were set aside.

No evidence was produced to show that sale price and possession of land had been passed on to vendee before attestation of mutation, in given circumstance, sale would be deemed to have completed on attestation of mutation, after which right of pre-emption had accrued

Plaintiff had performed Talb-i-Muwathibat before attestation of mutation, which was of no consequence

Plaintiff witness had not deposed about date of knowledge of sale and performance of Talb-i-Muwathibat and stated contradictory times of alleged performance of Talb-i-Muwathibat

Such discrepancies in evidence were material, and the same were fatal for right of pre-emption

Plaintiff had failed to prove performance of Talbs in terms of S. 13 of Punjab Pre-emption Act, 1991

Plaintiff, in terms of S. 30 of Punjab Pre-emption Act, 1991, was bound to file suit within four months from date of attestation of mutation

Said limitation, in the present case, expired during summer vacations of courts, and plaintiff had filed suit on first working day after vacations, so the suit was within time

Findings of courts below on point of limitation were not sustainable, and the same were set aside

As both plaintiff and vendee were admittedly co-sharers in same Khewat, both courts below had, therefore, rightly found that both of them were equally entitled to right of pre-emption

Concurrent findings of both courts below were based on proper appraisal of evidence

Plaintiff failed to point out any misreading or non-reading of evidence in impugned judgment and decree

Failure of plaintiff to prove performance of Talbs was sufficient to non-suit him

Findings of courts below were maintained except with regard to computation of limitation

Revision petition was dismissed in circumstance.

Preemption suit was filed on 27-04-1997 and first time decree was passed in that suit by Lower Appellate Court on 23-12-1982 was having no pecuniary jurisdiction to entertain and decide the appeal

Decree was set aside by High Court and the order was maintained by Supreme Court while refusing to grant leave

No decree existed in favour of pre-emptors to make their case in the ambit of S.34(2) of Punjab Pre-emption Act, 1991, to continue in accordance with the provisions of repealed Act

Decree granted by Lower Appellate Court dated 23-12-1992 could not help pre-emptors as the same was void ab initio and it could not be deemed to have ever passed before 01-08-1986

High Court set aside the judgment and decree passed by Lower Appellate Court resultantly suit filed by pre-emptors was dismissed

Appeal was allowed accordingly.

Plaintiff moved application before the court of Civil Judge for granting extension to deposit incidental charges fixed by the Appellate Court which was dismissed concurrently

Validity

For extension of time plaintiff was required to move the court which had passed the order for deposit of incidental charges but he opted to move the court of Civil Judge which had no jurisdiction

Time for deposit of incidental charges had already expired and order of Civil Judge was in accordance with law

Civil Judge had rightly observed that the plaintiff was required to move for extension of time before the court which passed the order

For invoking constitutional jurisdiction plaintiff was required to show some jurisdictional defect committed by the courts below

No jurisdictional defect was found in the orders passed by the courts below

Constitutional petition was not maintainable which was dismissed.

Under the Punjab Pre-emption Act, 1913, a superior right of pre-emption on the basis of ownership in the estate, could only be claimed when such ownership was vested and complete

Where a person was a ta'iundar only and not the full owner, his right of pre-emption based on ownership in the estate would only arise after title had been transferred to him.

Pre-emption suits filed by plaintiffs (purported pre-emptors) were decreed by the Trial Court in the ratio 50% in favour of each set of plaintiffs on the basis that they had superior right of pre-emption on basis of ownership in the estate

First Appellate Court reversed the findings of the Trial Court and proceeded to dismiss the suits

High Court set aside judgment of First Appellate Court and restored the decree passed by the Trial Court

Contention of plaintiffs was that High Court had rightly decreed their suits as they had a superior right of pre-emption being owners in the estate while the vendees had no land in the estate

Validity

Plaintiffs based their claim of superior right of pre-emption on an alleged purchase of some property in the estate at a date earlier than the vendee

Said alleged purchase by plaintiffs was made from a person, who himself was not the full and absolute owner of the property, and was only granted certain rights in the land by the Settlement Department

Evidence on record, including the relevant mutations and jamabandis, showed that the person from whom the plaintiffs allegedly purchased the property in the estate was only a ta'iundar

Government was the owner of such land and only those rights had been transferred to the said person which had come to vest in the Federal Government by operation of S. 4 of the Displaced Persons (Land Settlement) Act, 1958

Revenue record also showed that said person was not the owner of the land but only a cultivator

Superior right of pre-emption vested in that person under the Punjab Pre-emption Act, 1913 who was the owner in the estate and not a mere cultivator

To deprive the vendee-defendants of their right to property on the basis of the plaintiffs being owner in the estate, the minimum requirement of law would be for the plaintiffs to prove that they were vested with full title

Such requirement of proving full title was not fulfilled by the plaintiffs, as such they had not been successful in establishing the foundation on which their claim to a superior right of pre-emption was based

Appeal was allowed accordingly and pre-emption suits filed by plaintiffs were dismissed.

Purported pre-emptor had instituted the suit for pre-emption, claiming the status of an owner in the same khata on the basis of an oral sale

Section 54 of the Transfer of Property Act, 1882, was applicable in the State of Bahawalpur at the relevant time, requiring the sale to be effected through an instrument in writing, which obviously would necessitate its registration under the Registration Act, 1908

Oral sale, therefore, was invalid and not sufficient to maintain a suit for pre-emption on the basis thereof

Oral sale in view of S. 54 of the Transfer of Property Act, 1882, did not clothe the purported vendee with a right sufficient to maintain a suit for pre-emption on the basis thereof

Appeal was allowed accordingly and pre-emption suit was dismissed.

Land in dispute was initially allotted under the Colonization of Government Lands (Punjab) Act, 1912, and by virtue of State of Bahawalpur, Notification No.74, dated 12-6-1944, such land was excluded from the purview of the Punjab Pre-emption Act, 1913, for which purpose a notification under S. 8(2) of the said Act was issued

Sale of disputed land in the present case took place in the year 1966 during currency of the said notification under S. 8(2) of the Punjab Pre-emption Act, 1913

Evidence on record showed that disputed land was initially allotted as colony land, and as such it was excluded from the exercise of the right of pre-emption

Upon issuance of notification under S.8(2) of the Punjab Pre-emption Act, 1913, the right of pre-emption, if any, stood extinguished

Consequently, the sale in question pertaining to the land in dispute was not pre-emptable

Appeal was allowed accordingly and pre-emption suit was dismissed.

Land once declared as a colony land and subjected to the Colonization of Government Lands (Punjab) Act, 1912, would remain subject to the said Act and thus exempt from pre-emption, notwithstanding that the land had ultimately become privately owned.

If from the evidence it was proved that the pre-emptor had performed the necessary talbs according to law only then case to the next issues i.e. determination of real price paid by the vendee to the vendor or any improvement, etc; made in the pre-empted land was to be proceeded but in case it was found from the evidence that pre-emptor had failed in the performance of necessary talbs then in that eventuality the other issues of the case were eclipsed and there was no need to further proceed with the case on the other issues

In the present case, the pre-emptor had not performed the requisite Talb-e-Muwathibat which was a backbone in establishing the right of pre-emption

Failure in the performance of Talb-e-Muwathibat was sufficient to non-suit the pre-emptor without dilating upon the other issues raised in the case.

Contention of plaintiffs was that Registrar had not given notice of sale of suit land and period of limitation for filing suit was to be computed from the date of knowledge of pre-emptors whereas defendants contended that suit was barred by time and postman was not examined to prove Talb-i-Ishhad

Suit was decreed concurrently

Validity

Defendants purchased suit land through registered deed on 6-2-2002 on the basis of which mutation was attested on 16-12-2003 and suit was filed on 31-3-2004

Registrar had not complied with the provision of S. 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 but same would not change the explicit and mandatory provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 which had provided a fixed period for filing of suit in each situation

No extension in limitation in S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had been provided if Registrar or Revenue Officer had failed to give such notice

Both Ss. 31 & 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 should be read independently in nature and spirit without there being any nexus between both of them

Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 was mandatory while S. 32 was directory in nature as same did not provide any penal consequences in case of non-compliance

Provisions of statute should be construed and interpreted in such a way that another provision of the same statute would dovetail in to each other in such a way that entire statute should remain a well-knit, integrated and workable piece of legislation

Section 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987 had regulated the course and manner for filing of suit for possession through pre-emption within the prescribed limit of time

Court could not modify the clear intention of law maker while interpreting certain provisions of law

Court was not to make law or construe in a manner which might result as "making the law"

Provisions of S. 32 of Khyber Pakhtunkhwa Pre-emption Act, 1987 could not overrule or dilute the provisions of S. 31 of Khyber Pakhtunkhwa Pre-emption Act, 1987

Plaintiffs had not filed suit within one hundred and twenty days from the date of registration of sale deed which was barred by time and was liable to be dismissed

Both the courts below had wrongly decided the issue of limitation by holding that suit was within time

Statements of witnesses of plaintiffs were inconsistent on material aspects of performance of Talb-I- Muwathibat which would be fatal to thecase of pre-emptors

Pre-emptors were bound to examine the postman to prove service of notice of Talb-i-Ishhad but they did not produce him

Plaintiffs had failed to prove performance of Talb-i-Ishhad

Proof of superior right of pre-emption, performance of Talb-i-Muwathibat and then Talb-i-Ishhad in chronological order were sine qua non for successful exercise of right of pre-emption

Suit of plaintiffs was bound to fail if same was deficient of any of one of such legal requirements

Both the courts below had failed to appreciate the evidence available on record in its true perspective and reached to a wrong conclusion by decreeing the suit

Impugned judgments and decrees passed by both the courts below were set aside and suit was dismissed

Revision was accepted in circumstances.

Period of limitation for filing a suit for possession through pre-emption was one hundred and twenty days commencing from the date of registration of sale-deed in case of an alienation of property through the same

Such period was to commence from the date of attestation of mutation when property was transferred through attestation of sale mutation and in case of alienation of property otherwise through a registered sale-deed or a mutation was to be counted from the date on which vendee had taken physical possession of the property

Said period of limitation was to start from the date of knowledge of pre-emptor if sale was not through a registered sale-deed, a mutation or taking of physical possession of vendee.

Registrar while registering sale deed or Revenue Officer attesting the mutation of sale was bound to give public notice with regard to such registration or mutation within two weeks of registration or attestation of the same

Notice should be deemed to have sufficiently been given if it was displayed on the main entrance of a mosque or other public place of village or where property was situated.

Limitation for filing suit for possession through pre-emption was 120 days which would start from the date of attestation of registered deed, mutation, induction of vendee into possession of property and through other document in case transaction had taken place otherwise

Pre-emptor was not bound to wait for registration of deed or for the attestation of mutation

Sale could be even oral and if it had come to the knowledge of pre-emptor then right of pre-emption could be exercised by performing Talb-i-Muwathibat

Pre-emptor was bound to prove the date of performance of Talb-i-Muwathibat, time and place in accordance with law

Pre-emptor was not bound to produce specific number of witnesses to prove "Talb-i-Muwathibat" but once it was alleged by him that Talb-i-Muwathibat was performed in presence of such and such witnesses then he was bound to produce all such witnesses

Plaintiff and his witnesses were bound to prove and give details of date, time and place with regard to performance of Talb-i-Muwathibat

Witnesses of plaintiff had not supported the stance of plaintiff with regard to the information as to the date, time and place mentioned in the plaint

Plaintiff was bound by the deposition made in the plaint about his witnesses

Informer of sale, in the present case, had not deposed that plaintiff performed Talb-i-Muwathibat which was sufficient to non-suit the pre-emptor

Statements of witnesses of plaintiff were contrary to each other

Plaintiff could not be exonerated from the statements made by his witnesses

Departure from pleadings was not permissible under the law

Vital contradictions between the statements of plaintiff and his witnesses were on record which were fatal to the case

Evidence produced by the plaintiff was not confidence inspiring to prove the incident of Talb-i-Muwathibat

Subsequent improvements made by the pre-emptor would amount to contradictions which would be fatal to the case

Both the courts below had decided the matter with conscious and application of independent mind and rightly non-suited the plaintiff for want of proof of "Talbs"

Revision was dismissed in circumstances.