This revision petition assails the judgments and decrees dated 11.12.2000 and 15.5.2002 passed by the Civil Judge Additional District Judge, Kharian, respectively, deciding lis against the petitioner.
2. A short factual background of the case is that respondent purchased land measuring 20 kanals of village Garatian Tehsil Kharian District Gujrat vide Mutation No, 812, sanctioned on 15.8.1994, for a consideration of Rs, 3,00,000/-. This sale was pre-empted by the petitioner claiming his superior pre-emptive right as a co-sharer in the khata wherefrom the land was sold to the respondent being a "Shafi-Sharik". "Shafi-Khalit" and Shafi Jar". He claimed that sale in question came to his Knowledge on 19.9.1994 and he immediately exclaimed his intention of preempting it, having superior right as compared to the respondent and thus fulfilled talab-e-Muwathibat in the presence of witnesses whereafter by sending a notice on 22.9.1994 in written, attested by two truthful witnesses under a registered cover acknowledgment due, performed talab-e-Ishhad and then by filing the suit on 4.10.1994 discharged his obligation of performance of talab-e-Khusumat.
3. The respondent being defendant in the suit controverted the allegations in the plaint of the petitioner, by filing his written statement, which necessitated framing of issues and recording of evidence. The learned trial Judge after doing the needful and according to his appraisal of evidence, dismissed the suit of the petitioner on 11.12.2000. The petitioner was non suited in view of the findings of the trial Court on Issue No, 8 which related to performance of talabs in terms of Section 13 of the Punjab Pre-emption Act 1991.
The petitioner aggrieved of the decision of the trial Court dated 11.12.2000 filed an appeal before the Additional District Judge Kharian but remained unsuccessful as his appeal was dismissed on 15.5.2002, affirming findings of the trial Court on Issues Nos, 8 to 11. Petitioner has now come up before this Court, in revisional jurisdiction.
4. Learned counsel for the petitioner submits that both the Courts, below have seriously misread the evidence on -the file whereby it was abundantly proved that the petitioner has performed all the three talabs, as required by law, immediately/abruptly and thus claimed that the petitioner has wrongly been non suited. He further submits that view taken by the Courts, below that as the petitioner himself did not appear in the witness box, talab-e-Muwathibat is not proved, is misconceived, because the son of the petitioner who was also his constituted attorney, appeared as PW.4 and categorically deposed that the petitioner in his presence had expressed his intention of filing pre-emption suit against the sale and thus performed the required talab-e-Muwathibat.
Learned counsel for the petitioner further contends that view of the Courts below regarding talab- e-Ishhad is also erroneous because notice (Ex. P.4) sale-deed behalf was duly proved to have been attested and served on the respondent, by his witnesses PW. 1 to P.W.
3. This notice, according, to him, was drafted by an Advocate but was written on behalf of the petitioner and was also thumb marked by him, and, as such, it could not be said that the petitioner did not issue notice of talab-e- Ishhad, in his own name. He, sale-deed behalf referred to Section 14 of the Punjab Pre-emption Act 1991 and to the case of Kaley Khan. vs. Ayub Khan (PLJ 1992) Peshawar 67) to contend that an agent is authorized under the law to issue notice of talab-e-Ishhad in terms of Section 13 of the Act, ibid.
5. Learned counsel ,appearing on behalf of the respondent besides refuting arguments of the petitioner supported the judgment of the two Courts below and urged that the petitioner did not performed talabs in accordance with law as he himself neither appeared in the witness box to support the averment in the plaint nor personally issue, notice of talab-eIshhad and Ex. P.4 which has been issued by an Advocate, cannot be consideied as a notice on behalf of the petitioner. The learned counsel for the respondent urged that concurrent finding of facts, returned by the two Courts below are immune from scrutiny by this Court, in the revisional jurisdiction.
6.I have anxiously considered the arguments of the learned counsel for the parties and have examined the record, appended with the revision petition. Petitioner, besides averring in his plaint of making talab-eMuwathibat and talab-e-Ishhad, produced witnesses, besides statement of his attorney as PW.
4. PW. 1 is Muhammad Younis, (Postal Clerk), who proved issuance of Receipt No, 591 dated 22.9.1994 as Ex. P. 1, to have been issued by the Post Office, against a registered letter in the name of the respondent. PW. 2 is Aurangzeb (Post Man). According to whom registered Letter No, 591 dated 24.9.1995 was received in the Post Office and was onwards delivered to the respondent, on the same day. This witness also proved signatures of the respondent on receipt Acknowledgment due, which was marked, as A. PW. 3 is again a Post Man, who distributed the registered letter to the respondent and obtained his signature in token of receipt thereof. PW. 4 is Muhammad Asghar son of the petitioner who deposed that on 19.9.1994 in his presence, Riasat informed his father regarding the sale in question whereupon his father immediately exclaimed his intention of preempting the sale, having superior pre-emptive right. He also deposed that at this time another person Safdar was also present. PW. 5 Riasat Ali and PW. 6 Safdar are the witnesses of notice Ex. P. 4 which has been proved by them to bear their signatures/thumb impression. Both these witnesses unanimously deposed that notice Ex. P. 4 was written in their presence and was thumb marked by the petitioner. Statements of PW. 4 to 6 if read together, leave no room for doubting performance of talab-e-Muwathibat by the petitioner, instantly on gaining of knowledge of the sale from Riasat Ali PW.
5. Petitioner while appointing his son as his attorney through Ex. P.
4/2, mentioned that he due to his old age is unable to follow the proceedings in his suit and thus authorized his attorney to make a statement on his behalf, before the Court. Age of the petitioner is mentioned in Ex. P. 4/2 is 80 years. In view of the provisions of Section 14 of the Punjab Pre-emption Act 1991, an agent is authorized to Make even demand on behalf of the preA emptor and these provisions became under scrutiny in the case of Kala Khan vs. Ayub Khan (PLJ 1992 Peshawar 62) wherein it was held that an agent of the pre-emptor can competently do the needful on behalf of his principal. Above all PW. 4 in his statement before the Court which remained un-shettered during the cross-examination, categorically stated that the petitioner performed talab-e- Muwathibat in his presence. I think that son of the pre-emptor who is also a duly constituted attorney can validly prove the making of talab-e-Muwathibat, on behalf of his principal and if the preemptor himself did not paper in the witness box, due to his old age and ailing health, he cannot be non-suited on this account because making of talab-eMuwathibat, other-wise, flows from the evidence on the file of its proof, to have been made.
7. On the question of performance of talab-e-Ishhad by the petitioner, Courts below have taken the view that since, notice Ex. P. 4 has been written by an Advocate in his own name, it cannot be considered as a notice from the petitioner and consequently concluded that the petitioner did not performed talab-e-Ishhad. Notice Ex, P.4 has no doubt been drafted by. Ch. Sajjad Ahmad Advocate but it has been prepared and written on behalf of his client Muhammad Shafi, the petitioner. This notice has at the bottom, name of the petitioner beneath which it has been thumb marked by him. I have examined the entire notice which in no manner can be graded as notice from the Advocate rather it is 'a notice on behalf of the petitioner from his counsel. Besides it Section 14 of the Punjab Pre-emption Act, 1991 authorized an agent to make the required demands on behalf of the pre-emptor and a similar view was taken by the High Court of Peshawar jurisdiction, in the case of Kala Khan vs. Ayub Khan reported. as (PLJ 1992 Peshawar 67) and it was mandated that notice by the appointed agent, conveying the talab-e-Ishhad is sufficient compliance of the law. Hon'ble Supreme Court of Pakistan in the alighted judgment in the case of Muhammad Gul Versus Muhammad Afzal reported as (1999 SCM R 724) has very candidly mandated that notice expressing talab-e-Ishhad sent to the pre-emptor after 10 days of making of talab-e-Muwathibat coupled with statement of the pre-emptor on oath, is substantial compliance of legal requirements, of Section 13(3) of the Punjab Pre-emption Act, 1991. In another case of Abdul Malik vs. Muhammad Latif (1999 SCM R 717), the Honourable Supreme Court or tins country while scanning provisions of Section 13 (3) of the Punjab Pre-emption Act 1991, very graciously observed that notice of talab-e-Ishhad attested by the two witnesses, mentioned performance of immediate talab-e-Muwathibat, amounts to substantial compliance of the provisions of law. A- similar view was again affirmed by the Honourable Supreme Court, in the case of Haji Noor Muhammad vs. Abdul Ghani and 2 others reported as 2000 SCM R 329.
8. Petitioner having pleaded performance of talab-e-Muwathibat on 19.9.1994 and talab-e-Ishhad on 22.9.1994, filed suit in hand on 4.10.1994-has substantially proved the performance of all the three talabs and thus discharged the onus of proof, placed on his shoulders. Both the Courts below have taken an incorrect view which is contrary to the evidence on the file and thus, their decisions are tainted with material irregularity and are not sustainable under the law. I consequently set- aside findings of both the Courts below on Issue No, 8 and answer it in favour of the petitioner/plaintiff.
9. Since Issues Nos, 1 to 7 and 9 have concurrently been answered in favour of the petitioner and there being no cross-appeal or objection by the respondent findings on these issues are affirmed.
As regards Issue No, 11 Muhammad Shafi son of Ahmad Din is un-deliably a co-sharer in the khata in question as evidenced in Ex. P.5 jamabandi for the year 1994-95, whereas respondent has no such superior qualification of being "Shafi-Sharik" and thus I hold that the petitioner has a superior pre-emptive right as against the sale in favour of the respondent.
10. For what has been discussed above I conclude that the petitioner (Muhammad Shafi) has a superior pre-emptive right and has substantially performed all the three talabs are required by Section 13 of the Punjab Pre-emption Act 1991 and thus his suit could not have been dismissed. I accordingly accept this revision petition and set-aside the F judgments and decrees of both the Courts below, and grant the petitioner decree for possession through pre-emption as prayed subject to deposit by him an amount of Rs, 3,00,000/- after deducting 1/3rd amount if any already deposited by him, on or before 2.3.2004 failing which the suit of the petitioner/plaintiff shall be deemed to have been dismissed. There will be no order as to costs.