' The appellant /plaintiff Noor Din, through this second appeal, has assailed the judgment and decree dated 19-3-1995 passed by Additional District Judge, Sheikhupura , whereby respondent/ defendant's appeal against the judgment and decree dated 26-7-1994 passed by Civil Judge Ist Class, Ferozewala, was accepted, the aforesaid judgment and decree passed by the trial Court was set aside and the suit for possession through pre-emption instituted by the appellant/plaintiff was dismissed with costs.
2. The relevant facts are that suit-land - measuring 39 Kanals, 6 Marlas, bearing Khewat No.65, Khatuni No.179, Rectangular No.23, comprising Killas's Nos. 13(8K-OM), 14(6K-14M), 17(5K-6M), 18(8K- OM), 19(8K-OM), 20/2(2K-10M) and 27(0K-16M) situated in Mauza Ladheywala Virka Tehsil and District, Sheikhupura, was sold for a consideration of Rs.1,00,000 by the vendor Eidu to the vendee/defendant/ respondent Inayat Ullah, vide registered sale-deed registered on 19-2-1991. The said sale-deed has not been produced in evidence by the appellant/plaintiff but the factum of sale as recorded above, stands admitted by the defendant/respondent in his written statement.
The appellant/plaintiff pre-empted the sale through the present suit for pre-emption instituted on 18-5-1992. He alleged in para.2 of his plaint that he came to know about the aforesaid sale on , 5- 5-1991 and he immediately, on the same day, in a gathering of village, claimed his superior right of pre-emption and declared his intention of filing pre-emption suit. It was stated that the suit-land had been sold for a consideration of Rs.85,000 and in order to defeat his right of pre-emption the ostensible price of Rs.1,00,000 was entered in the sale-deed and that he sent a registered notice to the respondent/ defendant on 9-5-1991, for making Talb-iIshhad but the respondent/defendant refused to receive the same. He claimed superior right of pre-emption on the basis of being a co- sharer in the Khata, having common boundary lines, common passage and common source of irrigation. The suit was contested by the respondent/defendant. It was stated that the Talbs had not been made, in accordance with law, that the appellant/plaintiff had refused to purchase the land in dispute and he was estopped to institute the present suit due to his words and conduct, that the suit was not properly valued for the purpose of court-fee and jurisdiction, that the sale price of Rs.1,00,000 was fixed in good faith, the same was paid to the vendor and it was its market value and that the appellant/plaintiff did not have any superior right of preemption, as alleged by him, against the respondent/defendant, therefore, he had no cause of action.
3. The learned trial Court framed the following issues, on 17-10-1991:--
(1) Whether the suit is liable to be dismissed in view of preliminary Objections Nos.1 and 2 of the written statement? OPD.
(2) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(3) Whether the suit has been insufficiently valued for the purposes of court-fee and jurisdiction, if so what is the correct valuation? OPD
(4) Whether the plaintiff has no cause of action? OPD
(5) Whether the suit has been filed with ulterior motives? OPD
(6) Whether the ostensible sale price was fixed as Rs.1,00,000, if so, its effects? OPD
(7) Whether the plaintiff is entitled to the decree of pre-emption, as prayed for in the plaint? OPP
(8) Relief.
4. After recording the evidence of both the parties, it was discovered that the necessary , issues, on merits regarding superior right of pre-emption and Talbs had not been settled. The learned trial Court, therefore, framed the following additional Issues, on 8-1-1994:-- Additional Issues 7-A. Whether the plaintiff has superior right of pre-emption qua the vendee defendant? OPP 7-B If the above Issue No.7-A is proved in affirmative whether the plaintiff has fulfilled all the requirements of Talbs and other conditions of law? OPP
5. The learned counsel for the parties have confined themselves before me, only to Issues Nos.7-A and 7-B, which are issues, on merits.
6. The appellant/plaintiff produced Waliuddin as P.W.1, Mangta as P.W.2 and his general attorney Muhammad Yousaf as P.W.3 and also produced the following documentary evidence:-
(a) Exh. P/1 Sealed registered envelope, containing notice sent by the appellant/plaintiff to respondent/defendant.
(b) Exh.P/2 Copy of Register Haqdaran Zamin (record of rights) for the year 1982-83.
(c), Exh.P/3 Copy of Register Haqdaran Zamin (Record of Rights) for the year 1967-68.
(d) Exh.P/4 Copy .Of Register Haqdaran Zamin (Record of Rights) for the year 1990-91.
7. P.W.1, Waliuddin did not give date of making Talb-i-Muwathibat/prompt demand. He merely stated that 1 year and 5-1/2 months ago at 6-00 p.m., he, Yousaf, Noor Din (appellant/plaintiff), Taj Din and Akram went to the house of the respondent/defendant Inayat Ullah and told him that the appellant/plaintiff was a co-sharer in the Khata and he should hand over the land in dispute to the appellant/plaintiff, after receiving its sale consideration but he refused. In the cross-examination, he admitted that he was the 'nephew of the appellant/plaintiff from the paternal side. He also stated in the cross-examination that the appellant/plaintiff had also previously obtained land measuring 9 Kanals from the vendor Eidu, in exchange but he did not know whether the appellant/plaintiff had obtained specific Khasra numbers or a share in the Khata.
' P.W.2 Mangta is witness of registered notice sent to the respondent/defendant. In the cross- examination, he admitted that he was illiterate, he therefore, did not read the notice himself and did not remember the date of notice and he did not say anything about the making of Talb-i- Muwathibat.
' P.W.3, Muhammad Yousaf, is the general attorney of the appellant/plaintiff. He admitted in the cross-examination that they had come to know about the sale of the land in dispute after 4/10 days and we went to respondent/defendant a few days thereafter . He also admitted that the land in dispute was being irrigated by Well (Chah) and that the respondent/defendant had installed his own Tubewell because the Well (Chah) was closed for the last 8/10 years and that the common path {{URDU TEXT}} used by the parties, was at a distance of one Khasra number from the lands of the parties.
8. The respondent/defendant, on the other hand, produced Eidu (Vendor ) as D.W.1, Muhammad Jamil as D.W.2 and himself appeared as D.W.3 and produced copies of Register Haqdaran Zamin (Record of Rights) for the year 1986-87 as Exh.D/1 and for the year 1990-91 as Exh.D/2.
9. The learned trial Court, vide its judgment/decree dated 26-7-1994 decreed the appellant/plaintiff's suit in his favour, against the respondent/defendant for a consideration of Rs.1,00,000. The respondent/defendant's appeal, as mentioned above, was accepted by the learned First Appellate Court, on 19-3-1995. Hence the present appeal.
10. I have heard the learned counsel for the parties and have also seen the record with their assistance.
11. The land in dispute was sold, vide registered sale-deed registered on 19-2-1991. The appellant/plaintiff alleged in para.2 of his plaint that he came to know about the sale in question on 5-5-1991, i.e. Two months and 16 days after the execution of the sale-deed and, on the same day, he immediately made Talb-i-Muwathibat by declaring his superior right of sale and by declaring his intention of pre-empting the sale. This assertion is not supported by the oral evidence produced by the appellant/ plaintiff. He himself did not enter in the witness-box. P.W.1 did not give any date of knowledge and on making Talb-iMuwathibat. His statement was recorded on 18-10- 1992. He merely stated that one year and 5-1/2 months ago Talb-i-Muwathibat was made at the house of Inayat/ respondent/defendant by the appellant/ plaintiff, in the company of Waliuddin (P.W.1), Muhammad Yousaf (P.W.3), Taj Din and Akram, P.W.2, Mangta did not say anything about the date of acquiring knowledge of sale or about the making of Talb-i-Muwathibat. P.W.3, Muhammad Yousaf, general attorney of the appellant/plaintiff stated that they acquired the knowledge of sale 4/10 days after the sale. That would make it much earlier than 5-5-1991, the date mentioned by the appellant/plaintiff in para.2 of the plaint. He has further stated that a few days thereafter they went to the respondent/ defendant. Meaning thereby that Talb-iMuwathibat was not made, there and then, on the date and time of acquiring the knowledge of the sale. In my opinion, the learned First Appellate Court, on the basis of the evidence produced by the appellant/ plaintiff, has correctly concluded that the appellant/plaintiff has failed to prove the making of Talb- i-Muwathibat and therefore, the appellant/plaintiff's right of pre-emption stood extinguished under section 13 of the Punjab Pre-emption Act, 1991 for not making Talb-i-Muwathibat, in accordance with law.
(7) The appellant/plaintiff has also failed to prove his superior right of pre- emption. The documentary evidence produced by him does not show that he is a D co-sharer in the Khata.
Exh.P/2 is a copy of Register Haqdaran Zamin (Record Rights) for the year 1982-83. It show ownership of the appellant/plaintiff measuring 5 Manals, 10 Marlas Killa No.20/1 of Rectangular No.23, being part of Khewat No.85 and Khatuni No.222 whereas the land in dispute, as per plaint is in Khewat No.65 and Khatuni No.179. This shows that the appellant/plaintiff is not a co-sahrer in the Khata where the land in dispute is situated. Similarly Exh.P/3 copy of Register Haqdarn Zamin (Record of Rights) for the year 1967 -68 relates to one Qaim Din. The learned counsel for the appellant has not been able to show its relevance. Exh.P/4 copy of Register Haqdaran Zamin (Record of Rights) for the year 1990-91 merely shows the ownership of the respondent/defendant of the land in dispute. Ott does not show the ownership of the appellant/plaintiff in the Khata. The appellant/plaintiff has not produced any documentary evidence in the shape of Canal Girdawari or Aqs Shajra {{URDU TEXT}}to successfully prove his assertion of having a common passage or the common source of irrigation or common watercourse, etc. The best evidence has thus been withheld by the appellant/ plaintiff. Presumption in law, in this regard, is against the appellant/ plaintiff. The oral deposition, in this regard, of P.W.3, Muhammad Yousaf, general attorney of the appellant/ plaintiff, is also of no help to the appellant/plaintiff. He has admitted in the cross- examination that the land in dispute is not being irrigated by canal water and is being irrigated, at present, by a tubewell installed by respondent/defendant because the well (Chah) is closed for the last 8/10 years. Similarly there is no evidence of common boundary line. The learned First Appellate Court, in my opinion, therefore, correctly held that the appellant/plaintiff had failed to prove his superior right of pre-emption.
13. In view of the above mentioned, I see no merit in this appeal, which is accordingly dismissed with costs.