The facts giving rise to the present revision petition are to the effect that Sarjah Khan son of Bhai Khan plaintiff/petitioner had filed a suit for possession through per-emption against Mst. Baigee daughter of Rehman and Muhammad Aslam defendants/respondents with regard to agricultural land measuring 25 kanals situated in Khata No, 64 of Mauza Jhadah Tehsil Bhalwal District Sargodha through sale deed dated 26.7.1996 alleging in the plaint that to defeat his superior right of per-emption a fictitious sale price has been entered as Rs, 4,50,000/- while the actual sale price paid in good faith was Rs, 2,10,000/-. The plaintiff claimed superior right of pre-emption being co- sharer in the khata in dispute.
2. The suit had been contested by the defendants/respondents who filed their written statement denying the averments made in the plaint by raising some preliminary objections. From the factual controversies appearing on pleadings of the parties, the trial Court led to frame the following issues:-- (1)Whether the plaintiff has superior right of pre-emption? OPP '
(2)Whether plaintiff has fulfilled the requirements of talabs? OPP (3)Whether ostensible sale price Rs, 4,50,000/- was fixed in good faith and actually paid? OPD (4)If issue No, 3 is not proved then what was the market value of the suit land at the time of its sale? OP parties.
(5)Whether the defendants are entitled to recover Rs, 52,500/- (expenses of registration and district council fee), besides the consideration amount, if the case is decreed? OPD (6)Whether plaintiff is estopped by his words and conduct to bring this suit? OPD (7)Whether suit has been incorrectly valued for the purpose of Court fee, If so what is its correct valuation? OPD (8)Whether the suit is not within time? OPD (9)Whether the suit is false, frivolous, mala fide, without cause of action, if so, its effect? OPD
(10) Relief.
3. After recording and appreciating the evidence of the parties, pro and contra, the trial Court vide its judgment and decree dated 24.3.1999 dismissed the suit with costs.
4. Feeling aggrieved the plaintiff/petitioner preferred an appeal which came up for hearing before the learned Additional District Judge Bhalwal District Sargodha. During the pendency of the appeal, Muhammad Aslam Respondent No, 2 made a consenting statement on 19.6.2001 stating that he has entered into compromise with the appellant/petitioner and admitted his superior right of per- emption received share of sale consideration Rs, 1,50,000/- and in the light of his statement the appellate Court accepted the appeal and decreed the suit to his extent and dismissed the appeal to the extent of Respondent No, 1 Mst. Baigee observing that the appellant/petitioner has failed to perform the requirements of Talb-iMuwathibat and Talb-i-Ishhad.
5. Learned counsel for the respondents at the very outset objected that the suit of the plaintiff/petitioner has not been filed within time, and liable to be dismissed on this sole ground and the learned trial Court has also declared the suit barred by limitation. He forcefully supported the judgments of the Court below.
6. On the other hand learned counsel for the petitioner contended that the suit was filed on 2.1.1997 on the first day of opening of the Court after Winter vacation which is within time. Reliance has been placed on Noor uddin and 3 others vs. Pakistan through the Secretary, Ministry of Communication Government of Pakistan, Islamabad and 3 others (2000 SCM R 354). The learned counsel for the petitiorter further contended that both the Courts below have non suited the petitioner on the. ground that petitioner has failed to establish the performance of Talb- i-Muwathibat and Talb-iIshhad, while there is ample evidence on the record to establish this factum. The Courts below have given findings on this issue without applying the judicial mind to the evidence produced by the petitioner.
7. I have heard the arguments of learned counsel for the parties, perused the record.
8. Section 4 of the Limitation Act envisages, that where the period. of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, the appeal or application may be instituted, preferred or made on the day that the Court re-opens.
9. Section 30 of the Punjab Pre-emption Act 1991 provided limitation for filing suit for pre-emption four months from the date (a) of the registration of the sale-deed, (b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale-deed, (c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or mutation, or (d) of knowledge by the pre-emption, if the sale is not covered under paragraph(a) or paragraph (b) or paragraph (c).
10.The provision of paragraph (d) is not attracted to the present case. The sale in dispute had been made through 'a sale-deed attested on 26.12.1996 and from the said date four months expire on 26.12.1996. There is not cavil with the fact that till 1.1.1997 the Court was closed and had re- opened on 2.1.1997 when the suit had been instituted. This argument has been further strengthened by the law laid down in Nooruddin case (supra). The suit was validly instituted by the petitioner within time.
11.In paragraph 3 of the plaint, the plaintiff has categorically stated that for the first time he got knowledge of sale of the property in dispute on. 3.9.1996 at 8/9 a.m. at his dera when Muhammad Hayat son of Ghulam Muhammad in presence of Ashiq Hussain Shah deposed that the property in dispute has been sold out to the vendees and he there and then declared to pre-empt the suit property. The plaintiff in his statement as PW1 also deposed that he was told about the sale in dispute by Muhammad Hayat in presence of Ashiq Hussain. The statement of the PW was supported by PW2 Muhammad Hussain who disclosed the sale and PW3 Ashiq Hussain in whose presence disclosure with regard to the sale of the property in dispute was made. Both the PWs categorically stated that the plaintiff has declared the intention to pre empt the suit land. The notices for Talb-i-Ishhad as Exh. P4 and P5 had been placed on record testified by two truthful witnesses Muhammad Hayat, Ashiq Hussain (PW2 and PW 3)., The learned counsel for defendants/respondents cross-examined the PWs at length but no substantial contradiction was made out. But the Courts below have non-suited the plaintiff/petitioner on the observation that there are minor contradictions in the statements of the plaintiff. Somewhere he has stated the date of first information as 19 Bhadoon {{URDU TEXT}} while in cross examination he stated, the month of Aswa j {{URDU TEXT}} but there is no cavil to the effect that the plaintiff as well as the witnesses stated the date of knowledge and making of Talb-i-Muwathibat on 3.9.1996. This date has not been controverted by the defendants/vendees. The plaintiff/petitioner has specifically referred in the plaint two talabs having been made in presence of two witnesses. Copy of notice of Talb-i-Ishhad as envisaged under Section 13(3) of the Punjab Pre-emption Act, 1991 has been produced in the evidence on which no cross-examination had been made nor any objection had been made by the defendants. The witnesses have identified their signatures on the notices. The petitioner has produced sufficient and convincing evidence to establish Talb-i-Muwathibat and Talb-i-Ishhad.
The learned lower appellant as observed in paragraph 9 of the judgment that the appellant as PW1 has not given specific time when he got knowledge of the disputed sale for the first time and had ambiguously stated that he got knowledge of the disputed sale at 8/9 a.m. The plaintiff/petitioner in plaint and in his statement as PW1 has specifically stated the date and time of making Talb-i- Muwathibar as 3.9.1996 at about 8/9 a.m. There is no ambiguity in the plaint and statement of the plaintiff about making `Talb-iMuwathibat' which is also corroborated by the statements of PW2 and PW3. The judgments of the Courts below are based on surmises and conjectures and it would not be appropriate rather in the interest of justice to non suit the plaintiff on some slight discrepancy if any in his statement.
12.The evidence produced by the petitioner has not been rebutted by the defendants/vendees (respondents herein). Where copy of the notice of `Talb-i-Ishhad' had been produced in evidence on which no cross examination had been made nor any objection had been raised by the defendant at the time of production of the notice, it would be inferred that the plaintiff/pre-emptor had proved Talb-i-Ishhad which follows Talb-iMuwathibat. The superior right of plaintiff/petitioner has also not been rebutted by cogent evidence by the respondents and in such like cases the High Court can set at naught the concurrent findings of the Courts below. In this context reference can be made to the case of Nadir Khan vs. Itebar Khan (2001 SCM R 539).
13.For the foregoing reasons, this revision petition is accepted and the judgement and decrees dated 24.3.1999 and 12.2.2002 passed by both the. Courts below are set aside. The suit for pre- emption filed by the 'plaintiff/petitioner is decreed with costs throughout.