' Brief facts in this civil revision are that the respondent filed a suit for possession of agricultural land through pre-emption on the basis of superior right of pre-emption being Shafe-Shareek, Shafe-Khaleeq and Shafe-Jar against the petitioner/defendant in respect of 6 Kanals and 9 Marlas agricultural land purchased by the petitioner/defendant on 4-4-1995 in consideration of Rs,3,25,000 situated in Mauza Chohoudu Tehsil Kharian District Gujrat. Suit was contested by the petitioner/ defendant and on the basis of pleadings of the parties the learned trial Court formulated 16 issues, which are reproduced below:-
(1) Whether in the present form, suit is not proceedable, therefore, liable to dismissal? OPD
(2) Whether sale bargain was within full knowledge of plaintiff at the time of setting the bargain, whether defendant informed to plaintiff and other co-sharers regarding purchasing of land, but they refused to purchase, if there was any pre-emption right of plaintiff, that is waived and plaintiff is prohibited to file suit on ground of word and conduct? OPD
(3) Whether suit being partial is liable to dismissal? OPD
(4) Whether suit is barred by time, therefore, liable to dismissal? OPD
(5) Whether valuation of suit regarding court-fee and jurisdiction is wrongly determined, therefore, suit is not duly instituted and unstamped properly therefore, liable to dismissal, because previous to filing of suit, on land in dispute, the most expensive houses are constructed? OPD
(6) Whether Talb-e-Muwathibat and Talb-e-Ishhad according to law are not performed, therefore, suit is liable to dismissal? OPD
(7) Whether plaintiff has no locus standi and cause of action, therefore, liable to dismissal? OPD
(8) Whether all expenses on attestation of mutation and miscellaneous expenses were suffered Rs,50,000 by defendant and in case suit is decreed, the defendant is entitled to get from plaintiff?
OPD
(9) Whether plaintiff has filed suit only to distress the defendant, therefore, entitlement of defendant to special costs? OPD
(10) Whether the defendant asked plaintiff before purchasing the land in dispute and the land in dispute was purchased by defendant for Rs,3,25,000 whereas market value is more than this amount? OPD
(11) Whether plaintiff has no 'need' of land in dispute and on purchasing the land by defendant, the plaintiff has no `Zarrar'? OPD
(12) Whether defendant purchased the land in dispute for Rs,2,50,000 vide Sale Mutation No,1434, dated 4-4-1995 and to stop plaintiff from exercising his pre-emption right, the ostensible sale price Rs,3,25,000 was entered in mutation? OPP
(13) Whether plaintiff performed Talbs according to law of preemption? OPP.
(14) Whether plaintiff has superior right of pre-emption than defendant on grounds as mentioned in para. No,4 of plaint? OPP
(15) Whether plaintiff is legally entitled to decree for possession through pre-emption on the base of facts as averred in plaint, and relief as claimed/prayed for? OPP
(16) Relief.
' Evidence was produced by the parties and the learned Civil Judge, Kharian vide judgment and decree, dated 24-2-1998 dismissed the suit of the plaintiff/respondent. He being aggrieved filed an appeal against the judgment and decree passed by the learned trial Court, which was accepted and the judgment and decree passed by the learned trial Court was set aside vide judgment and decree, dated 20-6-1998 passed by the learned Appellate Court and the suit was decreed with costs, hence, the instant civil revision.
2. Arguments advanced by learned counsel for the petitioner are that the impugned judgment and decree is against the facts and law applicable to the present case, while reversing the finding of learned trial Court on the crucial issues of Talbs and the superior right of preemption, the learned Additional District Judge, Kharian committed the material irregularity while deciding Issues Nos.13 and 14 as finding of the learned trial Court on these issues are well-reasoned . The present suit was hit by limitation. The learned Appellate Court also failed to understand that the plaintiff/respondent has failed to prove "Zaroorat" and suffering of "Zarrar" in case the land is not given to him. This proof was a basic requirement for getting the decision in exercise of preemption right. The learned Appellate Court also failed to understand that suit was not properly valued for the purposes of court-fee and jurisdiction and it failed to read the evidence and appreciate the same on record in its true perspective and in this way set aside the well-reasoned judgment and decree passed by the learned trial Court. As far as the evidence of Talbs is concerned the land was purchased through a Mutation No,1434 sanctioned on 4-4-1995. According to the averments in the plaint, pleadings and also in evidence of the P.Ws. Talb-eMuwathibat was made through the information given on 18-7-1995 in the presence of Qalab-e-Abbas and Nadir Hussain and notice was served on 3-8-1995, therefore; both the Talbs the jumping demand as well as Talbe-Ishhad were beyond limitation. Learned counsel for the petitioner relied on Muhammad Ramzan v. Lal Khan 1995 SCM R 1510 a Full Bench judgment where it is held section 13(1) right of pre-emption would not be available when pre-emptor had failed to make Talb-e-Muwathibat within two weekings of attestation of mutation of sale as the pre-emptor under sections 13(1), 31 of the Punjab Pre-emption Act, 1991 pre- emptor would be deemed to have acquired knowledge of attestation of sale within two weeks from issuance of notice under section 31. Talbe-Muwathibat made by him after two weeks of such knowledge would not constitute Talb-e-Muwathibat within the meaning of section 13(1) and would disentitle pre-emptor to pre-emption right. Rationale behind this requirement of section 13(1) is put restriction on exercise of pre-emption right which is based on tradition of Holy Prophet (p.b.u.h.). He further argued that learned Appellate Court has failed to consider the fact while deciding the superior right of pre-emption that respondent/ plaintiff was not owner in all Khewats. There is material contradiction in the statements of P.W.3 and P.W.4 and also the respondent/plaintiff. The reason given by the learned Appellate Court that there was no notice under section 13(1) of the Punjab Pre-emption Act, 1991, is also groundless, as according to section 42 of the Land Revenue Act mutation of the agricultural land is sanctioned in open assembly and this fact cannot remain unattended as the respondent/plaintiff is asserting superior right of pre-emption on the basis of contiguity. In the notice Exh.P.1. There is full detail of the land, which was sold to the petitioner but the P.Ws. Have made contradictory statements in respect of the detail of land mentioned in the notice:
3. Learned counsel for the respondent argued that the learned Appellate Court while giving well- reasoned judgment has reversed the findings of the learned trial Court. Since the disputed property was transferred through mutation of agricultural land the attesting authorities were bound to give a public notice under section 13(1) of the Punjab Preemption Act, 1991. It was the duty of the Revenue Attesting Authority to get that notice issued and paste it at conspicuous place. Since time against the respondent will run from the date of knowledge of the sale and Talb-e-Muwathibat and Talb-e-Ishhad will be considered within the time if the respondent has successfully proved that he came to the knowledge of the same and he without wasting any time made jumping demand and Talb-e-Ishhad. Moreover, on Talb-e-Muwathibat the findings of the learned trial Court are in favour of the respondent and the petitioner has failed to challenge the same even before the learned Appellate Court, therefore, this judgment cannot be interfered in the instant civil revision.
4. I have heard the learned counsel for the parties and have perused the record.
5. While deciding Issue No,13 the learned trial Court observed that the plaintiff has produced his evidence to prove that he has completed the requirements of Talbs according to law enforced. The learned trial Court while discussing the evidence of P.W.3 Qalb-e-Hussain P.W.4 Nadar Hussain and Muhammad Sharif P.W.5, observed that the plaintiff completed the requirement of Talb-e- Muwathibat on 18-7-1995 but according to the contents of the plaint the disputed sale was completed on 4-4-1995 and the first Talb was completed on 18-7-1995 while the plaintiff was under obligation to complete first Talb within 15 days of the completion of sale. According to the law laid down in 1995 SCM R 1510, the pre-emptor was to be deemed to acquire knowledge of attesting of mutation of sale within two weeks from issuance of notice under section 31 of the Punjab pre- emption Act and Talb-e-Muwathibat made by any pre-emptor after two weeks of such' knowledge constitutes Talb-eMuwathibat within the Meaning of section 13 of the Punjab Pre-emption and would disentitle the pre-emptor to exercise his pre-emption right. As the pre-emptor would be presumed to have the knowledge of attestation of sale mutation within two weeks from issuance of notice under section 31 'of the Punjab Pre-emption Act and his failure to make Talb-eMuwathibat within two weeks of the attestation of mutation would disentitle him to exercise his pre-emption right. While deciding Issue No,14 the learned trial Court held that the Mutation .No,1434 reveals that the land in dispute has been alienated out of Khewat Nos.98/201, 99/202, 100/203 and 102/205. The plaintiff has placed on record a copy of Record of Right as Exhs.P.5, P.6 and P.7. Exh.P.5 does not support the plaintiff to show him co-sharer in the Khewat of disputed land. Exh.P.6 reveals that the plaintiff is owner in Khewat Nos.96 and 97 and he is co-sharer in Khewat No,102, therefore, he is not a co-sharer in the entire Khewats. As per Akas Shajra Exhs.P.8 and P.9 the plaintiff's land is adjacent to land in dispute. The disputed land bears Khasra Nos.663/227, 235/234, 219, 236, 226 and Exh.P.6 reveals that the plaintiff is owner in Khasra Nos.663, 430, 665/234, 664/227, 231 and 226 and also owner in Khasra Nos.218/1 and 218/2 vide Exh.P.7 and the learned trial Court came to the conclusion that all the pieces of land in dispute are not adjacent to the land of the plaintiff. Some of the Khasra numbers are adjacent to the land of the plaintiff but the rest are not. Therefore, the plaintiff has not succeeded to prove his superior right.
6. While the judgment of the learned Appellate Court in respect of Issue No,13 about Talb-e- Muwathibat is that the plaintiff in paragraph 2 of the plaint alleged that without any notice or information to the plaintiff mutation under pre-emption was got sanctioned. As there is no evidence existing on the file to show that any charges under section 31(3) of the Punjab Pre- emption Act of 1991 were deposited by the vendee in the Government treasury for the issuance of said notice. There is no evidence on the file that any such notice was displayed on the main entrance of the mosque or on any other public place of the village or places where the property is situated. Therefore, it could not be presumed that the factum of the sale had definitely came to the knowledge of the plaintiff on the date of attestation of mutation dated 4-4-1995. In the absence of any such evidence the allegations of the plaintiff are got to be believed that the information of sale came to his knowledge on 18-7-1995 through Kalb-e-Hussain Shah. The learned Appellate Court also observed that under the mandatory provision of section 31 of the Punjab Pre-emption Act the officer registering the sale-deed or attesting the mutation of sale shall within two weeks of the registration or attestation as the case may be gives public notice in respect of such registration or attestation. While deciding Issue No,13 the learned Appellate Court observed that according to the plaint the land in dispute falls in Khasra Nos.219, 226, 663/227, 234, 235 and 236. Exh.P.8 shows that Khasra Nos.232, 321 and 230 are adjacent to Khasra Nos.234, 235, 236 and Khasra No,232 is adjacent to Khasra No,227 and the copy of Jamabandi Exh.P.6 shows that Khasra Nos.230, 231 and 232 belonging to Muhammad Sharif, the pre-emptor and his right of preemption is superior on the point of contiguity. Aks Shajra Exh.P.O. Shows that Khasra No,219/2 is adjacent to Khasra Nos.218/1 and 218/2. In this connection the learned counsel for the pre-emptor has relied upon Exh.P.7, copy of Jamabandi to show that the pre-emptor inherited the land in the said Khasra number from his father vide Mutation No,1430 and this land is adjacent to the disputed one, therefore, he enjoys his superior right of pre-emption regarding Khasra No,226 and copy of record Exh.P.6 shows that he is a co-sharer of the said Khasra number. Therefore, he set aside the judgment and decree passed by the learned trial Court.
7. The evidence in respect of Talbs is P.W.1 about the receipt of notice, P.W.2 about Exh.P.W.2/1 and P.W.2 Kalab-e-Hussain, who stated in his examination-in-chief that on 18-7-1995 he imparted the information of the sale of the disputed land to the plaintiff and he made a jumping demand in the presence of Nadar Hussain and then all the three P.Ws. Came to the lawyer at Kharian and got a notice registered. The copy of the notice is Exh.P.2 and his signatures are Exh.P.2/1 and the plaintiff is a Shareek Khata in the disputed land. In cross-examination he stated that he is a Wagon Driver and the owner of the Wagon of somebody else. He came to the house of the pre-emptor searching Nadar Hussain and there he gave the information of the sale of the disputed land. He stated that he heard the same in his uncle's Haveli from the people who were discussing the sale of the disputed land. He also adrnitted in cross-examination that he did not know whether the property is transferred through Registry or through mutation. He also stated that when they came to the lawyer they had no Fard Jamabandi nor a copy of the mutation and in his presence Muhammad Sharif did not tell the lawyer Khasra numbers and when the notice was read over to him and Khasra numbers were not incorporated in the notice. He also stated that he had no knowledge whether the mutation number was incorporated in the notice. He also stated that he did not know about the Khasra or Khatoni numbers. He has no idea whether a house is situated in the disputed land.
' P.W.4 is Nadar Hussain. He supported P.W.3 in respect of Talbs. In cross-examination he stated that notice Exh.P.2 carries his signatures Exh.P.2/2. Sharif is his paternal-cousin and he does not know that on 1-7-1995 what day it was. He also stated that Kalb-e-Abbas did not tell when the land was sold and he heard this from some one. Then they came to District Court. However, they did not visit Walayat to enquire whether the property is sold or not When they came to Kharian the lawyer gave his clerk to them and they all went and took the copy of the mutation from the Patwari and when the notice was read over to him all the numbers of Khasras and Khatas were incorporated therein.
The mutation number was also incorporated in the notice. The house was also mentioned in the mutation.
' P.W.5 is Muhammad Sharif. He stated in his examination-in-chief that he made a jumping demand in the presence of P.Ws. Nos.3 and 4 and then went to the Court and got a notice Exh.P.2 and it carries his signatures Exh.P.2/3. He is a co-sharer and his land is contiguous to the disputed property and he only came to know about the sale of the disputed property through Kalb-e- Hussain. In cross-examination he stated that he did not know why Kalb-e-Hussain came to his house and he had no knowledge whether he came to meet him or Nadar. He was told by Nadar about the disputed land and he did not ask Kalb-e-Hussain when the property was sold and from which source Kalb-eHussain came to know about the sale of the disputed property and how many days before. He also admitted in cross-examination that when they reached the lawyer they had no Fard of property or mutation on that day. Again stated that before going to the lawyer he took the copy of the mutation.
8. This is a settled proposition of law in pre-emption cases that the pre-emption right cannot be exercised unless and until the pre-emptor has performed the ceremony of Talb-e-Muwathibat immediately on hearing the sale. The learned Appellate Court set aside the findings of the learned trial Court on the assertion that no notice of attestation of mutation was given to the public at large and therefore, the time will run against the pre-emptor for making the Talbs from the date of knowledge. The settled principle of Revenue Law is that before a mutation can be entered there should be an acquisition of right and not merely a claim as there is no place in the Record of Rights for claim. An entry in the register of mutation does not confer any title as the mutation in favour of a person is not a conclusive evidence of transfer of land to him. Where the mutation in question had found in its way in the Revenue Record the burden of proof that the persons affected by it were unaware either of the attestation of mutation or of subsequent entries in the Revenue Record would heavily lay on the party asserting such facts and the right of pre-emption being one based on Muslim Law the performance of certain ceremonies prescribed by that law immediately after hearing about the sale are absolutely necessary to create right. The delay in performing the ceremony is fatal to that right. When Talb-e-Muwathibat is not made instantly on coming to know of the sale; the right of the pre-emption is lost a short delay would not be excused. In Muhammad Ramzan v. Lal Khan 1995 SCM R 1510 the apex Court held that the pre-emption suit was instituted on 16-5-1999 whereas the mutation of sale was sanctioned in favour of the vendee on 13-4-1991 and thus, the plaintiff was deemed to have acquired knowledge of attestation of the mutation of sale within two weeks thereof.
9. The evidence of P.W.3, P.W.4 and P.W.5 shows that not a single word is uttered by these P.Ws. That no notice of attestation of mutation was given by the Revenue Officer while sanctioning the mutation and no copy of mutation was pasted at the conspicuous place or mosque. Therefore, they had come to know about the sale through P.W.3.. The evidence of the most material witness about Talb is full of material contradictions and is not trustworthy as it contradicts the notice which carries the exact description of the property Khata, Khatooni and Khasra, the house and the mutation numbers. Such an evidence being not trustworthy is not to be relied by the Court. It was never a case of the petitioner that no notice of attestation of mutation was given to the public-at- large. Therefore, he remained ignorant about the sale. On the other hand he .Has placed on record evidence that his land is contiguous to the disputed property. He is a co-sharer in some of the Khatas in the disputed land. How is it possible that he remained ignorant about the attestation of the mutation as the heavy duty lies on him to prove that he made Talbs within the required time as envisaged in section 13 of the Punjab Pre-emption Act, and since no notice was given as required by section 31 of the Punjab Pre-emption Act by the attesting Revenue Authority to public-at-large, the sale came to his knowledge through an informant and the evidence of the witness imparting the knowledge of sale to the pre-emption must be reliable, true, trustworthy and beyond material contradiction as to the factum of knowledge of sale, therefore, the instant civil revision is accepted, the judgment and decree, dated 20-6-1998 passed by the learned Appellate Court is set aside.
10. No order as to costs.