This judgment shall decide C.R. No, 64-D/99 and C.R.No, 46/99. As they proceed against a common judgment of a learned ADJ, Talagang.
2. Vide Mutation No, 671 attested on 15.9.1992 Mehr Muhammad (hereinafter to be referred to as the vendee) purchased the suit land for a consideration of Rs, 1,40,000/-. On 9.12.1992 Bakht Bhari, etc. Petitioners in C.R. No, 84/99 filed a suit for possession by pre-emption. They claimed to be co- sharers in the suit land. According to them, the land had, in fact, been sold for Rs, 50,000/-.
Performance of talbs was pleaded. Hafiz Noor Khan Respondent No, 3 filed a suit on 23.12.1992.
According to him, the land was sols for Rs, 75,000/-. He also claimed to be a co-sharer.
Performance of talabs was pleaded. I may note here that yet another suit was filed by Mst. Fateh Khan Respondent No, 2 but the same was dismissed at the trial stage and the lady did not agitate the matter any further. The vendee contested all the suits filed against him. Issues were framed.
Evidence of the parties was recorded. Vide judgment and decree dated 14.2.1995 the learned trial Court decreed the suit filed by Bakht Bhari, etc: and Hafiz Noor Khan in equal shares subject to deposit of Rs, 1,54,147/-. First appeals were filed by the vendee and. Hafiz Noor Khan. Appeal of the vendee was dismissed but the appeal of Hafiz Noor Khan was allowed by a learned ADJ, Talagang, who dismissed the suit of Bakht Bhari, etc. petitioner and decreed the entire land in favour of Hafiz Noor Khan, vide judgment and decree dated 2.12.1998.
3. C.R. No, 64/99 has been filed by Bakht Bhari and her sister for restoring the decree of the trial Court while the vendee has filed C.R. No, 46/99 praying that the suit of Hafiz Noor Khan be also dismissed.
4. Ms. Zahida Ameen learned counsel for the petitioners contends that the learned ADJ has proceeded to discard the sufficient pleadings and evidence of the petitioners for reasons which are absolutely unfounded in law or in fact. Mr. Razzaq A. Mirza learned counsel for the vendee while supporting the dismissal of suit of petitioners contends that the suit of Hafiz Noor Khan is also liable to be dismissed and he relies on a judgment of the Hon'ble Supreme Court of Pakistan in the case of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315)., According to the learned counsel the non-mentioning of date and time of talb-i-muwathibat in the plaint is fatal to the suit of Hafiz Noor Khan. Kh. Aftab Ahmad, Advocate, for Hafiz Noor Khan Respondent No, 3 relies on the case of Altaf Hussain v. Abdul Hameed Abdul Majeed through Legal Heirs and another (2000 SCM R 314) to urge that a larger Bench of the Hon'ble Supreme Court has done away with the said requirement of pleadings with reference to talb-muwthibat. He, however, joins Mr. Razzaq. A. Mirza, Advocate, for urging that the petitioners have failed to prove talb-i-muwathibat as they did not appear in the witness box.
5. I have gone through the copies of the records of both these cases, with the assistance of the learned counsel for the parties. Now according to both the plaints, the fact that talb-i-muwathibat and talb-i-ishhad had been performed had been duly pleaded. Now Noor Khan son of Hashim Khan, the son of Mehr Bibi, who is sister of the second petitioner, appeared as PW-2. He produced the power of attorney of the two ladies Ex. P.
1. He stated that Sultan informed the two ladies and they immediately declared that they are co-sharers and they will file a suit and that they need the land. Thereafter the notice was issued on 29.5.1992 and that he is the attesting witness. Now it was not suggested to this witness on behalf of the vendee or any of the rival pre-emptors that he was not present when the petitioners-ladies were informed and they made the talb. Now Sultan is the said informer who appeared as PW-3. He stated that he told the ladies in the presence of the said Noor Khan PW-2 about sale and they made the talb. Qazi Khan PW-4 is the second witness of the talb-i-ishhad.
6. Hafiz Noor Khan himself appeared as DW-4 and the stated that he came to know about the sale on 27.9.1992 and made a declaration of Shufa and then he issued notice on 28.9.1992 Ex. D.1. Abdul Rahman and Khaki Jan DWs-2 and 3 are the witnesses of notice Ex. D.1 Now the objection is that these witnesses have not given the requisite details in their examination-in-Chief and as such performance of talbs have not been proved. This appears to be correct to some extent but the cross-examiner has done the job for Hafiz Noor Khan and all the requisite details are available in the said statements of these witnesses.
7. Now coming to the impugned judgment of the learned ADJ, he says that since PW,2 Noor Khan was not an attorney holder at the time the first two talbs were made, his statement is inadmissible.
To my mind the observation is perverse and is not warranted by any law. His relationship with the two ladies has not been questioned. His statement that in this presence his mother and Aunt were informed of the sale and they made the talb has not been questioned. Now he has been authorized by the said ladies to appear and to act on their behalf and in exercise of the said authority he appeared in the witness box and made the statement. Learned counsel for Hafiz Noor Khan says that this is hearsay. I am afraid that not only has this witness seen but has heard whatever happened and whatever was stated at the occasion. To my mind the learned ADJ has acted without lawful authority while discarding the said evidence which otherwise fully proved the .making of valid talb-i-muwathibat and talb-i-ishhad by the petitioners-ladies.
8. Now this brings me to the question of non-statement of the relevant facts by the two pre- emptors in the respective pleadings. I have examined the judgment in the case of Haji Muhammad Salem and I do find that this judgment was announced on 9.1,0.2002 and it has been laid down that mentioning of date and time in the plaint is a sine qua non for proving talb-i-muwathibat and consequently talb-i-ishhad. In my humble opinion the judgment delivered by a Bench comprising five Hon'ble Judges in the case of Altaf Hussain (2000 SCM R 314) as also in the case of Haji Noor Muhammad v. Abdul Ghani (Civil Appeal No, 1004 of 1999) as reproduced in the said judgment laid down the law which is otherwise. I am, of course, bound to follow the judgements delivered by the larger Benches of the Apex Court. I, therefore, find that pleadings are sufficient in the light of the said judgments of the larger Benches of the Hon'ble Supreme Court.
9. For all that has been discussed above, C.R. No, 46/99 is dismissed without any orders as to costs. C.R.No, 64/99 is allowed. The judgment arid / decree dated 2.12.1998 of the learned ADJ, Talagang, is set aside while the one passed by the learned trial Court on 14.2.1995 decreeing the suits of Mst. Bakht Bhari and her sister Mst. Mehr Bibi and Hafiz Noor Khan is restored. However, the division of property will be in accordance with Section 9 of the Punjab Pre-emption Act, 1991, amongst all the three pre-emptors each getting 1/3rd share subject to deposit of proportionate price and further compliance of the directions contained in the trial Court decree. No orders as to costs.