' This is a revision petition by the pre-emptor, whose suit has been dismissed in appeal although it was decreed by the learned trial Court. The relevant facts are briefly noted hereunder.
2. Vide registered sale-deed dated 24-3-1992 Muhammad Amin, sold the land in dispute measuring 12 Kanals and 2 Marlas in favour of Jameel Ahmad, respondent. Muhammad Aslam, the petitioner herein, claiming superior right of pre-emption on the ground, inter alia, of being a co- sharer pre-empted the said sale. It was averred that the plaintiff-petitioner came to know of the sale on 14-5-1992, he made immediate demand which was followed by the notice of Talb-i-Ishhad.
3. The suit was contested on a number of grounds including the pleas of estoppel and waiver. It was averred that the plaintiff pre-emptor knew about the transaction even before the sale and that he had not fulfilled the requirements of "the Talbs" in accordance with law.
4. Necessary issues were framed and the suit was tried. The parties led evidence in support of their respective pleas. Vide judgment dated 22-11-1994 the suit filed by the petitioner was decreed by the learned trial Court with the finding that he had superior right of pre-emption and that the "Talbs" had duly been made. Issue No.4 covered the controversy whether the suit had not been filed on the basis of necessity. {{URDU TEXT}}According to the finding of the learned trial Court, onus to prove the issue was on the defendant but no evidence was produced by him.
5. The respondent filed an appeal before the learned District Court which was allowed vide judgment and decree dated 17-2-1998. The view taken by the learned first Appellate Court was that the petitioner/plaintiff had not pleaded {{URDU TEXT}}which was necessary under section 6(2) of the Punjab Pre-emption Act, 1991. In this approach the judgment of this Court in Mst. Bashiran Bibi v.
Muhammad Kashif Khan and others PLD 1995 Lahore 200 was relied upon. Section 31(1) Punjab Pre- emption Act was also relied upon, according to which, it was incumbent on the officer registering the sale-deed or attesting the mutation to give public notice within two weeks. Reliance was also placed on Muhammad Ramzan v. Lal Khan 1995 SCMR 1510. It was observed that the plaintiff had never stated that he had no notice from the Registering Authority. Thus, it was presumed that the plaintiff-petitioner had knowledge of the registration of the sale-deed and, therefore, he failed to "fulfil the demands" as required by section 13 of the Punjab Pre-emption Act, 1991.
6. The learned counsel for the petitioner contends that section 6(2) of the Punjab Pre-emption Act was declared as repugnant to the Injunctions of Islam by the learned Federal Shariat Court vide judgment dated 30-5-1991 which was affirmed by the Honourable Supreme Court in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of.Punjab Province, Lahore PLD 1994 SC 1. Therefore, it was not necessary to plead {{URDU TEXT}} to avoid {{URDU TEXT}} in the plaint. Reliance was placed on Abdul Malik v. Muhammad Iqbal 1994 CLC 788. As far as the case of Muhammad Raman, supra is concerned, his contention was that it was nobody's case that charges for the notice contemplated by subsection (3) of section 31 of the Punjab Preemption Act, 1991 had been recovered by the Sub-Registrar at the time of registration of the sale-deed nor that the Sub-Registrar had displayed the notice of the sale as required by subsection (2) of section 31 of the Punjab Pre-emption Act, 1991. He next contended that testimony of P.W.2 and P.W.3, besides the statement of the plaintiff clearly established that Talb-i-Muwathibat had duly been made. A notice through registered post evincing the " Talb-iIshhad" was addressed to the vendee which was received by his real brother as deposed by P.W.1 as vendee and his brother were living together.
7. On the other hand the learned counsel for the respondent submitted that the matter stands concluded by concurrent findings of the learned two Courts. He contended that in accordance with the judgment of the learned Shariat Appellate Bench in the case of Haji Rana Muhammad Shabbir Ahmad Khan, supra, the date from which the judgment of the learned Shariat Appellate Bench, inter alia, in respect of section 6(2) was effective was 31st Decehther, 1993 while the present suit was filed on 2-7-1992 and, therefore, the rule laid down in the case of Abdul Malik, supra, was not attracted. He relied on the case of Muhammad Ramzan, supra. He next contended that the petitioner had not pleaded the time, place and source of his knowledge of the sale and the witnesses in whose presence "Talb-i-Muwathibat" was made. The two witnesses referred to in the plaint were the witnesses of the notice of Talb-i-Ishhad. He, therefore, submits that irrespective of the defect of non-compliance of the provisions of section 6(2), the Talb-iMuwathibat was not proved to have been made. He particularly relied on the fact that the vendor was the cousin of the preemptor, who had informed the petitioner of the sale.
8. The submissions made by the learned counsel for the parties have been considered. Although, section 6(2) of the Punjab Pre-emption Act was held to be repugnant to the Injunctions of Islam by the learned Federal Shariat Court in the judgment dated 30-5-1991, it was appealed against.
Therefore; by virtue of Article 203-D of the Constitution of Islamic Republic of Pakistan, its operation stood suspended and in accordance with the rule laid down by the learned Shariat Appellate Bench in the case of Haji. Rana Muhammad Shabbir Ahmad Khan, section 6(2) remained on the statute book till 31-12-1993. In the present case the suit was filed on 2-7-1992 and, therefore, the requirement to comply with the provision of section 6(2) could not be dispensed with. The rule laid down by this Court in the case of Mst. Bashiran Bibi was, therefore, attracted. It may also be noted that in the case of Mst. Bashiran Bibi, supra, this Court also noted that the judgment of the learned Shariat Appellate Bench was effective from 31-12-1993 and it was prospective. In the said case also preemption suit was filed before the judgment of the learned Shariat Appellate Bench became effective. In the case of Abdul Malik, supra, amendment allowed by the learned trial Court to add averment of {{URDU TEXT}} was assailed before this Court and on the basis of judgment of the learned Shariat Appellate Bench, it was held that it was no more necessary.
9. As far as the case of Muhammad Ramzan, supra, is concerned, the Honourable Supreme Court found that Talb-i-Muwathibat had not been made by the plaintiff pre-emptor. However, even if, the suit of the petitioner could not be dismissed on the basis of the provisions of section 31(2), the record shows that there was no satisfactory evidence to establish "Talb-i-Muwathibat".
10. Since the petitioner had not pleaded time, place, source of knowledge of sale and the persons in whose presence " Talb-iMuwathibat" was made the evidence produced by the petitioner was required to be carefully examined. In support of the assertion that he came to know of the sale on 14-5-1992. Muhammad Akram, real brother of the petitioner was examined as P.W.2 and Muhammad Yaqoob was examined as P.W.3. They stated that on 14-5-1992 when the plaintiff was irrigating his fields, the respondent vendee came from the Bus stand and informed the petitioner of the sale on which he demanded return of land from the respondent otherwise, he will file a pre- emption suit. The names of these two witnesses were not mentioned in the plaint as the witnesses of " Talb-iMuwathibat", although they were referred to as the witnesses of Talb-i-Ishhad. This omission is significant. The time of information of the sale stated by these two witnesses was 12/1 Noon. Apart from the fact that P.W.2 was the real brother of the plaintiff, P.W.3 was in the Government employment and claimed that on 14-5-1992, he was on leave, P.W.2 also admitted that he does not remember the dates and the plaintiff had reminded him of the date of knowledge of sale. The petitioner stated in cross-examination that he was informed by the vendor himself.
Although, he did not indicate the point of time when the vendor had informed him. He, however, admitted that during the previous year his turn for water was in the night while both the P. Ws.
Stated that it was 12-1 Noon, when the information of sale was passed on to the petitioner.
Therefore, the evidence of P.W.2 and P.W.3, regarding making of Talb-i-Muwathibat by the petitioner stands falsified and they could not, thus, be believed. It is also in the evidence of the petitioner (as P.W.4), that the plaintiff resides in a different village while the vendee lived in a different village. Jameel Ahmad, the vendee was examined as D.W.S. He categorically stated that he had never informed the plaintiff of the sale on 14-5-1992. In view of the evidence produced in the case it was not proved that Talb-i-Muwathibat was at all made by the petitioner as alleged.
11. Accordingly, there is no merit in this revision petition which is dismissed. #EndJudgment