' This judgment shall decide Civil Revisions Nos.726-D of 1995 and 727-D of 1995, as common questions are involved. The only difference is that in C.R. No,726-D of 1995, an Ihata measuring 3 Marlas, 7 Sarsais was purchased by the respondent vide .Mutation No,181 attested on 25-11-1990, while in C.R. No,727-D of 1995, he purchased land measuring 19 Kanals, 16 Marlas vide Mutation No,404, attested on 25-11-1990 for Rs,3,00,000.
2. On 20-3-1991, the petitioner filed two suits for possession of the said property by pre-emption. He claimed to he a co-sharer in both the properties and further to be Shafi Jar and Shafi Khaleet.
Performance of Talbs was pleaded. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed both the suits vide judgment and decrees dated 4-1-1994. The respondent filed two first appeals which were heard by the learned District Judge. Vehari, who allowed the same on 22-3-1995 and dismissed the suits of the petitioner.
3. Learned counsel for the petitioner has argued that the learned District Judge has acted without jurisdiction in non-suiting the petitioner on the ground that sale of occupancy rights would not be pre-emptible. According to the learned counsel, occupancy rights are immovable property and the same is pre-emptible. Further contends that in the matter of Talbs, also, the learned District Judge has misread the evidence on record. -Learned counsel for the respondent, on the other hand, relies on the case of Aziz Hussain and others v. Rashid Ahmad and others 1992 SCM R 1018 to urge that it has been consistently held by the superior judiciary of the country including the Honourable Supreme Court of Pakistan that transfer of tenancy rights can neither be treated as sale of agricultural land nor village immovable property.
4. I have gone through the copies of the records: There is no dispute that in both the cases the owner of the suit property is the Provincial Government, while the vendor was recorded as occupancy tenant. The said mutations, copies whereof respectively are Exh.P.4 in both the cases do go to show that the ownership remained vested with the Provincial Government and the occupancy rights were sold.
5. Now, under section 5 of the Punjab Pre-emption Act, 1991, the ownership of an immovable property in exchange for a valuable consideration. It will, thus, be seen that only where transfer of ownership right of pre-emption arises in case of sale of immovable property. Now, the sale as defined in section 2(d) of the Act, means permanent transfer of is effected permanently, in respect of an immovable property in exchange for a valuable consideration, the right of pre-emption arises. Now, applying the law laid down by the Honourable Supreme Court of Pakistan in the case relied upon by the learned counsel for the D respondent, there is no such sale as envisaged under the said provisions of law giving rise to a right of pre-emption.
6. Now so far as the matter of Talb-i-Ishhad is concerned the learned District Judge has observed that first Talb had not been confirmed. I am afraid, the observation is not correct as in the notice Exh.P.1, there is specific reference and confirmation for making of the first Talb. In notices appended with both the cases so far as receipt of the notice is concerned, there too the learned District Judge has taken a rather technical view of the matter, particularly when the proof of posting is there and there is no denial that the address is incorrect. However, the third objection raised by the learned District Judge is valid. The second attesting witness of notice Exh.P.1 in both the cases, namely Mian Khan, has not been produced and no reason is forthcoming on the record for the said omission.
The production of both the witnesses of Talb-i-Ishhad is absolutely necessary, as section 13(3) of the Punjab Pre-emption Act, 1991, insists that a notice in writing is to be attested by two truthful witnesses and in order to judge the said attribute of the witness, it is essential that he be produced in Court and to be put in the witness-box and subjected to cross-examination by the opposite party. I, therefore, do hold that valid Talb-i-Ishhad had not been proved on the record.
7. Both the civil revisions are found to be without any force and are accordingly dismissed, leaving the parties to bear their own costs.