Muhammad Nawaz Abbasi, J.--This direct appeal has been filed against the judgment dated 3.3.2005 passed by a learned Judge in chamber in the Lahore High Court, Lahore, in revisional jurisdiction, in a preemption matter.
2. The essential facts for disposal of this appeal in the background are that land measuring 46 kanals 17 marlas situated in muaza Wazirke Chatta Tehsil Wazirabad District Gujranwala, was purchased by the appellants vide Mutation No, 239 dated 28.12.1998 against which Muhammad Amin, respondent herein, having claimed superior right of preemption firstly on the ground of co- owner in the land and secondly, owner of the adjacent land with common source of irrigation, instituted a suit for preemption in the Civil Court at Gujranwala on 28.4.1999. The plaintiff/ respondent asserted in the plaint that he on coming to know about the transaction of sale through Abdul Aziz and Muhammad Suleman on 14.4.1999, at his dera ,there and then announced for the exercise of right of pre-emption in performance of talab-e-muwathabat and on the next day sent a notice of talab-e-ishhad under registered cover to the appellants (vendee). The suit was resisted by the appellants on various grounds but the main contest was regarding non performance of talabs in accordance with the provisions of Section 13 of Punjab Pre-emption Act, 1991. The learned trial Judge, having come to the conclusion that tables were performed in accordance with law, decreed the suit vide judgment dated 3.1.2002 but a learned Additional District Judge, Gujranwala, camp at Warizabad, in appeal filed by the present appellants, vide judgment dated 6.10.2003 reversed the findings of the trial Court on the issue of talabs and dismissed the suit. The judgment of the appellate Court was assailed by the respondent before the Lahore High Court in a civil revision and a learned Judge in chambers in the High Court vide impugned judgment, set aside the judgment and decree. passed by the appellate Court and restored that of the trial Court.
3. The appellants at the first instance, filed a petition for leave to appeal before this Court against the impugned judgment but subsequently realizing the legal position regarding the maintainability of direct appeal, withdrew the civil petition and filed the present appeal, after the expiry of the normal period of limitation provided under the law for filing such an appeal. The learned counsel for the appellants has submitted that due to the bona fide mistake, the appellants initially filed a petition for special leave to appeal but later, after withdrawing the same filed this appeal therefore, the delay caused in filing the appeal was not deliberate and the same may be condoned in the interest of justice. Learned counsel for the respondent, has not been able to show us that the appellants were negligent in not filing the appeal within the time or that the filing of the civil petition was not in good faith or it being not a bona fide mistake, would not be considered a valid ground for condonation of delay. In the light of the explanation given by the learned counsel for the appellants and the circumstances leading to the delay in filing the appeal, it appears that the delay was not intentional and deliberate rather it was result of the bona fide mistake and consequently, we condone the same and proceed to decide this appeal on merits
4. Learned counsel for the appellants has contended that without fulfillment of the requirement of talab-e-Muwathabat in accordance with the provisions of Section 13 of Punjab Pre-emption Act, 1991, the performance of talab-e-ishhad would be meaningless, and unless the first talab is proved to the satisfaction of requirement of law, the performance of second talab has no significance. The learned counsel has argued that in pre-emption suit the plaintiff is under heavy burden to prove the performance of talabs in accordance with the law to exercise the right of pre-emption but in the present case, the respondent has not been able to bring on record any convincing evidence of performance of talb-e-Muwathabat and consequently talb-e-ishhad was also not proved in terms of Section 13 of the Punjab Preemption Act, 1991.
5. The learned counsel for the respondent, on the other hand, has submitted that there is no cavil to the proposition that the performance of talabs is an essential pre-requisite for exercise of right of pre-emption and it is the requirement of law to perform talb-e-Muwathabat immediately on acquiring knowledge of sale whereas talab-e-ishhad is made within 14 days of the date of making talab-e-Muwathabat in the manner as provided in Section 13 of Punjab Pre-emption Act, 1991, but it is not essential for the pre-emptor to prove the performance of talab-e-muwathabat with reference to the specific date and place rather proof of a tentative date of performance of the first talab would be sufficient to fulfil the requirement of second talab with reference to the said date for exercise of right of pre-emption and in support thereof, placed reliance on Noor Muhammad us.
Abdul Ghani (2000 SCM R 329).
6. For the purpose of appreciation of the above contentions raised by the learned counsel for the parties, it is essential to examine the provisions of 13 of the Punjab Pre-emption Act, 1991, which provides as under:-- "13. Demand of pre-emption.--(1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:-
(a) talb-i-Muwathibat;
(b) talb-i-Ishhad; and
(c) talb-i-Khusumat Explanations I. "talb-i-Muwathibat" means immediate demand by a preemptor in the sitting or meeting (majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre- emption.
Note. Any words indicative of intention to exercise the right of pre-emption are sufficient.
II. "Talb-I-Ishhad" means demand by establishing evidence, III. "Talb-I-Khusumat" means demand by filing a suit.
(2) Where the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-e-Mawathibat under sub-section (3), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due to the vendee, confirming his intention to exercise the right of pre-emption: Provided that in _areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-e-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of talb-i--muwathibat under Subsection
(2) and Talb-i-Ishhad under sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
7. The legal position emerged is that right of pre-emption cannot be claimed without filfillment of the requirement of talab-e-muwathabat and talab-e-ishhad and performance of talab-e- muwathabat is pre-requisite for the performance of talab-e-ishhad. The first talab is talab-e- muwathabat which is immediate demand for exercise of right of pre-emption in the sitting or meeting in which the pre-emptor comes to know about the sale and without proving the performance of first talab, the requirement of second talab namely talab-e-ishhad even if fulfilled, is of no consequence. The essential condition to fulfil talab-e-muwathabat is that pre-emptor must declare his intention for exercise of right of pre-emption in presence of witnesses immediately on coming to know about the sale and the performance of the first talab, cannot be proved unless pre-emptor proves through positive evidence the specific date on which he on coming to know about the sale, made declaration for exercise of right of pre-emption. This is settled law that talab-e-muwathabat is the foundation for exercise of right of pre-emption but there is difference of opinion on the question regarding the manner of proving the requirement of this talab. The one view is that proof of tentative date of knowledge of sale is sufficient to fulfil the requirement of talab-e-muwathabat whereas according to other view without proof of specific date of knowledge, the requirement of talab-e-muwathabat is not performed and in consequence thereto, the performance of talab-e-ishhad is also not fulfilled in terms of Section 13 of Punjab Pre- emption Act, 1991. In view thereof, the crucial question for determination would be whether without proof of particular date of knowledge of sale, the performance of talab-e-muwathabat with reference to a tentative date would be sufficient to serve the purpose of law or the date of knowledge of sale and the majlis in which pre-emptor made a declaration for exercise of right of pre-emption must be specifically proved. In Noor Muhammad vs. Abdul Ghani (2000 SCM R 329), this Court held that performance of talab-e-muwathabat may not be essentially proved with reference to the specific date and time or place and the majlis in which the exercise of right of pre- emption was announced but in the subsequent judgments in Muhammad Saleem vs. Khuda Bakhsh (PLD 2003 SC 315), Muhammad Siddique vs. Muhammad Sharif (SCM R 2005 SCM R 1231).
Abdul Qayyum through L.Rs, vs. Muslik-e-Alam and another (2001 SCMR 298) and Civil Appeal No, 560 of 1995 (Zarghoon Shah (deceased) through L.Rs, vs. Muhammad Yagoob Khan) and Civil Petitions Nos, 424 & 528 of 2004 (Fazal Subhan vs. Mst Sahib Jamala) it was consistently held that requirement of making talab-e-muwathabat without the proof of the date and the meeting in which declaration for exercise of right of pre-emption was made, would not be fulfilled. This is settled proposition of law that the pre-emptor without satisfying the performance of talabs in accordance with the requirement of Section 13 of Punjab Preemption Act, 1991, cannot succeed and unless it is established on record the specific date of knowledge of sale and the majlis in which the declaration was made for exercise of right of pre-emption, the requirement of talab-e- A muwathabat is not fulfilled and if the first talab is not proved to have been made in accordance with law, the performance of second talab (talab-eishhad) also cannot be proved. The right of pre-einption is a piratical right and the pre-emptor must prove the essential conditions for exercise of such right strictly in accordance with law.
8. The pre-emptor in the present case pleaded the knowledge of sale on 14.4.1999 in the plaint but in his statement in the Court he stated in general terms that he having acquired the knowledge of sale about eight months prior to the date of making the statement, fulfilled the requirement of talab-e-muwathabat and also sent notice of talab-e-ishhad on the next day of making talab-e- muwathabat. The pre-emptor thus without proving the specific date of making talab-e- muwathabat claimed performance of both the talabs on the basis of the notice of talab-e-Ishhad.
9. The pre-emptor in addition to his own statement, also placed reliance on the statement of two witnesses namely Abdul Aziz (PW2) and Sattar (PW3) who have also in general terms stated that about one year and eight months ago, they on coming to know of the sale, informed the preemptor and he in their presence, there and then, 'made an announcement for the exercise of right of preemption. In rebuttal, Saghir Hussain vendee and his father in their cross-examination denying the claim of pre-emptor of performance of talabs as per requirement of law, stated that at the time of sanction of mutation in the village an announcement was made on loud speaker of the village mosque regarding the transaction of sale and that all concerned, including the pre- emptor had direct knowledge of mutation much before his making of declaration of exercise of right of pre-emption. In the light of the evidence of the parties, the assertion of the vendee that it was not a secret transaction of sale and the pre-emptor having knowledge of the mutation of sale much before making declaration for exercise of right of preemption, has not been able to substantiate his claim of making talab-emuwathabat and talab-e-ishhad in accordance with the requirement of law, is not without substance. The detail examination of the evidence would unambiguously suggest that the pre-emptor having not been able to prove the particular date of knowledge of sale, has not been able to discharge the burden of proving the performance of talab-e-muwathabat and talab-e-ishhad strictly in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, 1991 to succeed in the suit for pre-emption.
10.The learned Judge in the High Court reversed the finding of fact arrived at by the appellate Court on question of performance of talabs through reapply of evidence in the exercise of revisional jurisdiction without pointing out any defect of mis-reading or non reading of evidence or that the conclusion drawn by the appellate Court was contrary to the law. The scope of revisional jurisdiction is confined to the extent of mis-reading or non reading of evidence, jurisdictional error or an illegality of the nature in the judgment which may have material effect on the result of the case or the conclusion drawn therein is perverse or contrary to the law but the interference for the mere fact that the appraisal of evidence may suggest another view of the matter, is not possible in revisional jurisdiction. There is a difference between the mis-reading, non reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must betaken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of mis-reading or non reading of evidence and the conclusion drawn is contrary, to law.
11. In the light of foregoing discussion, we allow this appeal, set aside the judgment of the High Court, and restore that of the judgment and decree passed by the Appellate Court. There will no order as to costs.