Muhammad Nawaz Abbasi, J.--These two petitions filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan involving common question of law and facts, have been directed against the judgment dated 20.1.2004 passed by a learned Judge in chambers of Peshawar High Court in two connected civil revisions arising out of suit for pre-emption.
2. The brief facts in the background are that land measuring 40 kanals situated in revenue estate Nari Tehsil Takhat Bhatti District Mardan, was sold by Khalid Khan vide mutation dated 29.1.1990 to the predecessor-in-interest of Petitioners in CP 424/04 (hereinafter to be referred to as 'the petitioners) for a consideration of rupees seven lacs and sale was pre-empted by Haji Fazalur Rehman, predecessor-in-interest of respondent in the above petition (hereinafter to be called the respondent'). The suit was resisted by the petitioners on various grounds and the main attack was that talab-e-muwatabit and talab-e-ishhad were not fulfilled in accordance with law. The learned trial Judge dismissed the suit vide judgment dated 9.10.2002 but in appeal preferred by Mst. Sahib Jamala, respondent herein, a learned Addl. District Judge, Mardan, camp at Takla Bhai, while reversing the findings of the trial Court on the pivotal issues, decreed the suit vide judgment dated 18.4.2003. The cross revision petitions filed by the parties before the High Court were disposed of vide a consolidated judgment whereby the revision petition filed by the petitioners was dismissed and the revision filed by respondent was allowed.
3. Learned counsel for the petitioners while challenging the concurrent findings of facts on various issues, concentrated on the fundamental question relating to the performance of talabs and consequently, we deem it proper to decide this basic question at the first instance and the decision of remaining issues would depend upon the decision of this basic issue. Learned counsel for the petitioners contended that Talab-e-Muwathebith was proved through oral evidence whereas the requirement of talab-e-ishhad was proved through the documentary evidence and to prove the performance of talbs with reference to the specific date and time or place as was held by this Court, was not necessary. The learned counsel has placed reliance on Noor Muhammad vs. Abdul Ghani (2000 SCM R 329).
4. Learned counsel for the respondent, on the other hand, in the light of the view taken by this Court in Abdul Qayum through legal heirs vs. Mushk-e-Alam and other (2001 SCM R 798) and in an unreported judgment given in Civil Appeal No, 560 of 1995 (Zarghoon Shah (deceased) through his L.Rs, Muhammad Yagoob Khan) decided on 26.6.1998, contended that in a suit for pre-emption, in similar circumstances, it was held that the requirement of making talab-e-muwathebith without specifying the date and place as well as the meeting in which announcement for exercising the right of pre-emption, was not proved. The pre-emptor in the present case placing reliance on the sole statement of Fazal-Qadir (PW-6), claimed performance of talab-e-muwathebith and according to this witness, on 8.8.1990 when he was on his way to the village of Haji Fazalur Rehman (plaintiff) Wahid Khan (vendor) told him about the sale and he informed this fact to Haji Fazalur Rehman on the same day at his dera in present of Nawab and Fazal. In cross-examination, he stated that Khalid Khan, vendor, also told him that sale was already in the knowledge of Haji Fazalur Rehman. The High Court having treated the statement of this witness, as admission of the pre-emptor in terms of Articles 30 to 36 of Qanun-e-Shahadat Order, 1984 held that the statement made by a witness against the interest of the party which produced him is although binding on such party but the substantive right of the parties must not be decided on the basis of only such an inconclusive admission and the list must be decided in the light of whole evidence. The conclusion drawn by the learned Judge in the High Court was that from the evidence on record, it was sufficiently established that the talabs were performed talabs in accordance with the requirement of Section 13 of NWFP Pre-emption Act, 1987 and upheld the findings of the appellate Court with the observation that performance of Talab-e-Ishhad was not disputed whereas the fulfillment of the requirement of talab-e-muwatabith about a week ago, was mentioned in the notice of talab-e- ishhad, therefore, the missing of specific date of making talab-e-muwatabit in the plaint or in the evidence was not fatal.
5. Having considered the argument of the learned counsel for the parties and perused the record with their assistance, we in the light of the views of this Court in the above referred judgments, regarding the manner of performance of talabs for exercise of right of pre-emption, deem it proper to examine the provisions of Section 13 of NWFP Pre-emption Act, 1987:-- "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-Muwathibath;
(b) talb-i-ishhad; and
(c) talb-i-khusumat Exnlanations: I. "talb-i-Muwathibat" means immediate demand by a pre-emptor 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 preemption are sufficient.
II. "Talb-i-ishhad" means demand by establishing evidence, III. "Talb-i-Khusumat" means demand by filing a suit.
(2) When 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-muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under Section 34, or knowledge, whichever may be earlier, make talb-i-ishhad by sending notice in writing attested by two, truthful witnesses, under registered cover acknowledgment 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 sub-section
(2) and Talb-i-Ishhad under sub-section (a), he shall make talb-i-khu sumat in the Court of competent jurisdiction to enforce his right of pre-emption."
6. There was general law of pre-emption in practice in the Provinces of Punjab and NWFP prior to the enforcement of Punjab Pre-emption Act, 1913, and NWFP Pre-emption Act, 1959, according to which the requirement of talabs for exercise of right of pre-emption was essential and talab-e- muwatabit was to be made immediately on acquiring the knowledge of the sale failing which the pre-emptor would loose right of pre-emption. The purpose was that the pre-emptor must exercise the right of pre-emption in strict compliance of the requirement of talabs and must not be encouraged to defeat sale and the existing law is almost based on the same concept.
7. The perusal of the notice, (Exp. P-7, dated 15.8.1990 of talccb-e' ishhad would show that performance of talab-e-muwatabit was made a week ago in presence of witnesses whereas in the plaint, the performance of talabe-muwatabit was claimed in general terms without specifying the date, place or the meeting in which the announcement was made for exercise of right of pre-emption. The provisions of Section 13 of NWFP Pre-emption Act, 1991 are based on the concept of talabs which are recognized as the rule of Islamic Law of pre-emption according to which for exercising of right of pre-emption, fulfillment of requirement of talabs is essential and without performance of talab-e-muwatabit and talab-e-ishhad, right of talab-e-khusumat is extinguished. The existing law of pre-emption is not different to that of the above concept of Islamic Law of Pre-emption because NWFP Pre-emption Act, 1991 was enacted in the light of the judgment in Said Kamal's case (PLD 1986 SC 360) wherein the old NWFP Pre-emption Act, 1950 was declared repugnant to the Injunctions of Islam.
8. This is settled law that pleading of a party is based on the statement of facts given therein which are proved by producing evidence at the trial and in that the names of witnesses and gist of evidence is not required to be given in the plaint or written statement as it is not part of pleadings rather pleading is contained only on material facts. This general principle of law of pleadings is applicable to all suits and no exception can be taken in the suit for pre-emption and consequently, according to the general principle, the performance of talab-e-muwatabit and talab-e-ishhad must be specifically pleaded in the plaint by giving the date and the place of its making without giving the gist of evidence and the names of witnesses.
Talab-e-muwatabit is the first talab for exercise of right of pre-emption and without performance of talab-e-muwatabit, the performance of talab-e-ishhad is meaningless to maintain the suit. The second talab is talab-e-ishhad which is based on the performance of talab-e-muwatabit and a pre-emptor who has not been able to prove performance of talab-e-muwatabit, cannot succeed in the suit merely on the basis of proving talab-e-ishhad. It is the settled law that a fact which is not pleaded in the plaint, cannot be allowed to be proved through evidence. In the present case, the pre-emptor in general terms claimed performance of talab-e-muwatabit in the notice of talab-e-ishhad on the basis of information conveyed to him by (PW6) without disclosing the place and the date on which he on coming to know about the sale made talab-e-muwatabit. The sale took place on 29.1.1990 and notice of talab-e-ishhad was given on 15.8.1990 wherein the making talab-e-muwatabit was claimed a week before the issue of notice talab-e-ishhad therefore the sole question for determination would be whether requirement of talab-e-muwatabit without giving the date, time and place in the plaint alongwith the names of persons who were present in the majlis in which the announcement was made for filing the suit for pre-emption was fulfilled.
The disclosure of the fact relating to the performance of talabs is pure question of fact and in the plaint it would be sufficient to disclose the performance of both talab-e-muwatabit and talab-e- ishhad to exercise the right of pre-emption and determination of the ancillary question for the purpose of establishing such right but the performance of talabs must be proved through the reliable evidence. This Court in Noor Muhammad vs. Abdul Ghazni (2000 SCM R 329) decided by a bench comprising of five learned Judges, has held that mentioning of time, date and place or names of witnesses in whose presence talab-e-muwatabit was made, was not necessary requirement of law to establish performance of talab-e-muwatabit whereas in a subsequent case Muhammad Saleem vs. Khuda Bakhsh (PLD 2003 SC 315) decided by a bench of three learned Judges, it was held that right of pre-emption was not activated unless talab-e-muwatabit was performed specifying the date and time in the pleadings for the reason that time for performing talab-e-ishhad was to be counted from the date of talab-emuwatabit. In another judgment of this Court Muhammad Siddique vs. Muhammad Sharif (2005 SCM R 1231), it was reiterated that if the proof regarding date, time and place of making talab-e-mutawatabit and acquiring knowledge by the plaintiff about the transaction of sale is given in general terms, performance of talab-e-muthwatabit and talab-e-ishhad is not satisfied. The subsequent view taken by the different benches of this Court on the face of it appears to be in conflict to that of the earlier judgment given by a bench of five judges and in the light of rule of propriety the judgment rendered by a larger bench is given preference but we having perused the judgments, referred above, find that in principle, there was no difference of opinion on the question of law rather the legal position with reference to the peculiar facts of the each case, was discussed in different manner. There can be no cavil to the proposition that each material fact is not required to be given in pleadings and similarly, the names of witnesses or gist of evidence is also not required to be mentioned in the plaint but the basic facts which are considered the foundation of the case of a party, must be disclosed in the plaint. This is settled law that a fact which was not disclosed in the pleadings, cannot be subsequently allowed to be proved and thus if a party wants to prove a particular fact which was not pleaded, cannot be permitted to lead evidence on such fact for the reason that second party could not set up his case in rebuttal in the written statement. In Noor Muhammad vs. Abdul Mani (2000 SCM R 329) the plaintiff pleaded performance of talab-e- mutawatabit in the plaint without giving time and place of making this talab and in the subsequent judgment, talab-e-mutawatabit was also pleaded in general terms, therefore, it was observed that without proving talab-emuwatabit which was foundation of the case of pre-emptor right of preemption could not be exercised. It is the requirement of law to make talab-eishhad within two weeks from the date of making talab-e-muwatabit and if making of talab-e-muwatabit is not satisfactorily proved the making talab-e- fakhad within the specified time cannot be proved and in consequence thereto the right of pre-emption is defeated. The principle laid down in the first case referred above, would definitely be applicable to a case in which talab-e-muwatabit is made immediately after the sale and talab-e-ishhad is made within two weeks form the date of sale. In such a case, only reference of talab-e-muwatabit in the notice talab-e-ishhad and in the plaint, would be sufficient but in a case in which the pre-emptor having claimed to acquire the knowledge of sale beyond the date of sale pleaded making of talab-emuwatabit in general terms without specifying date and other necessary particulars of talab-e-muwatabit, this basic condition for exercising the right of pre-emption would remain unproved. In such situation, it would be essential for the pre-emptor to prove the correct date of knowledge and the place of meeting in which he announced for the exercise of right of pre emption. The performance of talab-e-ishhad is the second talab, the fulfillment of which depends upon the presence of talab-e-muwatabit and unless the date and place of making talab-e-muwatabit is specifically mentioned in the plaint or proved through the evidence, the performance of talab-e-ishhad cannot be claimed to have been proved in terms of Section 13(3) of the ibid Act. Talab-e-muwatabit in terms of Section 13 means the immediate demand by a pre-emptor in the sitting or a meeting (majlis) in which he has come to know about the sale and declared intention for exercise of right of pre-emption and talab-e- ishhad is second talab which is essentially performed within two weeks from the date of performance of talab-e-muwatabit. The explanation to sub-section (1) of Section 13 provides that requirement of disclosing particulars of on is essential and without proving the date, time and place of meeting, it would not be ascertainable that when and in which majlis and in whose presence, pre-emptor made announcement for exercising the right of pre-emption. In nutshell, in a case in which talab-e-muwatabit was made beyond the period of two weeks from the date of transaction of sale, it would be essential for the pre-emptor to disclose the specific data of his knowledge and place of majlis in which he made talab-e-muwatabit, failing which neither talab- e-muwatabit nor talab-eishhad would be proved. In the present case, there is nothing in the evidence that on which particular date, the pre-emptor acquired the knowledge of transaction as Fazal Qadir (PW-6) who claimed to have conveyed the information of sale to the pre-emptor on 8.8.1990, has clearly stated in cross-examination that pre-emptor was already in the knowledge of sale whereas the pre-emptor asserted that he on coining to know about the sale on 8.8.1990 through Abdul Qadir (PW6), there and then made talab-e-muwatabit. In these circumstances, the claim of pre-emptor that he had no prior knowledge of sale and made talab-e-muwatabit on the information given to him by Abdul Qadir, would not be proved in the entire satisfaction of the requirement of law. Therefore, the presumption would be that preemptor had the knowledge of sale before making the announcement for exercising the right of pre-emption. The statement of a witness on a fact contrary to the pleading of the party which produced him in the Court, is not as such an admission of that party on such fact but the statement of such witness would be binding on such party. In the present case, we find that Fazal Qadir (PW-6) has clearly stated that prior to his conveying the information to the pre-emptor about the sale, he had already information about the transaction and thus the pre-emptor having not re-examined the witness, impliedly conceded the knowledge of sale prior to 8.8.1990. In these circumstances, the petitioners pre-emptor cannot get benefit of 'judgment rendered in Noor Muhammad vs. Abdul Ghani (2000 SCM R 329).
11. In the light of foregoing discussion, we convert CP 424/04 into appeal, set aside the judgment of the High Court and restore that of trial Court. The appeal stands allowed with no order as to costs.
CP 528/03 is dismissed accordingly and leave is refused.
Sd.
Sardar Muhammad Raza Khan, J.--While agreeing with the conclusion drawn by my learned brother Honourable Mr. Justice Muhammad Nawaz Abbasi, I would dilate upon the question whether to mention the details of talb-i-muwathebat in the paint or not.
2. The debate on this question started with a judgment of a Division Bench of Peshawar High Court reported as Abdul Qayyum Khan vs. Musa Khan (1995 CLC 729) decided on 5.12.1994 where it was held that the details of talb-i-muwathebat like time, place and the persons before whom such talb is made, are necessary to be mentioned in the plaint. Soon thereafter similar view was taken by the Supreme Court in Shafi Muhammad v. Hazar Khan (1996 SCM R 346) where it was categorically held that the mention of any of the particulars which required to be disclosed in connection with talb- imuwathebat and talb-i-ishhad, was necessary to be made in the plaint. The particulars required to be disclosed obviously were the same which were determined in the judgment of the Peshawar High Court in case of Abdul Qayyum Khan (supra).
3. Thereafter various Benches of this Court and different view until a larger Bench judgment in Altaf Hussain's case (2000 SCM R 314) wherein it was held that a plaintiff could not be non-suited on the ground that date, time and place were not specifically pleaded in the plaint. This judgment, no doubt of a larger Bench, was again distinguished by this Court in Haji Muhammad Saleem v. Khuda Bukhsh (PLD 2003 SC 315) on the main ground, inter alia, that a most important aspect of limitation attached to talb-i-muwathebat was not considered by the larger Bench and had it been considered, the conclusion would have been different altogether. The aforesaid view of a Full Bench of this Court was further reiterated in Akbar Ali Khan's case- (P14 2005 SC 844), rendered by another Bench of three Judges.
4. Apart from limitation involved in the matter of talb-i- muwathebat I may rotor even with reference to Order 6, Rule 2 of the CPC that the detailed particulars of taTh-i-muwathebat are necessary to be mentioned in the plaint even under Order 6, Rule 2 and Rule 4 of the CPC. For convenience of reference, Order 6, Rule 2 is reproduced: "2. Pleading to state material facts and not evidence.--Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved and shall, when necessary, be divided into paragraphs, numbered consecutively, Dates, sums and numbers shall be expressed in figures."
5. The rule aforesaid requires every pleading to contain only the material facts on which the claim or defence is made. In the matter under discussion the material fact is talb-i-muwathebat. This talb is peculiar in its nature and explains that talb-i-muwathebat is to be performed in a Maj/is where the information of sale transaction was disclosed to the prospective pre-emptor. As the phenomenon of talb-i-muwathebat carries essentially the element of limitation, mentioning of date and time of the disclosure of information is absolutely necessary. It is again necessary because talb has to be made before the dispersal of Majlis.
6. As the existence of a Majlis is a most material fact related to the performance of talb-i- muwathebat, the constituents of the Majhs are also necessarily to be mentioned. Such constituents of Majlis are nothing but the members thereof who ultimately are the witnesses to the talb-i- muwathebat. Keeping in view the peculiar nature of talb-i-muwathebat where the description of Majlis is of utmost importance, the members of such Majlis who are obviously the 'witnesses to such talbs, are necessary to be mentioned in the plaint.
7. When concerned with the question of limitation as well as with the description of Majlis, the detailed particulars become necessary to be mentioned in the pleadings. Such exceptional cases are covered by Order 6, Rule 4 of the CPC as follows: "4. Particulars to be given where necessary.--In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading."
8. I am, once again of the view that all such matters concerning limitation as well as Order 6, Rules 2 and 4 CPC were not attended to by the larger Bench. I believe that on such grounds the subsequent Full Benches in cases referred to above have amicably distinguished the decision given by the larger Bench. With these remarks, however, I agree with the conclusion drawn in the instant case by my learned brother.