ORDER MUHAMMAD JEHANGIR ARSHAD, J.- The petitioner who was plaintiff before the learned Trial Court is aggrieved of the Judgment dated 03.05.2006 whereby appeal filed by him against dismissal of his pre-emption suit by the learned Trial Court on 07.02.2005, was also rejected by the learned Additional District Judge.
2. The facts in brief are that land measuring Kanal, 9 Marla situated in village Panjgran Nashaib, Tehsil. Dariya Whan, District Bhakkar was sold by one Atta Muhammad son of Hussan to Zulfiqar Ali respondent/defendant vide Mutation No 1691 dated 12.06.1992 for a, price of Rs. 40,000/- The petitioner in order to claim her right of pre-emption over the said land, filed a suit before the learned Trial Court stating that she on obtaining knowledge of the said sale at 8.000 in the morning of 9.7.2062 through one Riaz, expressed her willingness to pre-empt the same and thus performed talb-i-muwathibat per requirement of Section 13 of the Punjab Pre-emption Act, 1991 (Sic) Sadiq and Riaz Hussan and sent notice to witnesses on 10.07.2002 through registered acknowledgement due and. Thus completed talb-i-ishhad but on refusal of the respondent to transfer the property in question to her she was forced to file the suit. The suit was contested by the respondent through written statement who besides denying the contents of the plaint also took the plea that he was entitled to obtain ancillary charges borne by him for the attestation of mutation along with sale price of Rs. 40,000/-. The. Learned Trial Court after framing the following issues directed the parties to lead. Their evidence:- ISSUES:
(1) . Whether the plaintiff has fulfilled the requisite talbs of law? OPP.
(2) . Whether the plaintiff has superior right of pre emption qua vendee/defendant? OPP.
(3) . Whether the plaintiff is estopped by his words and conduct to file this suit? OPD.
(4) . Whether the suit is time barred? OPD.
(5) . Whether the suit is incorrectly valued for the purposes of Court fee and jurisdiction? OPD.
(6) . Whether the defendant is entitled for additional charges in case of decree of plaintiff suit? OPD.
(7) . Whether the plaintiff has filed false, frivolous suit and in case of dismissal, defendant is entitled to special costs under section 35-A, CPC? OPD.
The petitioner in her evidence produced Ghias Ahmed Post-Master PW-1 to prove postal receipt; Hassan Raza PW-2-Post-Man who endorsed the delivery of notice to the petitioner through E>u P-2, Sh. Muhammad Akhtar notice Ex. P-3; the petitioner herself appeared as PW-4; produced Muhammad Sadiq PW-5 and Riaz PW-6 both witnesses of talb-i-muwathibat and also with regard to the attestation of notice Ex. P-3. The petitioner closed her evidence by tendering documents Ex.
P-1 to Ex. P-5, In rebuttal the respondent himself appeared as DW-1, produced Muhammad Yousaf DW-2 and closed her evidence by tendering document Ex. D-1 to Ex. D-3. Oh the conclusion of trial, the learned Trial Court vide judgment dated 07.102005 decided Issues Nos. 2, 3, 4, 5 and 6 against the respondent but dismissed her suit on the basis of his findings on Issue No. 1 holding that petitioner failed to fulfil the requisite Talabs under the law. The judgment and decree of the learned Trial Court was appealed against by the petitioner but the same was also dismissed by the learned Additional District Judge, Bhakkar on 03.05.2006, hence, this Civil Revision.
3. It has been argued by learned Counsel for the petitioner that findings of two Courts below on Issue No.1 are based on ?Urmises and conjectures and the learned Courts below while answering the said issue against the petitioner not only failed to properly appreciate the evidence ' but also the Law on the question of Talabs as laid down in Haji Feroze Khan and another versus Amir Hussan through LRs. And others" (2004 SCM R 1719) and (2006 Y.L.R 1321). Further submits that the learned two Courts below wrongly interpreted the statement of PW-6 Riaz whereby according to the two Courts below the said witness had deposed that he conveyed information of taking place of sale to the petitioner on the next date of the sale and that he had accompanied the petitioner to Bhakkar on the next date when he' imparted information of sale for sending notice of talb-i-ishhad. Finally the learned Counsel argues that the two Courts below through the impugned judgments have too much placed reliance on technicalities unnecessarily while appreciating the statement of PW-3.
4. The above arguments of the learned Counsel have been considered in the light of evidence available on record and the case-law.
5. Admittedly, per petitioners case she was first informed about sale through Riaz PW-6, In her plaint as well. As notice. Ex. P-3 she has given a definite date i.e. 09.07.2002 on which she was conveyed the information about sale having taken place by Riaz PW-6 , whereas, said Riaz while appearing in the witness-box has stated:- {{Urdu Text}} The above portion of statement of Riaz PW-6 leaves no doubt that said Riaz conveyed information to the petitioner about the factum of sale in question on the date when Mutation No. 1691 was attested i.e. 12.6.2002, whereas per contents of para-2 of the plaint as well as notice Ex. P-3 the petitioner made talb-i-muwathibat on 09.07.2002 and sent the necessary notice on 10.07.2002 which is violative of mandatory provision of law as contained in Section 14 of the Punjab Pre- Emption Act, which makes it mandatory that talb- i-muwathibat be made immediately on getting knowledge of the sale in the presence of two witnesses and per requirement of sub-section (3) of Section 13, talb-i-Ishhad has to be made by sending notice in writing attested by two truthful witnesses under registered acknowledgment due to the vendee as soon as possible but not later than two weeks from the date of making talb-i-mawathibat and it terms of contents of the plaint as well as notice Ex. P-3 the petitioner made talb-i-muwathibat on 09.07.2002 and also sent notice of talb-i-Ishhad on 10.07.2002, whereas per evidence of Riaz PW-6 he had imparted information of sale to the petitioner next date of the sale, hence talb-i- muwathibat. Made by her on 09.07.2002 was neither immediate from the date of knowledge nor was the legal fulfillment of requirement of talb-i-muwathibat. Similarly, sending of notice by the petitioner on 10.07.2002 was also not within two weeks from the date of getting knowledge of the sale, which according to PW-6 the petitioner acquired on the second day of the sale. Therefore, the petitioner failed to establish performance/fulfilment of. Requisite Talabs within the meanings of Section 13 of the Punjab Pre- emption Act.
6. So far as the case-law referred to by the learned Counsel for the petitioner is concerned, the same is distinguishable has much as, the facts in Feroze Khan's case (2004 SCM R 1719) were quite different as there were only minor discrepancies in' the statements of the plaintiff and PWs 'on the question of performance of talb-i- muwathibat and there was no dispute about the time of acquiring knowledge of the sale by the time of acquiring knowledge of the sale by the plaintiff for the purposes of making talb-i-muwathibat which is condition requisite for making the said talab. In the instant case the very foundation of evidence of the petitioner viz. Statement of PW-6 Riaz has .Been shaken in cross-examination and no doubt is left that despite getting knowledge of the sale on the day of making of sale or the next date of the s ale, the petitioner failed to make immediate demand in the form of talb-i-Ishhad within two weeks from the date of knowledge. Therefore, I do not find any infirmity, illegality, irregularity or jurisdictional defect in the findings of two Courts below on evidence, especially the statement of PW-6 which to me is neither ambiguous nor-ague as argued by learned Counsel for the petitioner hence, no interference is called for in the concurrent findings of two Courts below on issue No. 1.
7. The upshot of above discussion Js that -this Civil Revision has no force and is dismissed in limine.