MUHAMMAD MUZAMMAL KHAN, J.--- Instant appeal assailed the judgments/decrees, dated 30.7.2005 and 21.3.2006 passed by the learned Civil Judge and the' learned Additional District Judge, Faisalabad whereby appellant's suit for possession through pre-emption and his appeal were dismissed, respectively.
2. Succinctly, relevant facts are that suit land was sold by the real brother of the appellant who was his co-sharer, through a registered sale-deed dated 15.4.2004 when he was in custody of NAB Authorities. The appellant on 10.8.2004 filed a suit for possession through pre-emption against the sale, with the averments that he on 18.7.2004 while sitting in the "Baithak" of one Ch. Muhammad Aslam in Chak No. 201-R.B in the presence named witnesses, was informed by Ch. Muhammad Aslam that his brother had sold his share of land from the joint "Khata" whereupon the appellant proclaimed his intention/desire of pre-empting the same as his pre-emptive right was superior qua the vendees. The appellant pleaded to have instantly performed "Talb-i-Muwathibat" and thereafter demanded from the vendees /defendants, in the presence of witnesses for return of land sold to them, on payment of price paid by them but they refused. It was also averred by the appellant that he through his counsel, on 22.7.2004, issued a notice of "Talb-ilshhad" to the vendees which was delivered to them through one All Ahmad, their associate and in this manner he fulfilled the requirement of performance of "Talb-i-lshhad". The appellant emphasized that sale in question was kept in a guarded secrete and was fictitiously shown to have purchased by the respondents for the ostensible sale price mentioned in the sale-deed which according to him, was inflated to defeat his pre-emptive right of being "Shafi Sharik", "Shafi Khalit" and "Shafi Jar". The appellant in his plaint submitted that no public notice in terms of Section 31 of the Punjab Pre-emption Act, 1991 was given. He claimed that by filing suit he performed "Talb-i-Khasumat".
3 All the six respondents being vendees /detendants, contested the suit by filing their written statement wherein certain preliminary objections were raised, regarding construction of "Havaili" by expanding Rs. 3,00,000/- earlier to the institution of the suit. On merits, the appellant's superior right was denied and performance of "Talabs" by him in accordance with law, was refuted by specifically denying receipt of notice of "Talb-i-lshhad". It was also averred that the appellant was aware of the transaction of sale, as his real son got a criminal case registered against them.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge seized of the matter, after doing the needful, dismissed the suit of the appellant vide his judgment/decree dated 30.7.2005.
4. The appellant aggrieved of decision of his suit by the Trial Court, filed an appeal before the learned Additional District Judge but remained unsuccessful as the same was dismissed on 21.3.2006. The appellant, thereafter, filed instant second appeal for ad judgment of concurrent judgments/decrees wherein the respondents in response to notice by this Court, appeared and were represented through their counsel.
5. It was contended on behalf of the appellant that the appellant had proved performance of the required "Talabs" in accordance with Section 13 of the Punjab Preemption Act, 1991 through consistent/un-impeached evidence but a contrary view taken by the two Courts below, being opposed to evidence on the file deserved to be reversed. According to the learned counsel, the appellant after release from the jail, gained knowledge of sale in question on 18.7.2004 when he instantly performed "Talb-iMuwathibat" in presence of the witnesses, in the same Majlis and, all the 3 witnesses i.e. PWs. Nos. 4 to 6 were examined to prove "Talb-i-Muwathibat" who were unanimous about the date, time and place of its performance but contrary findings, being opposed to the depositions of these witnesses, cannot be maintained at law. He further emphasized that view taken by the Appellate Court regarding non-production of the informer in the witness-box was not fatal to the suit for preemption especially when "Talb-i-Muwathibat" was fully corroborated by the other witnesses. Reference in this behalf to the judgments in the cases of Sikandar Khan and 6 others vs. Muhammad Nawaz and 2 others (2004 YLR 865) and Muhammad Aslam Shah vs. Aman Ullah Khan (2006 YLR 1194) was made. It was further contended that the appellant on 22.7.2004 i.e. Within two weeks of gaining knowledge of the sale and performance of "Talb-i-Muwathibat", dispatched notice of "Talb-i-Muwathibat" under a registered post acknowledgement due which was delivered by the Postman on the correct address and was received by the respondents through their companion Ali Ahmad. According to him, postal receipt Ex.P.1 and acknowledgement due received back, were also proved by the Postal Clerk and Postman besides which notice of "Talb-i-lshhad" was proved by its marginal witness and the Trial Court in its judicial discretion had allowed proof of the photo-stat copy of the notice through C.L.R. secondary evidence. The learned counsel for the appellant relied upon the judgments in the cases of Abdul Malak vs. Muhammad Latif (1999 SCJ 302), Khalid Hussain vs. Muhammad Bag& (NLR 2002 Civil 625), Pervaiz and another vs. Muhammad Nawaz (PLJ 2006 SC 242) and A/taf Hussain Shah and another vs. Abdul Qadeer and 2 others (2004 YLR 824), Munshi Khan vs. Khan Zaman and others (2003 M LD 1666), in support of his submissions that photostat copy of the notice of "Talb-i- Ishhad" having been entertained by the Trial Court as secondary evidence and no notice to produce the original notice was needed in view of Article 77(a) of Qanoon-e-Shahadat Order, 1984, the same stood proved through the evidence of postal clerk and postman (PWs Nos. 1 and 2). In support of the view regarding permission of secondary evidence, granted by the Trial Court in terms of Article 77 of Order (ibid), the learned counsel for the appellant, banked his arguments on the two erstwhile judgments of the Honourable Supreme Court in the cases of Mst. Taj Bibi vs. Syed Ahmad Shah (1989 SCM R 1001) and Syed Qamar Ahmad and another vs. Ahjam Zafar and others (1994 SCM R 65). According to the submissions of the learned counsel for the appellant, since superior preemptive right of the appellant had been proved on the file, thus by reversing findings of the two Courts below on issue No. 2, his suit may be ordered to be decrees with costs, throughout.
6. The learned counsel for the respondents refuted the arguments of the appellant, supported the concurrent judgments of the two Courts below and urged that all the six respondents, through registered sale-deed Ex.P.4, dated 15.4.2004 purchased the suit land jointly, which was in the knowledge of the appellant inspite of being in custody of the NAB Authorities, as his real son Ghulam Miran had been following the transaction and had been conveying information to the appellant. According to him, appellant's one son Ghulam Miran got the copies of the revenue record of the suit land from the. Patwari concerned on 20.4.2004, 22.4.2004 and 25.6.2006 through Ex.D.1 to Ex.D.9 whereas his other son Rehmat Hassan had got the criminal case registered against the respondents/vendees thus it could not be said that the appellant was not aware of the sale in favour of the respondents. It was further emphasized that though the appellant did not perform "Talbi-Muwathibat" instantly on gaihing of knowledge inspite of being in custody of NAB authorities yet notice of "Talb-iIshhad" was not dispatched within prescribed time, and that too, to all the vendees and the one dispatched was not delivered to any of the respondents and did not reach them thus evidence on the file about proof of the performance of "Talb-i-lshhad" was lacking. It was also contended that the appellant having not performed "Talabs" in accordance with law, his pre-emptive right, if any, stood extinguished. According to the learned counsel for the respondents, the appellant never obtained permission of the Trial Court to Prove notice of "Talb-i-Ishhad" through secondary evidence and instead, insisted that photo-stat copy thereof, was admissible in evidence, per se. Reference to the judgments in the cases of Abdul Qayyum vs. Muhammad Rafique (2001 SCM R 1651), Ameerzada Khan and others vs. Ahmad Noor and others (PLD 2003 SC 410) and Hyderabad Development Authority through M.D. Civic Centre, Hyderabad vs. Abdul Majeed and others (PLD 2002 SC 84), was made to contend that party producing any private document, was required to prove it either by leading primary or secondary evidence under the mandate of the Court and the law applicable. These judgments were also relied in support of the claim that a pre-emptor has to prove both "Talb-i-Muwathibat" and "Talb-i-lshhad" simultaneously in his case of his failure, his right would stand extinguished. The learned counsel for the respondents contended that a photocopy of the notice, though prepared by mechanical process, was not entertainable unless the same had been permitted to be produced and there is evidence on the file that this copy was correctly prepared from the original but in the instant case, the appellant having not moved for any such permission, he was not entitled to produce any such copy which was rightly objected by them at the time of recording of evidence. According to estimations of the learned counsel for the respondents, both the Courts below have returned their judgments in consonance to the record and their findings are strictly in accordance with the evidence on the file and no part thereof was asserted or shown to have been misread, consequently, concurrent judgments cannot be interfered by this Court, in second appeal.
7. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record. The learned counsel for the appellant did not address me regarding dismissal of appellant's application under Order XLI, Rule 27, CPC by the first Appellate Court refusing to accept in evidence, the order of release of the appellant from the Jail, by way of additional evidence but I assuming that the appellant was in custody at the time of sale, proceed to decide this case. The appellant pleaded in his plaint that he on 18.7.2004 (Sunday) at 10.00 a.m.
While sitting in the "Baithak" of Ch. Muhammad Aslam son of Fazal Din at Chak No. 201-R.B. District Faisalabad in presence of Syed Ghulam Miran Shah son of the appellant, Asif Mehmood son of Abdul Majeed, Ch. Maqsood Ali son of hammad, was informed by Muhammad Aslam that his brother nad sold the suit land when he immediately exclaimed, in the same Majlis, his intention of pre-empting it, as his pre emptive right was superior qua the vendees. He further pleacleu mat thereafter, in presence of the same witnesses, he demanded from the defendants transfer of suit land in acknowledgement of his superior right and his Zarar/Zaroorat. Against the price paid by them but they refused whereupon he through his counsel dispatched the notice in this behalf, attested by witnesses, under a registered postal cover acknowledgement due which was delivered to the defendant through Ali Ahmad, their associated. These averments in the plaint depicted that the appellant has not mentioned that when and where demand of "Talb-i-Ishhad" was directly made to the respondents. In the light of these averments in the plaint, the appellant went on to prove his case and examined 3 witnesses (PWs.4 to 6) regarding performance of his "Talb-i- Muwathibat".
8. Regarding gaining of knowledge of the sale, on the alleged date of 18.7.2004, his first witness on this point was PW.4 Maqsood Ali who deposed that the appellant was in Jail when the respondents purchased the suit land and he was released on 18.7.2004. According to this witness appellant came to the village on the same day i.e. 18.7.2004 and desired to offer "Fateha Khani" at the graves of his elders. He went on to state that on our way to grave-yard, we stopped at the house of Ch. Muhammad Aslam for "Fateha Khani" for his nephew who was said to have died. After "Fateha Khani" Ch. Muhammad Aslam informed the appellant that suit land had been sold through registered sale-deed, whereupon the appellant performed "Talb-iMuwathibat" in the same Majlis.
This witness further deposed that then we went of "Tomb" where we remained till quarter to 11.00 at night at 11.00 p.m., we went to the house of Faqir Hussain (respondent) where Ashiq respondent was also present and the appellant in presence of the named four witnesses demanded transfer of suit land in acknowledgement of his superior pre-emptive right but the said respondents refused. He further stated that on the next day i.e. On 18.7.2004 we went to the Patwari of the Circle and got the copies of the revenue record and thereafter on 20.7.2004, the appellant and his son Ghulam Miran again visited Faqir Hussain respondent and on his denial to transfer the suit land, we got the notice of "Talb-i-Ishhad" prepared on 22.7.2004 and dispatched the same. Photo-stat copy of the notice dispatched (Ex.P.3) contained his signatures Ex.P.3/1 to which the learned counsel for the respondents objected that photo-copy cannot be produced. According to narrations of PW.4 the appellant performed "Talb-i-Muwathibat" on 18.7.2004 and on the same day at night time at 11.00 p.m. He made "Talb-i-lshhad" in presence of two of the respondents/vendees and repealed on 20.7.2004 in presence of one of the respondents and on repeated refusal, notice was dispatched on 22.7.2004.
The other witnesses of "Talb-i-Muwathibat" was Asif Mehmood PW.5 who apparently corroborated the statement of PW.4 and deposed that the appellant after his release from the Jail, came to village on 18.7.2004 and performed "Talb-i-Muwathibat" at 10.00 on information conveyed by Ch. Muhammad Aslam in his "Baithak". Stance of this witness was also that the same day at 11.00 p.m.
Verbal "Talb-iIshhad" was performed by the appellant in the house of the respondents.
The appellant himself appeared as PW.6 and deposed that the suit land was part of joint holding, falling on heirs of his father through succession which was in his cultivation. He further stated that his brothers sold their respective shares when he was in custody of the NAB Authorities and the price mentioned was inflated to defeat his pre-emptive right. He went on to depose that he was released on bail and he went to Depalpur to visit his relations and came to his village on gaining health on 18.7.2004 when he went to the grave-yard alongwith his son Ghulam Miran, Maqsood All and Asif Mehmood etc. On way at about 10.00- a.m., he deposed that they stopped at the house of Ch. Muhammad Aslam as his nephew had died. Ch. Muhammad Aslam informed at that time that suit land had been sold to the respondents whereupon he immediately expressed his intention to pre-empt the sale. Thereafter they remained busy till evening when he along companions, went to the Baithak of the respondents and demanded return of suit land but they refused. This demand was repeated on 20.7.2004 and on refusal notice of "Talb-i-lshhad" was dispatched on 22.7.2004 though Ch. Abdul Salam, AdVocate, copy of which was Ex.P.3 and his signatures were Ex.P.3/3. In cross-examination the appellant replied to a question put to him regarding his release from custody of the NAB Authorities that he did not remember this date but he admitted that his son Ghulam Miran had been visiting him in jail and was present outside the jail when he was released.
Cross-examination of this witness revealed that he deliberately avoided to answer to the question by saying that he is not aware.
This is the entire evidence produced by the appellant in support of his stance and his statement revolved around the fact that "Talb-i-Muwathibat" was performed in the Baithak of Ch. Muhammad Aslam on his information conveyed to the appellant but Ch. Muhammad Aslam was not examined as witnesses and no reason whatsoever has been extended for his withholding, inspite of the fact that he was a star witness being informer and his nonproduction/examination raises an adverse inference against the appellant as per decision in the case of Muhammad Yousaf (supra). Vendor is real brother of the appellant who sold his share out of joint holding through a registered sale- deed dated 15.4.2004 on the basis of which a mutation was also sanctioned. The appellant's real sister Mst. Mosharraf Bibi filed a suit for permanent injunction, earlier to execution of sale-deed under pre-emption, with the prayer that vendor may be restrained from alienating any specific part or specific khasra number from the joint khata. She also moved an application under Order XXXIX, Rules 1 and 2, CPC, which was dismissed, on 13.4.2004 though order Ex.D.13. Copy of the plaint filed by Mst. Mosharraf Bibi was produced in evidence as Ex.D.11. Ghulam Miran real son of the appellant who had been visiting the appellant in Jail and received him when he was released as per statement of the appellant as PW.6, alongwith one Syed Tayab Hussian got copies of the revenue record (jamabandi) of the quit land on 20.4.2004, 22.4.2004 and 26.6.2004, as is evident from the copies of Rapt No. 696 Ex.D.7, Rapt No. 701 Ex.D.8 and Rapt Nb. 903 Ex.D.9. The appellant's another son Rehmat Hassan Gilani got a criminal case registered vide F.I.R. No. 273, dated 25.4.2004 under Sections 440, 448, 148, 149, 337-H, PPC against the respondents/vendees with the allegations that they on 19.4.2004 at 5.30 a.m. Forcibly took over the cultivated land, which was part of the joint holding and was in physical possession. Of his father for the last 20/25 years.
Registration of this case was admission that respondents/vendees after purchase of suit land through registered sale-deed, dated 15.4.2004 took over the possession of the same on 19.4.2004.
This all, left no doubt that the appellant was aware of negotiations of the transaction amongst the respondents/vendees and his brother/vendor that is, why Ghulam Miran real son of the appellant got the copies of the revenue record from the patwari concerned. This fact was further affirmed from the copy of the plaint filed by Mst. Mosharraf Bibi Ex.D.11 and it remains beyond ones' comprehension that real sons of the appellant and his sister, had not conveyed any information to the against about saIa. Appellant being cognizant of the bargain, became aware of the completed sale when the respondents took over the forcible possession of the land according to F.I.R. No. 273 got registered by nis son Rehmat Hassan Gilani.
9. From the above resume of facts, the appellant was aware of the sale in question at least since 19.4.2004 when respondent's had taken over possession of the suit land and his son Rehmat Hassan Gilani got criminal case registered vide F.I.R. No., 273, dated 25.4.2004 and the entire story of performance of "Talb-i-Muwathibat" as deposed by the PWs was manoeuvred that is why the appellant deliberately did not mention his date of release and introduced in evidence, his visit to Depalpur to his relations in preference to his own sons and other blood relations, without mentioning any reason in this behalf. The appellant also did not mention the period of his stay at Depalpur and did not examine any of the persons with whom he allegedly stayed there. The appellant had been deprived since 19.4.2004 of his possession of the suit land, leading to registration of criminal case and one fails to understand how this fact remained out of his knowledge especially when his sons used to see him in the jail and received him when he was released. Appellant did not mention material facts in his notice Ex.P.3 which were subsequently deposed by him to negate his claim of gaining of knowledge on 18.7.2004 i.e. After a long period of 3 months from the date of sale through registered sale-deed and his dispossession from the land.
10. Coming to performance of "Talb-i-lshhad" by the appellant, the same was not performed within the period of two weeks from the date of knowledge, in view of findings given in the foregoing paragraphs. Even otherwise, it could not be proved to have been performed in accordance with law. In the first place only one notice to all the vendees was allegedly dispatched, after lapse of 3 months of the. Knowledge of the sale which too was not delivered to any of them and was allegedly received by one Ali Ahmad who was not summoned to prove, his onward delivery of this notice to the respondents. There is not an iota of evidence on the file to show that how Ali Ahmad who allegedly received notice of "Talb-i-Ishhad" was related to the respondents and what authority he had to receive the notice on their behalf. In this manner deposition of PWs 1 and 2 became irrelevant because they only stated to have dispatched one notice and its delivery to All Ahmad.
Besides it, the appellant tendered in evidence a photo-stat copy of the notice, without there being any evidence that photo-stat copy produced, was the real/true copy of the original notice, and was correctly prepared through mechanical process. No doubt a photo-stat copy prepared through mechanical process would become admissible under Article 164 of the Qanoon-e- Shahadat Order, 1984 but for its admissibility, evidence of correct and true preparation of copy through mechanical process was needed which was not brought on record. Question, which hinges for determination is as to how a pre-emptor will prove notice of "Talb-i-lshhad". Before determining this question we will have to keep in mind; different circumstances regarding this notice. As per general practice notice issued by a lawyer or licensed Wasiqa Navees, copies of the notice dispatched, duly signed by the parties/witnesses who had signed the original, is being kept for record and further reference. The other circumstance could be that no copy signed by the parties issuing witnesses was kept and only a copy, hand written or prepared through mechanical process i.e. Unsigned copy is available and in the third circumstances, pre-emptor may not have any copy of the notice dispatched with him and he is required to prove the same after denial of receipt of notice by the vendee.
11. No doubt Article 77(a) of the Qanoon-e- Shahadat Order, 1984 exempted a party desirous of proving a notice, from giving a notice to the party in possession, thereof to produce the original but it does not restrict such party from getting such notice produced through process of the Court.
According to my humble view, in the first example noted above where party desirous of proving notice is equipped with copy of the original notice with original signatures of the party issuing its witnesses, may.Not opt to issue notice to his adversary, requiring him to produce the original and may lead evidence from the copy under original signatures but in the case of second and third example, inspite of exemption, the original notice has to be got produced by issuing a notice and on failure of the party in possession of notice to produce the same in Court, the preemptor is under obligation to seek permission of the Court to lead secondary evidence in proof of the notice.
12. The cases cannot be lost sight in which photo- stat copies can be fabricated and are being prepared through interpolation and misuse of mechanical process. If a pre-emptor is allowed to produce photo-stat copy of the notice by producing it from his own pocket at the time of recording of evidence, this course will not only negate the provisions of Qanoon-e-Shahadat Order, 1984 regarding proof of documents through original or secondary evidence but will also demolish the entire law of procedure and that of proof. Even otherwise, admissibility of some document is distinguishable from its proof and party producing admissible documents cannot be absolved of his liability to prove its due execution, existence and dispatch. Submissions of the learned counsel for the appellant to the effect that the appellant by producing photo-stat copy of the notice which was admissible being prepared through mechanical process, was relieved of his obligation to produce any other evidence especially in presence of statements of PWs who had supported it and that if at all secondary evidence was needed to prove the notice of "Talb-i-Ishhad", the same was accorded by the Trial Court at the time of the decision of the suit thus, in view of judgment in the case of Mst. Taj Bibi and Syed Qamar Ahmad and another (supra), notice stood proved in accordance with law, have not impressed me because those are not inconformity with the above- referred provisions of Qanoon-e-Shahadat Order, 1984, and the stare-decises, settled without any deviation and with great efforts of the superior judiciary of this country, spread over decades. Scan of evidence on the file, above reproduced, revealed that verbal "Talb-i-lshhad" besides being not proved to have been made from all the vendees, was allegedly made to 1/2 of them, did not relieve the appellant to prove the same to have been made by his alleged notice dated 22.7.2004 because it is the most important condition for enforcing right of pre-emption. Requirement of the provisions of Section 13(3) of the Punjab Pre-emption Act, 1991 are mandatory in nature and proof of performance of "Talb-i-Ishhad" either verbal or through notice attested by two truthful witnesses, was condition precedent. Had the appellant proved verbal performance of "Talb-i-lshhad", absence of proof of notice and dispatch of notice in this behalf being only a procedural matter, would have become irrelevant but since performance of "Talb-i-lshhad" otherwise than notice is not proved, we will have to concentrate on the proof of notice and its service on the vendees.
According to the appellant's own showings only one notice was dispatched to all the 6 vendees and that too was not delivered to any of them thus the obvious conclusion would be that respondents were not served with any notice of "Talb-i-lshhad" because their service through above-referred Ali Ahmad was not proved. The appellant while examining the marginal witnesses of the notice "Talb-i-lshhad", confronted them with a photo-stat copy which was also against the law, as these witnesses could only depose from the original notice or from copy thereof containing their original signatures thumb impressions and not otherwise. Viewing the case from another angle that in case any of the marginal witnesses connives with the vendees and the preemptor is needed to prove his signatures. This can only be done, had there been the original before the Court, but not otherwise. While forming this view I have to my credit judgments in the case of E.A.
Evans vs.. Muhammad Ashraf (PLD 1964 SC 536), Abdul Qayyum vs. Muhammad Rafique (2001 SCM R 1651), Rana Muhammad Tufail vs. Muneer Ahmad and another (PLD 2001 SC 13), Ameer Zada Khan and others vs. Ahmad Noor and others (PLD 2003 SC 410), Fazal Subhan and 11 others vs. Mst.
Sahib Jamala and others (PLD 2005 SC 977), Muhammad Riaz and another vs. Ghulam Nabi and another (2005 SCM R 1458), Muhammad Siddiqui vs. Muhammad Sharif and others (2005 SCM R 1231), 2005 SCM R 431, Akbar Ali Khan and others vs. Mukamil Shah and others (PLJ 2005 SC 844) and Pervaiz and another vs. Muhammad Nawaz (PLJ 2006 SC 242) and my own judgments in the cases of Akhtar Nawaz vs. Muhammad Zubair etc. (PLJ 2005 Lah. 719), Shaukat Hayat vs. Liaqat Khan (2005 YLR 60) and Abdur Razzaq vs. Ghulam Mustafa and another (2006 YLR 1143).
13. Scan of record and impugned judgments revealed that both the Courts below correctly decided the lis, without committing any error of law and concurrent findings thus returned being in consonance with the evidence and the law applicable, deserved no interference in second appeal, which is only permissible within the framework given by Section 102, CPC.
14. For the reasons noted above, no case for interference by this Court could be made out, consequently instant appeal being devoid of any merit, is dismissed with costs throughout.
R.S.A. Dismissed.