MAULVI ANWARUL HAQ, J --- Vide Mutation No. 458 attested on 2-9.11.1989 the respondents Nos. 1 to 8 (hereinafter to be referred to as vendees) purchased the suit land for a consideration of Rs.
6,00,0001-. On 16.12,1989, the petitioners and Mst. Sahib Bibi, respondent No. 9 filed a suit for possession of the suit land by pre-emption. It was stated that the land has in fact been sold for Rs.
2,00,000/-. They claimed to be no sharer in the suit land as well as adjacent land and sharer in amenities. It was further stated in para 6 of the plaint that no notice was served and the sale was kept secret. However, when the plaintiffs came to know about the sale, they stated before the respectables of-the village that they will purchase the suit land and then made a demand from the vendees as well as the vendor that they are in dire need of the land and they have superior right of pre-emption. And that the land be transferred to them, However, this was rejected. The suit is filed by way of Talb- e-Khasoomat whereas notice has also been served before filing of the suit.
The vendees filed within Statement on 6.6.1992. They objected to the valuation 'of the suit for the purposes of Court-fee and jurisdiction; that the plaintiffs were estopped from filing the suit; they denied the allegation of Zarar and receipt of any notice. According to them they spent Rs.
1,00,000/- on the improvement of the land. The suit was stated to be barred by time. They insisted that they paid Rs.' 6,00,000/-. In this Written statement no objection was taken that the talabs have not been performed. The following issues were framed on the same date:-
(1) Whether the plaintiffs have got superior right of pre-emption?
(2) Whether the plaintiffs have fulfilled requirements of talabs as envisaged in Punjab Pre-emption Act, 1991?
(3) Whether the ostensible sale price of Rs. 6,00, 000/- was bona fide fixed and actually paid by the defendants? '
(4) If issue No. 3 is not proved then what was the market value of the suit land at the time of sale?
(5) Whether the defendants have made improvements over the suit land worth Rs. 100,000/-. If so to what effect?
(6) Whether the plaintiffs have waived their superior right of pre-emption by their act and conduct to file the present suit?
(7) Whether the suit is bad due to Partial preemption?
(7-A) Whether the present law of pre-emption does, not apply to the present suit. If so, its effect?.
(7-B) Whether the suit is time-barred?
(7-C) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction?
(7-D) Whether the plaintiffs are estopped by their words and conduct to bring the present suit?
(7-E) Whether the plaintiffs have no cause of action and locus standi to bring the present suit?
(7-F) Whether the Plaintiffs have no loss due to the impugned sale?
(7-G) Whether the suit property has not been correctly described in the plaint?
(8) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 23.11.1995. The suit was Dismissed. I may note here that under issue No. 1 it was found that the plaintiffs are co-sharers whereas the vendees are not. Under issues Nos. 3 and 4 it was found that the land has actually, been sold for Rs. 6,00,000/-. Issues No. 6 was answered against the vendees while issues Nos. 5, 7, 7-A to 7-G were not pressed. Under issue No. 2 it was found that talabs have not been performed in accordance with Punjab Pre-emption Act, 1991. I may further note here that under this issue learned Trial Court primarily was impressed by the fact that date, time and place of making of talabs is not mentioned in the plaint. First appeal was filed by all the three plaints. It was heard by a learned A.D.J., Chiniot. He expressed opinion that the minor appellant namely Humera daughter of Ahmad Sher, PW-1 but not on behalf of the other plaintiffs. Similar was his observation in the matter of Talab-e-Ishhad. Notice served jointly upon eight vendees without signatures of any of the plaintiffs was found to be invalid. The appeal was dismissed on 9.12.2003.
2. Learned counsel for the petitioners contends that both the Courts below have lost sight of the- fact that the sale as well as the suit was instituted in the year 1989 i.e. Before promulgation of first Punjab Pre-emption Ordinance on 28.3.1990. According to him the plaintiffs were entitled to the benefit of Section 35 of the Punjab Pre-emption Act, 1991 or the corresponding provisions in various Ordinances preceding it. There was no requirement of serving a notice. He further refers to the case of "Altaf Hussain vs. Abdul Hameed' (2000 SCM R 314) and Haji Noor Ahmad v. Abdul Ghani and two others" (2000 SCM R 329) to urge that the said judgment rendered by a larger bench of the Hon'ble Supreme Court of Pakistan lay down that the mentioning of time date and place is not necessary.
He has further stated that Mst, Sahib Bibi respondent No. 8 has left the field and has not challenged the impugned judgment and decree while he has instructions to withdraw this appeal and the suit bn behalf of Tasleem Bibi, wife of Ahmad Sher which leaves only Humera Fatima in field. According to him it is permissible and cites the case of Mehr Allah Ditta and others v. Muhammad AH and others (PLD '1972 SC 59) His contention is that so far as Mst Humera is concerned, it is the finding recorded by learned A.D.J. Himself that talabs were made validly on her behalf by her father and guardian. He accepts the sale price. Mr. Muhammad Ilysa Khan, Advocate, learned counsel lor the respondents, on the other hand, relies on the case titled "Muhammad Siddique v, Muhammad Sharif (PLJ 2006 SC 409) to urge that notwithstanding the fact that the suit was filed during the interregnum, the pre-emptor was required to prove "Talab-e- Muwathibat" as well as "Talab-e- Ishhad" strict in accordance with Islamic Law which has not been done in the present case. He further contends that in absence of particulars in the plaint, the evidence led by the minor appellant and relied upon by the learned A.D.J. Could not have been produced and looked into. He also prays that the sale price be enhanced in case a decree is to be passed in favour of the minor appellant.
3. I have gone through the records with the assistance of the learned counsel for the parties. Before I proceed further I do accept the said prayer of the learned counsel for the appellant for deleting the name of the appellant No. 1 as it is permissible as field by the Hon'ble Supreme Court of Pakistan in the said case of Mehr Allah Ditta and others. There is no manner of doubt in my mind that the sale took place and the suit itself was filed during the interregnum i.e. 1.8.1996 and 28.3.1990. This suit is, therefore squarely covered by Section 35 of Punjab Preemption Act, 1991 and corresponding provisions present in various Ordinances issued by the Governor of the Punjab from time to time starting from Ordinance No. 18 of 1990 and ending with Ordinance No. 9 of 1991 repealed by Section 37 of the Punjab Pre-emption Act, 1991. I may further note here a very important and significant aspect of the case. The respondents had raised on objection that the suit could not proceed having been filed during the interregnum. The matter was heard by learned Trial Court and vide order 2.6.1992 it was held that the suit is covered by Section 35 of the said Act and shall proceed accordingly. This inter-parties order was never challenged. However, at the time of decision of the suit as well as of appeal, the learned Courts below have failed to take note of the said significant circumstances. By that as it may, in this case the said minor plaintiff has made "Talab-e-Muwathibat"'and Talab-e-Ishhad" in presence of two witnesses. Ahmad Sher who is next friend of the said minor, appeared as PW-1 while witnesses of "Talab-e-Ishhad" are Khan Muhammad PW-2 and Muhammad Siddique PW-3. This evidence was discarded by the learned Trial Court only for the reason that date, time and place of making first "Talab" have not been mentioned in the plaint. Learned A.D.J. In his judgment dated 9.12.2003 has also, reiterated and affirmed the said objection of the learned Trial Court but has held-that Ahmad Sher being father and guardian of Mst. Humera. Plaintiff was competent to make demand on her behalf but was not so competent to make a demand on behalf of other plaintiffs being not previously authorized. He has, therefore, held that "Talab-e- Muwathibat" was validly made on behalf of Mst. Humera, plaintiff. The evidence of "Talab-e-Ishhad" has also , been dealt with accordingly. However, it Was insisted that proper notice had not been issued.
4. Under Section 35 of Punjab Pre-emption Act, 1991, the suit having been filed and pending during the said interregnum said Mst. Humera was required to prove only "Talab-e-Ishhad" in presence of two truthful witnesses. Learned Courts below have not found that said PWs-2 and 3 to be truthful and on my part I have examined their statements. These witnesses do appear to be truthful. She being admittedly a co-sharer in the property upon fulfilment of said requirement of law and in fact having also made a valid "Talab-e-Muwathibat" as well was entitled to the relief.
5. Coming to" the said contention of Mr. Muhammad Ilysa Khan. Advocate, learned counsel for. The respondents, I have examined the said judgment in the case of Muhammad Siddique. Being .Relied upon by him. I may note here that in the first instance, the said suit was neither filed nor was pending during the interregnum. It was filed on 16.5.1990 and the polea was that knowledge had been acquired in the month of May, 1990 It was thus filed after 28.3.1990. Be that as it may, their lordships examined the evidence and agreed with: this Court that there is no evidence of valid "Talab-e-Muwathibat and "Talab-e-Ishhad" on the record.
6. Insistence of the learned counsel for the respondent that in absence of particulars of date, time and place of first talab, the evidence led by Mst. Humera, appellant cannot be read, is rather misplaced. Under Constitution of the Country the judgments deciding a point of law or public importance by the Hon'ble Supreme Court of Pakistan Are binding on all the Courts of the country including this Court. However, rules have been laid down by the Hon'ble Supreme Court itself in this behalf and command is that where a Judge is confronted with several judgments of the Hon'ble Supreme Court of Pakistan deciding the same question then the judgments rendered by larger Bench are to be followed. The said two judgments in the cases of Altaf and Haji Noor Muhammad being relied upon by Sh. Naveed Shehryar; Advocate, learned counsel for the appellant were rendered by a Bench comprising five Hon'ble Judges each. It has been laid down that plaintiff could not be non-suited on the* ground that date, time and place when and where the plaintiff learnt .About the sale transaction, were not specifically pleaded in the plaint and the contention to the contrary were repelled. I, therefore, do held that the learned Courts below have acted against law while discarding the said evidence in the matter of "Talab-e-Muwathibat" as also "Talab-e- Ishhad" on the ground of absence of particulars in the plaint.
7. This leaves the said prayer of the learned counsel for the respondent for enhancement of sale price. The plea of the petitioner was that the land was sold for Rs. 200000/-. They have placed on record two mutations whereby the price of the land comes to about Rs. 1000/-. Per kanal. Be that as it may, the learned Courts below have found the ostensible price was actually paid and the learned counsel for the appellant has accepted the said finding today.
8. For all that has been discussed above, this R.S.A. Is allowed. Both the impugned judgments and decrees are set aside. Name of the appellant No. 1 shall be deleted. The suit filed by Mst. Humera daughter of Ahmad Sher, Appellant is decreed subject to deposit of Rs. 600000/- in the Trial Court on or before 3.1,3.2007. Any amount already deposited by way of 1/5 shall stand adjusted. In case the said appellant fails to deposit the said amount on or before the said date, her suit shall stand dismissed with costs. At the moment, the parties are left to bear their own costs. The records be remitted back immediately "by the office.