' SAIYED SAEED ASHHAD, J.--- Appellant being aggrieved with the judgment of Lahore High Court, dated 2nd November, 1999 in Civil Revision No,1226 of 1998 filed a petition for leave to appeal. Leave to appeal was granted to consider the following question:--- "Whether in view of the findings'of the Courts as to equal rights of the parties qua the suit-land, the civil suit of the respondent could be decreed against the petitioner for whole of the suit property?"
2. Brief facts of the case are that respondent had purchased 10 Kanals, 1 Marla of land situated in Kharian District Gujrat (hereinafter referred to as the "demised land") from one Subedar Major Ghulam Ali. On 1-3-1993 in consideration of Rs,1,00,000. It was the case of the appellant that she learnt about sale on 3-5-1993 and she immediately made Talb-e-Muwathibat; whereafter notice by way of Talb-e-Ishhad was dispatched on 4-5-1993 which was duly supported by witnesses P.W.5 Ghazanfar Ali and P.W, 6 Zahoor Ahmad. On 10-5-1993 appellant filed suit for possession of demised land by way of pre-emption. In the written statement filed by appellant, the averments made in the plaint were controverted and it was stated that the respondent did not have any right of pre-emption in respect of the demised land.
3. On the basis of pleadings of the parties, trial Court framed the following issues:-- "(1) Whether the plaintiff is estopped by her conduct to file this suit?
(2) Whether the plaintiff made necessary legal Talbs? OPP
(3) Whether the suit had not been properly valued for the purpose of court-fee and jurisdiction? If yes, then what is the correct valuation for both the purposes? OPD
(4) Whether the suit property has not been properly detailed in the plaint? If yes, then what is the correct description? OPD
(5) Whether the ostensible sale price of Rs,1,00,000 was fixed in good faith or actually paid? OPD
(6) If answer to the above issue is in affirmative then what is the market value of the suit property?
OPP
(7) Whether the plaintiff has got superior right of pre-emption qua the vender/defendant? OPP
(8) Relief."
4. Trial Court on the Thasis of the evidence produced before it by the above parties dismissed the suit vide judgment and decree, dated 28-5-1997. The respondent feeling aggrieved and dissatisfied with the judgment and decree of the trial Court filed an appeal which was dismissed by learned Additional District Judge, Kharian vide judgment and decree, dated 19-3-1998. The respondent again feeling aggrieved and dissatisfied with the judgment of the Appellate Court assailed the same before Lahore High Court by way of revision petition which has been accepted by means of impugned judgment, dated 2-11-1999 as stated above.
5. We have heard the arguments of Mr. Hasnat Ahmad Khan, Advocate Supreme Court appearing on behalf of the appellant and Mr. Mahmood-ul-Islam appearing on behalf of the respondent and have perused the material on record.
6. One of the factors which prevailed upon the trial Court and the Appellate Court in dismissing the suit of the respondent was her failure/avoidance to mention the name of the person from whom she had received information about the sale as well as the place, date and time of receiving the above information either in the notice issued by way of Talb-i-Ishhad or in the plaint filed by her.
7. Mr. Hasnat Ahmad Khan, Advocate Supreme Court appearing on behalf of the appellant submitted that mentioning the name of the informer, the date, time and the place where such information was received or conveyed to the pre-emptor was necessary requirement of law for establishing making of Talb-i-Muwathibat and in their absence the pre-emptor could not succeed in establishing making of Talb-eMuwathibat in accord with law. It was further submitted by him that mentioning of exact date and time of receiving information of sale was also necessary as period of limitation for making Talb-e-Ishhad and filing the suit is to be computed from the date of Talb-e-Muwathibat. He further submitted that the omission to mention the date and time of information of sale of the property as well as failure to disclose the name of the informer would be fatal to the suit of the respondent, thus, the trial and Appellate Courts were justified, in dismissing the suit but the High Court erred in setting aside the judgments and decrees of both the Courts below and decreeing the suit of the respondent. In support of his above contentions he placed reliance on the cases of (i) Sardar All and others v. Additional Secretary Home and T.A. Department and others 1996 SCM R 1480, (ii) Khairullah v. Sultan Muhammad and another 1997 SCM R 906, (iii)
Haji Qadir Gul v. Moembar Khan and another 1998 SCM R 2102, (iv) Haji Muhammad Saleem v.
Khuda Bakhsh PLD 2003 SC 315, (v) Akbar Ali Khan v. Mukamil Shah and others 2005 SCM R 431, (vi)
Muhammad Siddique v. Muhammad Shard and others 2005 SCM R 1231 and (vii) Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977.
8. Mr. Mehmoodul Islam, Advocate-on-Record appearing on behalf of the respondent controverted the arguments advanced by Mr. Hasnat Ahmad Khan and supported the judgment of the High Court. He submitted that it was not imperative for the pre-emptor to disclose the date and time of receiving the information of sale of the property either in the notice issued for Talb-i-Ishhad or in the plaint and the requirement of law of pre-emption relating to the disclosure of date, time and place of receiving the information would be sufficiently complied with by mentioning the date and time in the plaint. He further submitted that on account of omission or failure of respondent to mention the name of the informer and date and time of receiving the information of sale would not be fatal to the suit of the respondent and the trial Court as well as Appellate Court committed serious illegality in dismissing the suit of the respondent which illegality was rectified by the High Court in exercise of its revisional jurisdiction by setting aside the judgments and decrees of the trial and Appellate Courts and decreeing the suit of the respondent. In support of his above contentions he placed reliance on the cases of (i). Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCM R 315, (ii) Abdul Malik v. Muhammad Latif 1999 SCM R 717, (iii) Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCM R 958, (iv) Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs 2000 SCM R 314, (v) Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 and (vi) Azmatullah through L.Rs, v. Mst. Hameeda Bibi and others 2005 SCM R 1201.
9. We have considered the arguments of the learned counsel for the parties and have perused the relevant provisions of the Punjab Preemption Act, 1991 and the case-law relied upon by the learned counsel for the parties in support of their respective contentions.
10. This Court while examining the provisions of the Punjab Preemption Act in a large number of cases relating to making of Talb-eMuwathibat had examined in great depth the question whether disclosure by the pre-emptor of the name, date, time and place of receiving information of sale was to be mentioned in the notice issued for Talb-eIshhad and the pleadings and the judgment in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 is very significant as in deciding the case this Court had minutely examined the contrary judgments of this Court and had advanced very plausible and cogent grounds for taking a different view. It will be useful to reproduce the relevant portions as under:--- ' Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the way right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as a mere technicality at times. It acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of preemption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality, this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i-Muwathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre- emptors in the country were non-suited because of non-assertion and performance of Talb- iMuwathibat though not required by the then prevailing preemption laws in the country. What we want to emphasise is the Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of preemption.
' In case of Amir Jan (supra) that Court had, no doubt, suggested that the pleadings should be construed liberally and performance of Talb-i-Muwathibat should not be rejected merely because the details thereof had not been furnished in the plaint yet it is apparent that the Court was not properly assisted to answer the point that the details of Talb-i-Muwathibat were important with reference to time and place because therefrom the limitation for Talb-i-Ishhad is calculated. It is but obvious and apparent that all the three kinds of Talbs, one way or the other, are related to some phenomenon of limitation.
' It is a settled law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same.
In our view, it is important to tell the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-i- Muwathibat in the same meeting and before the dispersal thereof.
' The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The case of preemption should not be an exception to the general law and the day and time of performance of Talb-i- Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb-i-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-i-Ishhad is calculated. This aspect has never been argued in any case before this Court when the view happens to be expressed to the contrary. Conceding, of course, that the material constituting evidence may or may not be mentioned in the pleadings.
' A similar question had arisen before this Court in case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed 2000 SCM R 314, where it was held that a plaintiff could not be non-suited on the ground that day, time and place when and where the plaintiff learnt about the sale transaction were not specifically pleaded in the plaint. We have gone carefully through the above ruling and have observed that the question of limitation concerning Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusumat were never argued before the Court as discussed by us in the instant judgment.
Had the factum of limitation concerning these Talbs been argued before this Court in case of Altaf Hussain (supra), the decision would certainly have been altogether different."
11. The above judgment in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 was followed by a three members Bench of this Court in the case of Muhammad Siddique v.
Muhammad Sharif and others 2005 SCM R 1231 wherein it was held that a general statement of facts in the plaint relative to the knowledge of transaction of sale was not sufficient compliance of the statutory provisions observing that Talb-i-Muwathibat being the first and immediate demand by the preemptor to make a proclamation and pronouncement of exercise of his right of pre- emption was required to be made according to law. This Court in making pronouncements in the afore-cited judgments had differed with the contrary view expressed by this Court in a large number of cases which have already been referred to hereinabove including the two cases of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal heirs 2000 SCM R 314 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCM R 329 which were decided by Benches of five Judges. In both these cases it was held that it was not necessary for the pre-emptor to mention all the material facts relating to the date, time and place as well as the names of the persons in whose presence such information was received and Talb-i-Muwathibat was made and omission or failure of the pre-emptor to disclose the above fact, he could not be non-suited. It was submitted by Mr. Mehmoodul Islam that the aforesaid judgments being of Larger Benches were entitled to be given preference and would prevail upon all the judgments wherein a contrary view had been taken by this Court as all such judgments had been delivered by smaller Benches. There is no dispute relative to the principle that in cases of contrary pronouncements/observations of this A Court on a certain issue, the judgment of Larger Bench is to be preferred and followed.
However, question to be determined is whether the Larger Bench of this Court while expressing the view that it was not a mandatory requirement of law to specifically state or mention the date, time and place as well as the names of the persons present when the preemptor had received the information of sale of the property in question and made proclamation and intention to purchase the said property had failed to take into consideration the very material fact that the period of limitation for sending notice of Talb-e-Ishhad and filing of suit would be governed from the date of disclosure of the information and declaration of the intention to purchase the property in question which had to take place in one meeting/Majlis. A perusal of the two judgments of the Larger Benches reveals that this question was neither raised nor was considered. In the circumstances it can be said as observed by this Court in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Akbar Ali Khan v. Mukamil Shah and others 2005 SCM R 431 that had the question of limitation being raised and brought to the notice of two larger Benches and the Court had been properly assisted to answer the question of mentioning of details of the date, time and place of receipt of the information of sale and making of Talb-e-Muwathibat the decision of the two larger Benches would have been different. It would also be useful to reproduce relevant portion from the judgment of this Court in the case of Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 as under:--- "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 Talb-e-Muwathibat and Talb-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. Talb-e-Muwathibat is the first Talb for exercise of right of pre-emption and without performance of Talb-e-Muwathibat, the performance of Talb-e-Ishhad is meaningless to maintain the suit. The second Talb is Talb-e-Ishhad which is based on the performance of Talb-eMuwathibat and a pre-emptor who has not been able to prove performance of Talb-e-Muwathibat, cannot succeed in the suit merely on the basis of proving Talb-e-Ishhad and the settled law is 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 Talb-e-Muwathibat in the notice of Talb-e-Ishhad on the basis of information conveyed to him by (P.W.6) without disclosing the place and the date on which he on coming to know about the sale made Talb-e-Muwathibat. The sale took place on 29-1-1990 and notice of Talb-e-Ishhad was given on 15-8-1990 wherein the making of Talb-e-Muwathibat was claimed a week before the issue of notice of Talb-e-Ishhad, therefore, the sole question for determination would be whether requirement of Talb-eMuwathibat without giving the date, time and place in the plaint along with the names of persons who were present in the Majlis in which the announcement was made for filing the suit for preemption was fulfilled. The disclosure of the fact relating to the performance of Talbs is pure question of fact and in the plaint it would be sufficient to disclose the performance of both Talb-eMuwathibat and Talb-e-Ishhad to exercise the right of preemption and determination of the ancillary question for the purpose of establishing such right but the performance of Talbs must be proved through the reliable evidence. This Court in Noor Muhammad v. Abdul Ghani 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 Talb-e-Muwathibat was made, was not necessary requirement of law to establish performance of Talb-eMuwathibat whereas in a subsequent case Muhammad Saleem v. 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 Talb-e-Muwathibat was performed specifying the date and time in the pleadings for the reasons that time for performing Talb-e-Ishhad was to be counted from the date of Talb-e-Muwathibat. In another judgment of this Court Muhammad Siddique v.
Muhammad Sharif 2005 SCM R 1231, it was reiterated that if the proof regarding date, time and place of making Talb-e-Muwathibat and acquiring knowledge by- the plaintiff about the transaction of sale is given in general terms, performance of Talb-e-Muwathibat and Talb-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 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 v. Abdul Ghani 2000 SCM R 329 the plaintiff pleaded performance of Talb-e-Muwathibat in the plaint without giving time and place of making this Talb and in the subsequent judgment, Talb-eMuwathibat was also pleaded in general terms, therefore, it was observed that without proving Talb-e-Muwathibat which was foundation of the case of pre- emptor right of pre-emption could not be exercised. It is the requirement of law to make Talb- eIshhad within two weeks from the date of making Talb-eMuwathibat and if making of Talb-e- Muwathibat is not satisfactorily proved the making of Talb-e-Ishhad 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 Talb-e- Muwathibat is made immediately after the sale and Talb-e-Ishhad is made within two weeks from the date of sale. In such a case, only reference to Talb-e-Muwathibat in the notice of Talb-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 Talb-e-Muwathibat in general terms without specifying date and other necessary particular Talb-e-Muwathibat, this basic condition for exercising the right of pre-emption would remain unproved. In such situation, it would be essential for the preemptor to prove the correct date of knowledge and the place of meeting in which he announced for the exercise of right of preemption. The performance of Talb- e-Ishhad is the second Talb, the fulfilment of which depends upon the presence of Talb- eMuwathibat and unless the date and place of making Talb-eMuwathibat is specifically mentioned in the plaint or proved through the evidence, the performance of Talb-e-Ishhad cannot be claimed to have been proved in terms of section 13(3) of the (ibid) Act."
In the case in hand the respondent made a general statement that on having acquired knowledge of sale of the demised land he expressed his intention to pre-empt the suit-land in presence of two truthful witnesses on 4-5-1993. Admittedly, the sale of the demised land was made on 1-3-1993. It was, therefore, necessary for the respondent to have mentioned the date, time and place of receiving information of the sale of the demised land in the notice sent by him by way of Talb-i- Ishhad as well as in the plaint but such course was not adopted by him. The date, time and place as well as presence of two witnesses were not mentioned in the plaint. In the facts and circumstances of this case it was imperative for the respondent to have mentioned the date, time and place as well as names of the persons in whose presence he had received the information of sale of the demised land as well as having proclaimed his intention and desire to exercise his right of pre-emption in respect of the demised land. The questions whether the notice was issued within the statutory period of 14 days from the date of receiving information of sale and making of Talb-i- Muwathibat and whether the suit was filed within the period of 120 days from the date of information of Talb-i-Muwathibat could not be properly adjudicated in the absence or omission to mention the date and time of information of sale and such omission relative to date, time and place as well as the names of the witnesses in the notice of Talb-i-Ishhad and plaint would be fatal to the suit of the respondent.
12. Vide order, dated 4-3-2003 leave to appeal was granted to consider whether in view of the findings of the Courts as to equal rights of the parties qua the suit-land, the civil suit of the respondent could be decreed against the petitioner for whole of the suit property. It appears that at the time when the arguments were advanced for the grant of leave to appeal Mr. Hasnat Ahmad Khan had not raised the above issues questions. However, in view of the use of the Words "inter alia" in the leave granting order, this Court would not be precluded or estopped from considering the above issues/questions. After examining the above questions exhaustively in the light of the pronouncements of this Court both in support and against the issues/questions involved which would be sufficient to come to just, proper and valid decision it is not considered necessary to deal with the question on which the leave was granted. For the above course, it will be appropriate to refer to the case of Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCM R 2001.
13. For the foregoing facts, reasons and discussion it is held that High Court had erred in setting aside the concurrent findings of two Courts below. Thus, this appeal is found to merit consideration.
Accordingly, it is allowed and the judgment of Lahore High Court, dated 2-11-1999 is set aside and the judgment and decree of learned Civil Judge, Kharian is restored. Parties are left to bear their own costs.