ORDER JUDGMENT MAULVI ANWARUL HAQ, J. -'This judgment shall decide Civil Revision No. 477/05 and Civil Revision No. 809/05 as these proceed against a common judgment.
2. Vide registered sale-deed dated 18.8.1998 the petitioners (Israr Ahmad, etc.) purchased the suit land for a consideration of Rs. 5,40,000/-. On 31.10.1998 the respondents filed a suit for possession of the said land by pre-emption. According to them, the land has been actually sold for Rs. 1,50,000/-.
They claimed to be Shafi Sharif, Khalit and Jar Performance of talbs was pleaded, The suit was contested by the petitioners. They specifically pleaded that the talbs have not been made that three of the vendees were abroad and were never contacted nor served with any notice. The other allegations were denied. The learned Trial Court framed the following issues:-
(1) Whether plaintiffs have not complied with Talabs according to law? OPD
(2) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD.
(3) What was the market value of. The suit property?-OP. Parties.
(4)Whether the plaintiffs have got superior fight of pre-emption? OPP.
(5) Relief.
Evidence of the parties was recorded. Vide judgment and decree dated 20.5.2004 the suit was dismissed. I may note here that under issue No. 1 it was found that the talbs have not been performed. Issue No. 2 was stated to have not been proved. Issue No. 3 was answered in favour of the plaintiff's although the issue as discussed shows otherwise. Under Issue No. 4, it was observed that superior right stands extinguished because of non-performance of talbs. A first appeal filed by the respondents was heard by a learned A.D.J., Rawalpindi. Vide judgment and decree dated 23.4.2005 the learned A.D.J. Allowed the appeal and decreed the suit subject to deposit of Rs.
5,40,000/-. According to him, all the requisite talbs have been duly performed and the respondents had a superior right of preemption.
3. Mr. Muhammad Ilyas" Sheikh, Advocate learned counsel for the petitioners-vendees contends that production of the alleged informer i.e.- Tractor Driver was necessary. He relies on the case of Muhammad Zafarullah Khan v. Hassan Muhammad, etc. (NLR 2004 Civil 333). Further argues that it is established on record that the notices never reached the petitioners who were, admittedly, abroad at the relevant time and at least to the extent of one vendee even the envelope was returned back undelivered. He cites the cases of Abdul Qayyum v. Muhammad Rafique (2001 SCM R 1651) and Ikram-ud-Din and others v. Ghulam Ahmed Khan and others (1995 M LD 1689) to urge that in the said circumstances it cannot at all be assumed that Talb-i- Ishhad has been made Mr. Muhammad Younis Bhatti, Advocate learned counsel for the respondents, on the other hand contends that since the witnesses of the Majlis were examined, there was no heed to produce the informer. Relies on the case of Sikandar Khan and 6 others v, Muhammad Nawaz and 2 others (PLJ 2004 Lahore 1509). Further argues that since the postal receipts evidence the posting of the notices to the vendees have been produced, it shall be assumed that these reached the vendees. Syed Aftab Ahmad, Advocate/learned counsel for the pre- emptors/petitioners in Civil Revision No. 809/05 argues that the learned Trial Court had answered issue No. 3 in favour of the pre-emptors but the learned A.D.J. Without examining the said findings has directed deposit of Rs. 5,40,000/-. Mr. Muhammad Ilyas Sheikh, Advocate, opposes the said contention with reference to the entire contents of the discussion recorded under issue No. 2 and he urges that, in fact, the finding was that the market value is not less than the price paid for the land under the registered document.
4. I have gone through the copies of the records, appended with both these civil ^revisions. It will be seen that the primary contest is on the point of talb covered by issue No. 1. In para-4 of the plaint, it was stated that on 24.9.1998 at 7.00 a.m. One Muhammad Zahoor told that some unknown Tractor Driver attempted to plough the land. Muhammad Zahoor informed the petitioners. They alongwith Manzoor Hussain went to the suit land and inquired from the Tractor Driver as to why he wants to plough the land. The Driver disclosed that the land has been purchased by the respondents vide registered document whereupon the respondents made the first talb. Out of the two petitioners, Mumraiz Khan appeared as PW-3.. He is also attorney and uncle of Imran Sabir respondent No. 2.
Unlike the pleading in the plaint that when the driver declared that the land has been purchased by the petitioners by a sale-deed registered on 18.9.1998, they immediately made the first talb, the PW-3 states that they confronted the Tractor Driver. He told them that Raja Afzal had left him there and he has purchased the land whereupon the witness called upon the Tractor Driver to show some evidence and the Tractor Driver handed over copy of the registered sale-deed to PW-3. This was read by both the petitioners and he came to know that the land has been purchased by the sons of Raja Afzal and his brother-in- law whereupon the witness told his father that thb land had been sold one month ago and he will file a pre-emption suit and Imran Sabir also made The Talb.
Manzoor Hussain who is the father of respondent No. 1 and uncle of respondent No. 2 is PW-1. He states that when the Tractor Driver handed over the sale-deed and Mumraiz read, he told Imran Sabir that he will file a pre-emption suit Muhammad Zahoor DW-2 has a different story to tell.
According to him, after going through the copy of the sale-deed, both the respondents consulted Manzoor (PW.l) and then Mumraiz made the talb and Imran followed.
5. Having, thus, examined the evidence as to Talb-i-Muwathibat. I do find that although it would not be necessary to produce the Tractor Driver as the proceedings took place in presence of witnesses who were produced but the respondents themselves have walked out from their, pleadings in the plaint and both the other witnesses have made discrepant statements which do not tend to corroborate the basic statement made in the plaint.
6. So far as Talb-i-Ishhad is concerned, it has been stated in para-5 of the plaint that the respondents went to Ch. Tariq Mahmood Babar, Advocate and got a notice drafted. They brought the notice to the village and signed it and also got it signed by the witnesses and they sent the notices to all the four vendees on 25.9.1998 under registered cover A.D. It was dated that the notices were served upon the petitioners Nos. 1 to 3 and A.Ds. Came back while the notice sent to petitioner No. 4 was received back undelivered. PW-6 is Raja Muhammad Rasalat Postmaster. According to him, he was Postman in September, 1998 and took the envelope Ex. P.4 with A.D. Receipt Ex. P.l 1 but it was returned that the addressee is abroad and he sent it back undelivered. Muhammad Afzal appeared as DW-2. He is the special attorney of the petitioners. According to him, out of the vendees three are his sons who were in Germany and the 4th is his son-in-law who is in Italy.
Murpraiz respondent is his sister's son and was fully aware of theri address in Germany, ft was' confronted with the A.D. Receipts with the . Suggest on that he had signed the same and received the notices and he denied. The petitioner No, 1 as PW-3 has admitted that no notices were sent to the vendees at their foreign addresses, It has also been admitted that the sons of Muhammad Afzal did not use to reside with him. In these circumstances glaring on the face of the record, the learned A.D.J. Has failed to read the evidence on record while reversing the findings of the learned Trial Court with reference to the Talb-i-Ishhad. The judgment in the case of Abdul Qayyum fully supports the Trial Court verdict in the matter.
7. The findings of the learned A-D.J. On the issue pertaining to talbs are accordingly set aside and those recorded by the learned Trial Court are restored.
8. So far as Civil Revision No. 809/05 is concerned, as noted by me above, the learned Trial Court has discussed under issue No. 3 pertaining to the price/marked value in para-15 of its judgment.
After referring to the statement of the Patwari PW-5, the learned Trial Court has observed that the suit land is nearer to the road and Abadi area and its market value is more Than Rs. 1,00,000/- per kanal. The last line of para-15 apparently is a clerical error whereby it has been observed that the same is decided in favour of the plaintiff. -Be that as it may, I have examined the statement of the Patwari PW-5 as also the evidence led by the respondent.
Muhammad Ramzan is the vendor. He has appeared as DW-1 and has stated that he received Rs.
5,40,000/- as price. The transaction had been effected by- means of a registered document.
Coming back to the statement of the Patwari, he has admitted that the suit-land is located near a road and is in Abadi area and as such its value is more than the average recorded by him. He has stated that market value of some land in the village is Rs.
1,00,000/- per kanal whereas in some area it is Rs. 10,000/- per kanal. Thus, in view of the admitted location of the land and going by the statement of the said Patwari and the other evidence available on record, it can be concluded that the price recorded in the registered sale-deed Ex.P.14 had in fact, been paid.
8. As a result of the above discussion, Constitutional Petition No., 477/05 is Allowed while Civil Revision No. 809/05 is dismissed. The result would be that the judgment and decree dated 23.4.2005 of learned A.D.J., Rawalpindi, shall stand set aside and the one passed by the learned Trial Court on 20.5.2004 dismissing the suit of the respondents shall stand restored. No orders as to costs.