ZAFAR IQBAL CHAUDHRY, J. - This revision petition is directed against the judgment and decree dated 10.7.2004 passed by the learned Additional District Judge, Narowal whereby the dismissed the appeal filed by Syed Waqar Hussain Shah petitioner-plaintiff and also the judgment and decree dated 12.4.2004 rendered by the learned Civil Judge 2nd Class, Narowal through which the suit filed by the petitioner for possession, through preemption was dismissed.
2. Compendiously and tersely put, the facts forming part of this petition are that the petitioner instituted suit against Muhammad Younis respondent seeking decree for possession of land through pre-emption. As per plaint Muhammad Ismail son of Ali Hussain Shah was originally owner of land measuring 5-kanal 19-M part of 78 kanal Khatta No. 45, Khatooni Nos. 118 to 124 situated in Mauza Ali Pur Syedan Tehsil and District Narowal, who sold the suit property measuring 1 kanal to the respondent vide Mutation of Sale No. 374 attested on 25.8.2000 for a consideration of Rs.
11,000/- without any information or knowledge to the petitioner. The petitioner further asserted that he was cosharer in the disputed Khatta with common easement rights and was also contiguous owner of the suit property, therefore, he had superior right of pre-emption. On 10.11.2000 at about 4.00 p.m. At the tubewell of Mumtaz Ali Shah, he came to know about the sale of suit property and after having knowledge of sale, he immediately announced his intention to pre-empt the suit property in the presence of Faruq Badshah, Abdul Majeed and Allah Ditta in the same meeting. On 14.11.2000 the petitioner also sent a notice of Talb-i-Ishhad to the respondent through registered envelope acknowledgement attested by witnesses and the same was duly received by the respondent. It has been further asserted by the petitioner that Mutation No. 374 was effected without information or knowledge to the general public and no proclamation or any affixation was made. According to the petitioner after fulfilling the requisite talbs and having superior right of pre- emption qua the respondent, he asked the respondent to alienate the suit property to him after receiving sale price of Rs. 11,000/- but the refused1 which constrained the petitioner to bring the instant suit.
3. The respondent contested the suit by filing written statement inter alia on the ground that the petitioner had no superior right of the pre-emption and the petitioner did not perform the requisite talabs according to law.
4. On 18.4.2001, out of the divergent pleadings of the parties the following issues were framed:-
(1) Whether the plaintiff has not come to the Court with clean hands? OPD.
(2) Whether the plaintiff was waived his right of pre-emption in view of preliminary objection No. 2?
OPD.
(3) Whether the plaintiff has performed three requisite demands of pre-emption under law? OPP.
(4) Whether the plaintiff has a superior right of preemption qua the defendant? OPP.
(5) Whether the plaintiff is entitled for the decree of possession through pre-emption as prayed for? OPP.
(6) Relief."
5. Both the parties produced their evidence in support of their respective claims and after hearing the learned counsel for the parties, the learned Trial Judge dismissed the Suit of the petitioner vide his judgment and decree dated 12.4.2004. Not contended with the above judgment and decree of the Trial Court, Syed Waqaf Hussain Shah petitioner preferred an appeal before the learned Additional District Judge, Narowal who also dismissed through judgment and decree dated 10.7.2004.
6. Learned counsel for the petitioner contends that the learned Trial Court as well as the first Appellate Court have erred in stressing upon the statement of PW.3 Mumtaz Ali Shah wherein he has mistakenly stated that he informed the plaintiff about sale of the suit property on 10.8.2000, which is obvious as the sale itself had taken place on 25.8.2000 and due to such a mistake the suit could not be defeated. It is also contended that the instant case has been dealt with on sheer technicalities without any reasonable cause and justification; that both the Courts below have not properly appreciated the evidence on record as a whole but decided the case relying on pieces of evidence by pick and choose, which manner and course is prohibited under the law as per verdict of the apex Court; that evidence in the case was perused and evaluated in a pattern which is usually done in criminal cases; that there is great distinction of appreciation of evidence between the criminal and the civil case; that the Courts below dismissed the suit of the petitioner on the ground of non-description of Talb-i-Muwathibat and Talib-i-Ishhad; that the petitioner has established his right of pre-emption, cause of action and has complied with all the formalities required under Section 13 of the Punjab Pre-emption Act, 1991, through tangible evidence and sold material on record. Last but the least the findings and conclusions recorded by the Courts below are perverse, unfounded and not in accordance with established law, facts and record.
7. Opposing the contentions of the learned counsel for the petitioner, the learned counsel for the respondent submitted that there is concurrent finding of fact by the Court below and this Court in exercise of its revisional jurisdiction cannot interface with the same unless material irregularity or violation of any question of law is pointed out or jurisdictional error committed on the part of the subordinate Courts, which is lacking in this case and the findings of the Courts below being based on the evidence and relevant material on the record do not warrant any interference by this Court.
Concluding his arguments he has pinpointed the discrepancies in the evidence of the petitioner that PW.2 Syed Waqar Hussain Shah petitioner had deposed that he came to know about the sale of the disputed property on 10.11.2000 through Mumtaz Ali Shah PW.3 at his tubewell at about 4.00 p.m. In presence of PW.4 Faruq Badshah and Allah Ditta. The petitioner has further deposed that he made jumping demand of his right of preemption in the same sitting. In the cross-examination PW-2 Waqar Hussain Shah petitioner admitted that PW-3 Mumtaz Ali Shah was also resident of his village and they had own mutual meetings whereas PW.3 Mumtaz Ali Shah stated that the disputed sale took place on 25.8.2000 and he had told the petitioner about the sale of the disputed property on 10.8.2000, hence statements of PW.2 and PW.3 are contradictory with each other and such material contradictions are sufficient to conclude that the evidence of the petitioner is based on false deposition.
8. I have heard the arguments of the learned counsel for the parties and also gone through the judgments and decrees passed by both the Courts below as well as the evidence attached with this file.
9. Both the learned Court below have already decided issues Nos. 1 and 4 against the respondent- defendant and in favour of the petitioner-plaintiff while declaring that the latter had a superior right of pre-emption. The petitioner's suit was defeated mainly on the reason that the failed to perform Talb-i-Muwathibat and Talb-i-Ishhad and that it is always presumed that whenever sale is made in general meeting and mutation is sanctioned by public servant, it is in the knowledge of the public. To appreciate the arguments of the learned counsel for the parties it will be useful to make a reference to Section 13 of the Punjab Preemption Act, 1991 in ex tenso:- "13. Demand of pre-emption - (1) The right of preemption of a person shall be extinguished unless such person makes demands of preemption in the following orders, namely:-
(a) 'Talb-i-Muwathibat';
(b) 'Talb-i-Ishhad'; and
(c) 'Talb-i-Khusumat'.
Explanation: (I) 'Talb-i-Muwathibat' means immediate demand by a pre-emptor in the sitting of meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of preemption.
Note: Any words indicative of intention to exercise the right of pre-emption are sufficient.
(II) 'Talb-i-Ishhad' means demand by establishing evidence.
(III) 'Talb-i-Kushumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of1 a pre-emptor through any source, he shall make Talb-i-Muwathibat.
(3) Where a pre-emptor has made Talb-i- Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2), and Talb-i-Ishhad under subsection (3) he shall make Talb-i-Khussumat in the Court of competent jurisdiction to enforce his right of pre-emption."
10. Both the Courts below while declaring that the petitioner failed to prove Talb-i-Muwathibat' have mainly taken into consideration the contradiction in the testimony of petitioner (PW.2) and Mumtaz AN Shah (PW.3) to the effect that Syed Waqar Hussain Shah petitioner (PW.2) deposed that he came to know about the sale of the disputed property on 10.11.2000 through Mumtaz Ali Shah (PW.3) at his tubewell at about 4.00 p.m. In the presence of PW.4 Faruq Badshah and Allah Ditta.
The petitioner further deposed that the made jumping demand of his right of pre-emption in the same sitting. On the other hand. PW.3 Mumtaz Ali Shah stated that the disputed sale took place on 25.8.2000 and he had told the petitioner about the sale of the disputed property on 10.8.2000. I am in agreement with the learned counsel for the petitioner that it was due to inadvertence or slip of tongue that PW.3 had given the date as 10.8.2000, which was even earlier than the date 25.10.2000 when the mutation was sanctioned. It is clarified from the later part of deposition of PW.3 wherein it is stated that he had told the plaintiff-petitioner about sale of suit property after I.A months and from the said statement it can be inferred that he had actually told the plaintiff about the sale on 10.11.2000 as claimed by the petitioner-plaintiff. PW.4 Faruq Badshah also supported the version of the petitioner-plaintiff that on 10.11.2000 at about 4.00 p.m. In their presence Mumtaz Ali Shah had informed the petitioner about the sale of the disputed property. After the perusal of the evidence of PW.2, PW.3 and PW.4 as a whole, the mentioning of date by PW.3 as 10.8.2000 can be termed as slip tongue and the same could not be made basis for outright rejection of the claim of the petitioner.
As such the petitioner fully proved Talb-i- Muwathibat. So far as Talb-i-Ishhad is concerned, the learned Courts below merely while taking into consideration the contradiction about the number of notices in the statements of PWs held that the petitioner failed to perform Talb-i-Ishhad properly.
On the other hand the petitioner has placed on record copy of the notice dated 14.11.2000 on the record as Ex. P-2. It finds mention the names of Mumtaz Ali Shah, Faruq Badshah, Abdul Majeed and Allah Ditta as witnesses. As per receipt Ex. P.1 it was posted on 15.11.2000. The respondent while appearing in the witness- box also admitted that he had received notice of Talb-i- Ishhad through post. As such it stood proved on the record that the said Talab was performed properly. As regards Talb- i-Khasumat, the Courts below have already admitted the same. Hence issue No. 3 is answered in affirmative.
11. The learned Trial Court was wrongly answered issue No. 2 in affirmative as although no hard and fast rule can be laid down as to what constitutes waiver by conduct in relation to pre-emptiable sale and consequently every case has to be decided in the light of its peculiar facts. The test to the applied is that "the pre-emptor must have a fair opportunity of purchasing the property'. If the answer is in the affirmative, the pre-emptor must fail but if it is in the negative he must obviously succeed. The right of preemption is not lost if the person who is a pre-emptor had lost his right to pre-empt merely because he had not made the demands at the proper time and although the right to pre- empt gives no vested interest in the property but is merely a right of acquiring the property of which a pre-emptor might avail himself or not, as he pleased. Until an offer is made to a person entitled to pre-empt and he refuses to buy, the right of pre-emption continues to exist so long as the enforcement of its is not barred by limitation. The respondent failed to. Bring any evidence to prove this issue and the learned Trial Court merely on technicalities decided this issue in favour of the respondent, which finding is reversed and this issue is answered in the negative.
12. In the wake of the above discussion and legal and factual scrutiny I am constrained to observe that the judgments and decrees passed by the Courts are not maintainable due to non-reading and misreading of evidence and misinterpretation of the relevant provisions of Punjab Pre- emption Act, 1991. Hence this civil revision is accepted, the judgments and decrees of both the Courts below are set aside and a decree for possession through pre-emption in respect of the suit property is granted in favour of the petitioner. However, in view of the peculiar facts and circumstances of the case the parties are left to bear their own costs.