' IQBAL HAMEED-UR-REHMAN, J.---Through this revision petition, the petitioner prays that the impugned judgment and decree dated 27-1-2010 passed by the learned Additional District Judge, Tandlianwala may be set aside and the judgment and decree dated 25-5-2009 passed by the learned Civil Judge Ist Class, Tandlianwala, may be upheld and the suit of the respondent/plaintiff may be dismissed with cost.
2. Brief facts giving rise to the instant civil revision are that the petitioner Muhammad Zahid purchased land measuring 127 Kanals 12 Marlas on 12-3-1995 in consideration of Rs,17,18,500 from Ghulam Murtaza etc, situated at Chak No . 405/G. B . , Tehsil Tandlianwala, District Faisalabad and paid Rs,10,000 in cash and remaining amount of Rs,17,08,500 through cheques No, 03278811, dated 13-3-1995 to Ghulam Murtaza etc. Vendors. On 13-7-1995, Dr. Muhammad Ali respondent filed a suit for possession through pre-emption against the petitioner on the ground that he has a superior right of pre-emption than the petitioner over the disputed land. The petitioner filed written statement, stating that the respondent has no superior right of pre-emption and he filed the said suit with mala fide intention and for ulterior motives. Even issues were framed. After recording evidence of both the parties and hearing the arguments of learned counsel for the parties, the learnedl. Civil Judge, Tandlianwala, dismissed the suit of the respondent/plaintiff vide judgment dated 25-5-2009. Being aggrieved with the said judgment, the respondent filed an appeal, which was accepted by the learned Additional District Judge, Tandlianwala, vide judgment dated 27-1- 2010. Against the said judgment, the petitioner has filed this civil revision.
3. It is contended by learned counsel for the petitioner that the suit of the respondent had been filed on 12-7-1995, as such, the same had been filed after lapse of a period of more than four months and the same is barred by time as per section 30 of the Punjab Pre-emption Act, 1991. It is further contended that Talb-e-Muwathibat was made before father-in-law and brother-in-law of the respondent on 8-6-1995 who are interested witnesses, as such, the same was fictitious and even the informer is a close relative. It is further contended that notice of Talb-e-Ishhad has been issued to the petitioner when he was out of the country. It is further contended that as per section 13(3) of the Punjab Pre-emption Act, 1991, Talb-e-Ishhad has not been made within the stipulated period of 14 days, as is apparent from the respondent's own stance that Talb-e-Muwathibat has been made on 8-6-1995 while the notice was sent on 25-6-1995 as per the date on the envelope i.e, Talb-e-Ishhad has been made after lapse of 17 days. It is further contended that the learned appellate Court while passing the impugned judgment and decree has totally ignored the factual position and circumstances of the case because consideration was Rs,17,18,500 which is specifically mentioned in the Roznamcha Waqiatti No, 277, dated 12-3-1995 as well as in mutation and cheque dated 13-3-1995 is also on record and the same was not Rs,12,00,000 as mentioned in the plaint of the respondent/plaintiff and this averment of the respondent was not proved during the trial and this shows that the respondent has not approached this Court with clean hands. It is further contended that the respondent has no superior right of pre-emption as he filed the suit with mala fide intention and for ulterior motive, in fact the respondent had already waived his right of pre-emption as the whole transaction was completed in his presence. It is further contended that there are serious contradictions in the statements of the P.Ws., as such, the impugned judgment of the learned appellate Court is the result of misreading and non-reading of evidence and it is well settled law that each and every benefit goes in favour of the vendee not pre-emptor. It is further contended that since the respondent failed to prove Talb-e-Muwathibat as well B as other Talabs as mentioned in section 13 of the Punjab Pre-emption Act, 1991, therefore, the impugned judgment and decree dated dated 27-1-2010 is based on surmises and conjectures and the same is liable to be set aside. It is further contended that the respondent concealed the admitted facts that soon after purchasing the land, the petitioner by spending Rs,3,00,000 improved the land and further constructed Pakka Rooms etc and misguided the Courts below intentionally and deliberately, hence the impugned judgment and decree dated 27-1-2010 is not sustainable in the eyes of law. In support of his contentions, learned counsel for the petitioner has placed reliance upon Khizar Hayat v. Ghulam Shabbir (2006 MLD 1201), Altaf Hussain v. Ali Muhammad through L.Rs,(2006 CLC 799), Sajid Muhammad Shah v. Ghulam Hussain (1993 CLC 105), Muhammad Siddique v. Muhammad Sharif and others (2006 AC 234), Muhammad Saleem and another v. Muhammad Ramzan (2005 YLR 3017), Mumtaz Hussain and another v. Muhammad Achar and 2 others (1991 CLC 209), Abdul Ghani v. Muhammad Latif (PLD 2000 Lahore 428), Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others (PLD 2007 SC 302), Wilayat Khan v. Muhammad Sharif through Mst. Irshad Bibi and others (2004 CLC 240), Ali Muhammad v. Ghulam Muhammad (2003 CLC 282), Rai Walayat Khan v. Muhammad Aslam (2002 CLC 714), Faiz Ahmad and 7 others v. Ghulam Haider and 2 others (2007 YLR 1694), Muhammad Sadiq v. Muhammad Shafi (2007 MLD 460), Malik Nazir Ahmad through his legal heirs v. Muhammad Yar (2004 SCMR 1377), Muhammad Ishaque and 6 others v. Suleman (2007 MLD 752), Syed Ghulam Mustafa Shah and another v. Syed Muhammad Hussain Shah and 2 others (PLD 1993 Karachi 369) and Muhammad Hussain v. Manzoor Hussain and others (2004 SCMR 737).
4. On the other hand, learned counsel for the respondent, while supporting the impugned judgment, has stated that mutation No,882 with respect to the property in dispute was attested on 14-3-1995 and the respondent/plaintiff had knowledge of the attestation of mutation on 8-6-1995 because he was present at his house due to holiday of 9th Moharram ul Haram and thereafter, he filed suit for possession through pre-emption against the petitioner on 12-7-1995 and as such, the suit was not barred by time in view of clause (b) of section 30 of the Punjab Preemption Act, 1991 and even the learned trial Court had rightly decided issue No,6 against the petitioner/defendant and the suit was dismissed only on the ground of Talbe-Muwathibat. It is further contended that for the first time the factum of sale in dispute came into the knowledge of the respondent/plaintiff on 8-6-1995, whereupon he immediately announced that he would exercise his right of pre-emption and secure land through suit for preemption and P. Ws 2,3 & 4 also supported the version of the respondent/plaintiff and thereafter, on 18-6-1995 he sent a registered notice along with acknowledgement due and completed Talbe-Ishhad and the said registered notice was posted through a registered post No,91, which was received back unserved and in support of his version, the respondent/ plaintiff produced Fateh Muhammad (P.W.6), who also supported the version of the respondent/plaintiff, stating that he had received registered post No, 91 on 19-6-1995 and the said registered post was in the name of the petitioner/defendant and in spite of various messages, no one had come to him on behalf of the petitioner/defendant, therefore, he himself had gone to the house of the petitioner/defendant but he was told that the petitioner/defendant had gone out of country and thereafter the notice was dispatched on the address of the petitioner/defendant mentioned in the transaction of sale and the same was proved to be dispatched through the documentary evidence and he same has not been rebutted through any cogent evidence and the petitioner/defendant had raised no objection when the notice was exhibited. It is further contended that the learned appellate Court was right in not agreeing with the finding of the learned trial Court that the respondent/plaintiff could not announce immediately his first jumping demand as the respondent/plaintiff on having knowledge of the sale of the suit-land has been expressing sorrow and grief as to why the vendors have sold away the said land and thereafter proclaimed that he shall preempt it, as he has superior right of preemption qua vendees and mere uttering word sorrow and proclaiming intention of enforcement of his superior right of preemption does not amount to non-compliance of the provisions of law and had rightly held that the respondent/plaintiff had fulfilled the requirements of Talb-eMuwathibat and Talb-e-Ishhad in accordance with law and in this respect, the learned appellate Court had relied upon a judgment of this Court in case titled Muhammad Din v. Faqeer Hussain etc. Passed in R.S.A. No, 58 of 1997, in which the appeal of the appellant was accepted and it was held that the evidence led by the respondent/plaintiff does not in any way convey any other meaning except that he pronounced his intention to pre-empt the sale immediately in the same meeting. It is further contended that the learned trial Court as well as the learned appellate Court have rightly decided issue No,3 in favour of the respondent/plaintiff, holding that the properties of both the parties are adjacent to each other and that transactions in favour of the petitioner/defendant are subsequent in time and on the basis of those subsequent transfers in his favour, the petitioner/ defendant cannot claim the superior right of pre-emption as Shafi-e-Khalit and Shafi-eJar. It is further contended that the learned Additional District Judge rightly accepted the appeal of the respondent/plaintiff and decreed his suit. In support of his contentions, the learned counsel has placed reliance upon Din Muhammad v. Abrar Hussain and another (PLD 2009 SC 93), Pervaiz and another v. Muhammad Nawaz (2006 SCMR 4), Muhammad Ali and another v. Allah Bakhsh and 5 others (2004 CLC 1949), Rabnawaz v. Anwar Ali and 4 others (PLD 2004 Lah.784), Zafar Ali v. Zainul Abidin and another (1992 SCMR 1886), Muhammad Siddique and others v. Sajawal Khan and another (2001 SCMR 302), Umar Khan v. Abdul Ghaffar (2003 CLC 838) and Mst.Farzana Bibi v. Manzoor Elahi and 4 others (2006 CLC 1669).
5. I have heard learned counsel for the parties and have also perused the impugned judgment of the learned appellate Court as well as the judgment of the learned trial Court and also other material made available on the file and the authorities cited by learned counsel for the parties.
6. Mutation No,882 with respect to the property in dispute was attested on 14-3-1995 and the respondent/plaintiff had knowledge of the attestation of mutation on 8-6-1995 and thereafter, he filed suit for possession through pre-emption against the petitioner on 12-7-1995 and as such, the suit was within time in view of clause (b) of section 30 of the Punjab Pre-emption Act, 1991 and the learned Courts below had rightly decided issue No,6 against the petitioner/defendant.
7. The respondent/plaintiff stated in his statement that for the first time the factum of sale in dispute came into his knowledge on 8-6-1995 by Muhammad Siddique (P.W.4), whereupon he immediately announced in presence of Abdul Razzaq (P.W.3), Javed Razzaq and Khushi Muhammad that he would exercise his right of pre-emption and secure land through suit for pre- emption and P. Ws. 3 and 4 also supported the version of the respondent/plaintiff and the learned appellate Court was right in disagreeing with the finding of the learned trial Court that the respondent/plaintiff could not announce immediately his first jumping, demand as the respondent/plaintiff on having knowledge of the sale of the suit-land has been expressing sorrow and grief as to why the vendors have sold away the said land and thereafter proclaimed that he shall pre-empt it, as he has superior right of pre-emption qua vendees' and mere uttering word sorrow and proclaiming intention of enforcement of his superior right of preemption does not amount to non-compliance of the provisions of law and had rightly held that the respondent/plaintiff had fulfilled the requirements of Talb-eMuwathibat in accordance with law and in this respect, the learned appellate Court had relied upon a judgment of this Court in case, titled Muhammad Din v. Faqeer Hussain etc. Passed in R.S.A. No,58 of 1997, in which the appeal of the appellant was accepted and it was held that the evidence led by the respondent/plaintiff does not in any way convey any other meaning except that he pronounced his intention to preempt the sale immediately in the same meeting.
8. The respondent/plaintiff stated in his statement that he sent a registered notice along with acknowledgement due on 18-6-1995 on the address of the petitioner/ defendant mentioned in the transaction of sale and made Talb-e-Ishhad and Abdul Razzaq (P.W.3) and Muhammad Siddique (P.W.4) also signed the same and the said witness also supported the version of the respondent/plaintiff. The respondent/ plaintiff also stated in his statement that the registered notice was posted through a registered post No, 91, which was received back unserved and in support of his version, the respondent/ plaintiff produced Fateh Muhammad (P.W.6), who also supported the version of the respondent/plaintiff, stating that he had received registered post No,91 on 19-6-1995 and the said registered post was in the name of the petitioner/defendant and in spite of various messages, no one had come to him on behalf of the petitioner/ defendant, therefore, he himself had gone to the house of the petitioner/defendant but he was told that the petitioner/defendant had gone out of country. Under section 13 of the Punjab Pre-emption Act, 1991, the respondent/ plaintiff/pre-emptor was only required to prove performance of Talb-eIshhad and if at all notice was not served as claimed by the petitioner/defendant, that E would not vanish right of the respondent/ plaintiff and even performance of Talb-eIshhad under Islamic Law in presence of two truthful witnesses was a condition precedent for maintaining a suit for pre emption but proof of dispatch was sufficient. The notice was attested by two truthful witnesses, Muhammad Siddique (P.W.4) and Abdul Razzaq (P.W.3), who had admitted this fact in their statements. Delivery of the said notice was neither a requirement of section 13 of the Punjab Pre-emption Act, 1991 nor that of Islamic Law and in this respect, reliance is placed upon Khushiu Muhammad v. Mhammad Yousaf (2008 YLR 362). In this view of the matter, the learned Additional District F Judge, while reversing the findings of the learned trial Court on issue No,2, had rightly observed that the respondent/ plaintiff has clearly fulfilled the requirements of Talb-e-Muwathibat and Talb-e-Ishhad in accordance with law.
9. So far as issue No,3 is concerned, the respondent/plaintiff in his plaint claimed his superior right of pre-emption being Shafi-e-Kalit and Shafi-e-Jar as his owned property is adjacent to the property in dispute and in support of his version, the respondent/plaintiff produced Shahadat Ali Patwari (P.W.1), who produced Ax-Shajhra Exh.P1 and site plan Exh.P2 and the said documents support the version of the respondent/plaintiff that the properties of both the parties are adjacent to each other. The sale in dispute was effected by way of mutation No,882 dated 14-3-1995 and Exh.D.2. Shows that transaction of sale in favour of the petitioner/defendant and mutation was effected on 7-10-1996, so it appears that the petitioner/defendant became owner in the Deh after the sale in IG dispute and the learned trial Court held that since the transactions in favour of the petitioner/defendant are subsequent in time, therefore, on the basis of these subsequent transfer in his favour, he cannot claim the superior right of pre-emption as Shafi-eKhalit and Shafi-e-Jar.
The learned Additional District Judge rightly upheld the findings of the learned trial Court on the said issue and decided the same in favour of the respondent/plaintiff and against the petitioner/defendant.
10. In view of the above facts and circumstances, I am of the considered view that the learned Additional District Judge has rightly passed the impugned judgment dated 27-1-2010 while accepting the appeal H and decreeing the suit of the respondent/ plaintiff and I find no illegality or infirmity in the said judgment. Resultantly, this application for bail before arrest and same revision petition is dismissed.