' CH. NAEEM MASOOD, J.---This revision petition is directed against the judgment and decree, dated 28-4-1998 passed by the learned Civil Judge, Alipur, and concurred by the learned Additional District Judge, Alipur, District Muzaffargarh, vide his judgment and decree, dated 13-6-2000.
2. The facts, given in chronological order, are that the respondents/ plaintiffs filed Suit No,263 on 21- 7-1994 for possession through preemption of the land in dispute against the petitioners, The sale in heading of the plaint was stated to be through Mutation No,353 entered on 28-5-1994 and the statements, dated 31-5-1994. The sale price shown in the mutation was also submitted to be incorrect. It was further asserted that the sellers and purchasers had not issued any notice under the Pre-emption Act to the respondents/plaintiffs. The superiority of the right of pre-emption was also claimed. It was further asserted in para.5 of the plaint that at the time of mutation the Revenue Officer had not completed the proclamations, therefore, immediately after getting knowledge of sanction of mutation, the respondents/plaintiffs completed the conditionality's of Talb-i- Muwathibat and Talb-i-Ishhad and in the presence of the witnesses, proclaimed the right of pre- emption and likewise Talb-i-Isshad was completed as required. It was further asserted in para.6 that although the purchasers/defendants were intimated through Talb-i-Muwathibat and Talb-i- Isshad but they refused to transfer the land about 15 days before. It was further submitted in para.7 that the mutation had been entered and the statements had been recorded but the revenue officer had not sanctioned the mutation by then and when the mutation will be sanctioned, the plaint shall be amended accordingly. In para. 8, it is submitted that the cause of action had accrued in favour of the respondents/plaintiffs from the date of entering of the mutation.
Subsequently, after sanction of the Mutation No, 353 on 18-8-1995, an amended plaint was also submitted. The petitioners replied the unlamented suit as also the amended one and denied the assertions made in the plaint. On the pleadings of the parties, the following issues were framed:--
(i) Whether the plaintiffs have superior right of pre-emption qua the defendants? OPP
(ii) Whether the plaintiffs have fulfilled the legal requirements of Talbs as laid down in the Punjab Pre-emption Act, 1991? OPP
(iii) Whether the property in dispute was actually disposed of for a consideration of Rs,50,000 but to avoid the pre-emptive right of the plaintiffs a fictitious amount of Rs,1,00,000 was fixed? OPP
(iv) If the above issue No,3 is not proved, then what is the market value of actual sale price of the suit land ? OP Parties.
(v) Whether the plaintiffs are entitled to a decree of possession through pre-emption? OPP
(vi) Whether the plaintiffs are estopped by their words and conduct to file this suit? OPD
(vii) Whether the suit of the plaintiffs is premature and the same is liable to be dismissed? OPD
(viii) Whether the suit of the plaintiffs has not been properly valued for the purpose of court-fee and jurisdiction? If so, what is the correct valuation? OPD.
(ix) Relief.
3. Both the parties led their respective evidence. The plaintiffs/ respondents produced Hote Khan P.W.1 and Bashir Ahmed Khan P.W.2 to support their version. The plaintiffs/respondents also produced documentary evidence regarding the property and the notices and the receipts of the notices issued to the petitioners as Exhs.P/1 to P/14, whereas, the petitioners/defendants have examined Qambar Khan D. W.1 and Nazar Hussain one of the defendants as D.W.2.
4. The learned trial Court vide its judgment and decree, dated 28-4-1998, decreed the suit. Appeal filed against the said order was dismissed vide judgment and decree, dated 13-6-2000, passed by the learned Additional District Judge, Alipur, District Muzaffargrah.
5. The learned counsel of the petitioners contends that Talb-iMuwathibat and Talb-i-Isshad have not been completed in accordance with law and the law laid down by the Hon'ble apex Court. The lack of particularity of date, time and place is seriously objected to by the learned counsel of the petitioneRs,
6. The learned counsel of the respondents/plaintiffs on the order hand, while supporting the impugned judgments and decree, has vehemently contended that through both, in the plaint and evidence, the Talbs were completed in accordance with law.
7. I have heard the learned counsel of the parties and have perused the record.
8. The completion of the requirement of the Talbs, being sheet anchor of offence for the petitioners and defence for the respondents/ plaintiffs, is the moot point in the present case. It merits to be dilated upon fully for the appreciation of the entire case.
The bare reading of the plaint and the evidence produced by the respondents/plaintiffs, the irresistible conclusion is that the respondent/ plaintiffs miserably failed to establish the completion of Talb-iMuwathibat and Talb-i-Isshad in accordance with the law laid down by the Hon'ble Supreme Court. It has repeatedly been held by the Hon'ble apex Court that the date, time and place are to be set down in particularity in the plaint as well as the evidence, the lack of which has been considered fatal to the pre-emption suit. In the present case, the A learned counsel of the respondents/plaintiffs has not been able to demonstrate regarding the particularity of date, time and place of the Talbs. What has been said in the pleadings and evidence is an evasive assertion, which can be considered as concocted story about the completion of Talbs. The Hon'ble apex Court in various judgments has narrowed down the compass, in particularity, about the completion of Talbs. The pleadings and evidence of the respondents is not at all in consonance with the dictum laid down by the Hon'ble apex Court.
9. I am fortified in my view by confining myself to the judgment of the Hon'ble apex Court reported as 2007 SCM R 1 (Fazal Din through L.Rs, v. Muhammad Anayat through L.Rs,). I consider it essential to reproduce the operative part of the judgment of the cited case, so as to clarify the entire law of Talbs, in a pre-emption suit. In the above case, their lordships have observed as follows:--
(4) It may be noted that the judgments which have been relied upon by the learned counsel were considered and with due respect a distinction was pointed out by this Court in the case of Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315 observing that on this aspect of the case the Court was not duly assisted. Relevant paras from the judgment of Haji Muhammad Saleem (ibid) are reproduced here in below:- "(12) Moreover, the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the supdrior right of pre-emption. The law as well as the fact is that the very 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 was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i- Muwathibat or Talb-iIsshad. It was on the basis of much 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-i-Muwathibat thought not required by the then prevailing pre-emption laws in the country. What we want to emphasise is that Talb-iMuwathibat 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.
(13) In case of Amir Jan (supra) this 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.
(14) According to section 13, Explanation I of N.-W.F.P. Preemption Act, 1987, Talb-i-Muwathibat means "immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise the right of pre-emption" the words "immediate demand" put a limitation on the prospective pre-emptor that he must express his intention immediately. This has also been interpreted as jumping demand but the immediacy can well be gathered from Hedaya (The Hedaya 1975 Edition, Chapter-II, page 550) which provides. "If the man claims his Shuffa in the presence of the company amongst who he may be sitting when he receives the intelligence, he is the "Shafee" his right not being invalidated unless he delays asserting it till after the company have broken up."
(15) This is a clear indication of compulsion on the prospective preemptor that he has to make Talb-i-Muwathibat in between the period or his having- received the information in the Majlis and the dispersal of the Majlis. Beyond such limitation, the Talb if exercised would be invalid. The second step is that of Talb-iIshhad which has to be completed within 15 days after the performance of Talb-i-Muwathibat. A pre-emptor can be non-suited for non-performance of Talb-i-Ishhad as well and the performance of the latter is to be linked with the performance of the former. The third one is Talb-i-Khasumat, which is the filing of a pre-emption suit and that too within a period of 120 days.
(16) It is a settled principle of 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.
(17) The date and time is imported 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 cases of preemption should not be an exception to the general law and day and time of performance of Talb-i- Muwathibat which 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 the second instance the limitation qua the performance Talb-iMuwathibat is appreciated and at the second instance of the limitation qua the performance of Talb-i-Ishhad is calculated. This aspect has never been argued in any case before this Court where 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.
(18) 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-iKhusumat 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.
(19) Consequent upon what has been discussed above the instant petition having been converted into appeal is hereby allowed, the judgment and decree, dated 11-10-1999 of Peshawar High Court is set aside and by restoring the concurrent finding of the Courts below.
(5) The above judgment has again been followed in the case of Akbar All (ibid). As far as the judgment in the case of Hayat Muhammad (ibid) relied upon by the learned counsel is concerned, I not helpful in view of the facts and circumstances of the case.
(6) These issues were also considered in details by this Court in Subedar Muhammad Nawaz v. Mst.
Firdous Begum Civil Appeal No,393 of 2003, decided on 2-2-2006, wherein a Division Bench of this Court had examined almost the entire case-law of this relating to the questions involved in this petition including the two judgments delivered by the five Members Bench and had concluded that it was necessary for the preemptor to mention the date time and place of receiving (information of sale of the property subject of pre-emption as well as the names of the two witnesses in whose presence the Talb-i-Muwathibat was made. It will be useful to reproduce the relevant portion from the judgment in the above civil appeal as under:--
(11) The above judgment in the case of Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 was followed by a three-member Bench of this Court in the case of Muhammad Siddique v.
Muhammad Sharif and others 2005 SCM R 1231 herein 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 pre-emptor 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 case 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-iMuwathibat was made and omission or failure of the pre-emptor to disclose the above facts, he could not be non-suited. Ft was submitted by Mr. Mehmood-ul-Islam that the aforesaid judgments being a 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 small Benches. There is no dispute relative to the principle that in cases of contrary pronouncements/observations of this 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 pre-emptor 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-i-Isshad 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 reveal 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-i-Muwathibat the decision of the two larger Benches would have been different.
(7) In the said appeal a certain portion of the judgment was also reproduced from the Fazal Subhan v. Saib Jamala PLD 2005 SC 927 and it will also be beneficial to reproduce the said paras.
From the judgment in the case of Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 as it is material and necessary for a correct decision of the questions/issues involved herein. The relevant portion is 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 on 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-i-Muwathibat and Talb-i-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-i-Muwathibat is the first Talb for exercise of right of pre-emption zt-d without performance of Talb-i-Muwathibat, cannot succeed in the suit merely on the basis of proving Talb-i-Ishhad and the settled law allowed to be proved evidence. In the present case, the preemptor in general terms claimed performance of Talb-iMuwathibat in the notice of Talb-i-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-i-Muwathibat.
The sale took place on 29-1-2-1990 and notice of Talb-i-Ishhad was given on 15-8-1990 wherein the making of Talb-i-Muwathibat was claimed a week before the issue of notice of Talb-i-Ishhad, therefore, the sole question for determination would be whether requirement of Talb-iMuwathibat 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-iMuwathibat and Talb- i-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-i-Muwathibat was made, was not necessary requirement of law to establish performance of Talb-iMuwathibat 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-i-Muwathibat was performed specifying the date and time in the pleadings for the reasons that time for performing Talb-i- Ishhad was to be counted from the date of Talb-i-Muwathibat. In another judgment of this Court Muhammad Siddique-7.-Muhammad Sharif 2005 SCM R 1231, it was reiterated -that if the proof regarding date, time and place of. Making Talb-i-Muwathibat and acquiring knowledge by the plaintiff about the transaction of sale is given in general terms, performance of Talb-i-Muwathibat and Talb-i-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-i-Muwathibat in the plaint without giving time and place of making this Talb and in the subsequent judgment, Talb-iMuwathibat was also pleaded in general terms therefore, it was observed that without proving Talb-i-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-iIshhad within two weeks from the date of making Talb- iMuwathibat and if making of Talb-i-Muwathibat is not satisfactorily proved the making of Talb-i- 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-i-Muwathibat is made immediately after the sale and Talb-i- Ishhad is made within two weeks from the date of sale. In such a case, only reference of Talb-i- Muwathibat in the notice of Talb-i-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-i-Muwathibat in general terms without specifying date and other necessary particulars Talb-i-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 a which he announced for the exercise of right of pre-emption. The performance of Talb-i-Ishhad is the second Talb, the fulfilment of which depends upon the presence of Talb-i-Muwathibat and unless the date and place of making Talb-i-Muwathibat is specifically mentioned in the plaint or proved through the evidence, the performance of Talb-i-Ishhad cannot be claimed to have been proved in terms of section 13(3) of the ibid Act."
10. The Hon'ble. Supreme Court, regarding the exercise of jurisdiction under section 115, C.P.C. Has observed that High Court while exercising its jurisdiction as conferred upon it under section 115, C.P.C. Can interfere when the concurrent findings of fact are based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts, patent errors of law, consideration of inadmissible evidence, excess or abuse of jurisdiction, arbitrary exercise of power and where unreasonable view has been taken, which is not in consonance with the evidence.
' This view is highlighted in 2004 SCM R 1001 (Ghulam Muhammad and 3 others v. Ghulam Ali) and 2004 SCM R 1668 (Habib Khan and others v. Mst. Bakhatmina and others).
' Similar is the view in the case reported as PLD 2007 SC 609 (Abdul Sattar v. Anwar Bibi and others), where the dictum laid down is As follows:-- "S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact by the Courts below--- Scope---Jurisdiction conferred upon High Court under section 115, C.P.C. Is not limited--- Concurrent findings of fact recorded by Courts below cannot be treated as sacrosanct and can be interfered within case of non-reading and misreading of evidences."
11. I find that the parameters given in the judgments delivered by the Hon'ble Supreme Court, which are binding under Article 189 and 190 of the Constitution, on all the executive and judicial authorities, have not been complied with in this case. This has clearly been laid down in 2007 SCM R 882 (Muhammad Shahban and others v. Falak Sher and others) and 2006 SCM R 489 (Abdul Waheed v. Mst. Ramzanu and others).
12. As a sequel thereof, the revision petition is accepted and the judgments and decrees, dated 28- 4-1998, passed by the learned Civil Judge, Alipur, and judgment and decree, dated 13-6-2000, passed by the learned Additional District Judge, Alipur District Muzaffargarh are set aside, leaving the parties to bear their own costs.