By means of this revision brought under Section 115, C.P.C., the judgment & decree dated 17.07.2003 of the learned Additional District Judge, Kharian have been brought under impeachment.
2. The facts in brief are that the petitioner filed a suit for possession through pre-emption of the land measuring 60-kanals 19- marlas, fully described in the plaint. It was averred that the vendor sold land to the respondent through registered deed Bearing No, 618 dated 26.06.1997 for consideration of Rs, 11,73,000/- but with a view to defeat the perspective pre-emption suit, fictitious amount of Rs, 22,50,000/- has been shown in the sale deed. Petitioner claimed that he had a superior right of pre-emption. In Para No, 3 of the plaint, it was explained that he got knowledge through Nadir Khan son of Bilal Khan on 23.08.1997 at about 9.00 a.m. who disclosed the factum of sale and, at the same time, without losing a moment even, made Talb-i-Muwathibat (jumping demand) and then the remaining formalities were completed; where after the other Talbs were performed in a mode prescribed by law. In the written statement, the averments of the plaint were emphatically denied. In the preliminary objection it was claimed that the suit was time barred and that the petitioner-suitor was estopped by his own conduct and performance. On facts & merits, it was claimed that the notice of Talb-i-Ishhad was not given and it was not received by the respondent-vendee and the requisite performance of Talbs are nonexistent. Divergent pleadings of the parties give rise to the following issues:-- "1. Whether the plaintiff has got superior right to pre-empt the suit land? OPP
2. Whether the plaintiff has performed Talbs in accordance with law? OPP
3. Whether ostensible sale price of Rs, 22,50,000/- was fixed and paid in good faith as consideration of the suit land? OPD
4. What is market value of the suit land? OPPs
5. Whether the defendant is entitled to get incidental charges in case the suit is decreed? If so to what extent? OPD
6. Whether the plaintiff has got no cause of action and locus-standi to bring this suit? OPD
7. Whether the plaintiff is estopped by his word and conduct to institute this suit? OPD
8. Whether the suit does not lie? OPD
9. Whether the suit is time barred? OPD
10. Whether the plaintiff has not deposited Zar-i-Some as ordered by the Court: If o, its effect? OPD
11. Whether the suit is not properly valued for the purpose of Court fee? OPD
12. Whether the plaintiff has waived his right of pre-emption? OPD
13. Whether the suit is false, based on mala fide and the defendant is entitled to get special costs?
OPD
14. Relief.
Issues No, 1 & 2 are the core issues in the whole case. Onus of these two issues was proposed upon the plaintiff. While returning finding on Issue No, 2, the learned trial Judge came to the conclusion that the necessary Talbs have been performed in accordance with law and nothing has been brought out on record by the defendant to reach at a conclusion that there was coa..e lacuna or error in completing the said formalities necessary to be done by law. Issue No, 1 in respect of superior right was also answered in favour of the petitioner by having held that according to the Jamabandi for 1993-94 (Exh. P-3), the suitor is Shareek Khata. Issues No, 3 and 6 to 13 were also answered against the defendant. Onus of Issue No, 4 was proposed upon both parties and it was held that the market price has been correctly shown as Rs, 22,50,000/- in the sale deed. On Issue No, 5, it was held that the vendee is entitled to receive apart form the amount shown in the deed, the necessary expenses incurred by the vendee and he is also entitled to receive an amount of Rs, 20,02,500/- from the petitioner. In nutshell, the suit was decreed subject to deposit of Rs, 22,50,000/- and the incidental charges as determined under Issue No,
5. An appeal was taken against the said judgment & decree by the vendee, which was accepted by the learned Additional District Judge, vide his judgment & decree dated 17.07.2003.
3. Learned counsel for the petitioner states that the learned Additional District Judge while passing the impugned judgment & decree based his decision on extraneous considerations and the conclusion drawn by him is running counter to the evidence available on the record. Further argued that Talb-i-Ishhad and all the necessary Talbs were performed in accordance with law but the learned Additional District Judge while passing the impugned judgment & decree altogether set-up a new case to the advantage of the vendee-respondent which even otherwise is not available on the record.
4. Conversely, the learned counsel for the respondent argued that the impugned judgment & decree passed by the learned Additional District Judge is rich in detail and came out with the plea that the Talbi-Ishhad was not performed according to the requirements and standard fixed in Section 13(1)(b) of the Punjab Pre-emption Act, 1991.
5. I have given conscious thought to the arguments made by learned counsel for the parties and with their able assistance have gone through the record available before me.
6. The learned Additional District Judge while reversing decree of the trial Court, focused his decision on the point that the sale deed was made through a registered instrument and the witnesses admitted that all the villagers knew the registration of the sale-deed. It was emphasized that since all villagers knew with regard to the date of sale-deed, the necessary presumption would be that the petitioner had a notice of the sale transaction on 26.07.1993 but he sent a notice on 26.08.1997. The stance taken by the suitor that he gained knowledge on 23.08.1997 was held to be incorrect. Concluding Paragraph 10 of the judgment of the learned Additional District Judge is relevant which is reproduced:-- "It is an admitted fact that the sale made through a registered sale-deed and the P.W-3, P.W-4 and P.W-5, all have admitted that all the villagers knew at the time of registration of the sale-deed that the property had been sold out means that at the time of registered sale-deed i,e, 26.7.1997, all the villagers knew that the property had been "sold and the plaintiff respondent sent a notice on 26.8.1997 whereas he had said that he came to have the knowledge of the sale-deed on 23.8.1997 which fact is not supported by his own evidence if all the villagers knew that the property had been sold through registered sale-deed at the time of registration of the sale-deed i.e on 26.6.1997 then it is not possible considering our set 'up of villages' life style that plaintiff/respondent could not had got the knowledge of the sale-deed."
7. From the bare perusal of the whole judgment passed by the learned Additional District Judge, one thing is pertinent that the main reason which weighed with him in passing the said judgment was that Photo-stat copy of the notice has been brought on the record which was not believed to be correct and it was held that it may not be the same notice, which the suitor-pre emptor sent to the vendee. There is no denying of the fact that the postal receipt is available on the record and clerk of the postal Department to prove the execution of the receipt appeared in the witness box as PW-1 Photo copy of the notice sent to the respondent the witnesses of which have been produced in evidence, could not be said to be a copy other than the one dispatched to the addressee. On the face of this situation that when the receipt of the postal Department which was proved to be unambiguous evidence of PW-1, a strong presumption arises that the notice must have been received by the addressee and if some one has not received the notice and the same was returned in original for any reason, the petitioner-, suitor cannot be blamed. This question came- up for consideration in Hameedullah Khan and others vs. Mst. Zeenat Khatoon. (2008 SCM R 1444) where in the apex Court concluded the issue by having held that photo copy of the notice brought on the record was sufficient evidence to determine that Talb-i-Ishhad has been performed and the photo copy can be accepted as a valid truth. The relevant portion of the judgment reads: We have heard learned counsel for the petitioners and have also gone through the impugned judgment as well as the case law being relied upon by the learned 'counsel. It is to be noted that as far as P.W.1 Zeenat Khatoon is concerned, she has tendered copy of notice which was in her possession, after sending the original to the petitioners, therefore, in our opinion, the Court was legally right to accept its Photo-stat copy and on this score, no point is made. out for grant of leave to appeal. The judgment being relied upon by the learned counsel is distinguishable, in view of the facts and circumstances of instant case."
Ghulam Abbas and another vs. Manzoor Ahmad and another (2008 SCM R 1366). and Khuda Bakhsh vs. Muhammad Yaqoob etc. (1981 SCM R 179) are also quoted with advantage.
8. Learned Additional District Judge in my considered view has altogether set-up a new case to the advantage of respondent-vendee which otherwise is not spelled out from the record. The evidence on the point of Talb-i-Muwathibat is consistent and there is no discrepancy in it. The presumption drawn by the learned Additional District Judge that since other people of village had got knowledge, it does not mean that the petitioner had also knowledge of the sale. Knowledge of other persons cannot be presumed to be a knowledge of the suitor. This is for the first time, a new interpretation of Section 13(1) of the Punjab Pre-emption Act has been brought on the record. The impugned judgment and decree in any case is not sustainable at law.
9. For what has been stated above, the revision petition is accepted with costs and the impugned judgment & decree dated 17.07.2003 passed by the learned Additional District Judge are set-aside with costs and that of the learned trial Court dated 29.11.2002 are restored.