ORDER SAGHEER AHMED QADRI, J. - Mst. Fehmeeda Begum plaintiff-petitioner filed a suit for possession through pre-emption in respect of 5 Kanals of land, detail of which is given in the head-note of the plaint, mentioning the.
Facts that land in dispute initially was owned by Noor Khan son of Ghulam Rasool who vide Mutation No. 858, dated 30.11.1995 transferred the same in the name of Zafar Iqbal and Ghulam Shabhir in consideration of Rs. 1,70,000/- but in order to defeat the right of pre-emption of the petitioner- plaintiff fictitiously sale price was shown as Rs. 2,70,000/-; that the plaintiff-petitioner when on 28.2.1991 came into the knowledge of sale, she immediately pronounced her"talb-e- muwathebat." in the same "Majlis" and subsequently sent notices of "talb-e-ishhad" to the respondents. Plaintiff- petitioner claimed herself entitled to decree for the possession through pre- emption being "Shafi Shareek" and "Shafi Khaleet" as well as that she was never, been issued any notice prior to the sale by the vendor. The suit was resisted by the respondents-defendants through their written statement wherein they raised two preliminary objections regarding maintainability of the suit being filed as barred by time and that sale price of Rs. 2,70,000/- has been paid by the defendants-respondent alongwith Rs. 30,000/- incurred as expenditures of the transfer. On factual side while maintaining that Rs, 2,70,000/- were paid, sale was admitted, however, it was replied , that "talb-e-muwathibat" and "talb-e-Ishad were not performed in accordance with law, prayed that suit be dismissed. Out of the pleadings of the parties, learned Trial Court framed the following six issues:-
(1) Whether the plaintiff advanced Talabs as per law? OPP
(2) Whether the suit property was sold out in sum of Rs. 1,70,000/-? OPP
(3) Whether the plaintiff has got superior right of pre-emption qua defendants? OPP.
(4) Whether the defendant purchased suit properly in sum of Rs. Two lacs? OPD
(5) Whether the defendant is entitled to incidental charges. If so, to what extent? OPD.
(6) Relief, Parties were directed to lead their' respective evidence. Tariq Mehmood son of Ghulam Abbas Attorney of petitioner-plaintiff appeared as PW-1 who stated that plaintiff-petitioner came into knowledge of the sale through. Ghulam Haider on 28.2.1996 and she immediately showed her intention to pre-empt the sale; that she subsequently got prepared notices dated 3.3.1996 and sent to the respondents-defendants attested by Ghulam Haider and Nazir Ahmad witnesses. During the cross-examination this witness admitted that he did not know if plaintiff-petitioner mentioned the fact in her piarist that petitioner-plaintiff was informed by Ghulam Haider about the sale; that PW-2 Nazir Ahmad son of Ghulam Haider also admitted that petitioner- plaintiff was informed by Ghulam Haider about the sale and she proclaimed that she would pre-empt the sale. Learned counsel for the petitioner-plaintiff while getting exhibited on record the receipts of the registered post Exh. P3 to Exh. P5 alongwith copy of "fard Jamabandi" for the ye?Ir 1991-92 Exh. P6 closed the affirmative evidence. On the other hand, one of the defendants-respondents Zafar Iqbal appeared as DW-1 and stated that land in dispute was purchased in Rs. 2,70,000/- and they have further incurred Rs. 30,000/- on transfer etc. No notice was ever served on them nor "talb-e- muwathebat" was performed by the petitioner-plaintiff. Learned counsel for the respondents-defendants while getting exhibited mutation No. 7858 Exh. D/1, copy of receipt Exh. D/2 and copy of receipt of District Council Fee Exh. D/3 closed the evidence. Learned Trial Court vide judgment & decree dated 13.2.2002 while deciding Issues Nos. 1, 2 & 3 against the petitioner-plaintiff, the finding on issue No - 4 was passed that sale price was fixed as Rs. 2,70,000/- and issue No. 5 in favour of the defendants-respondents disrhissed the suit. Feeling aggrieved petitioner-plaintiff preferred an appeal, which was heard and decided by the learned Additional District Judge, who vide impugned judgment/ decree dated 18.2.2003 while maintaining the finding's of the learned Trial Court on all the issues dismissed the same. Hence, this revision petition.
2. Learned counsel for the petitioner-plaintiff argued that findings of-the learned Trial Court on Issues Nos.- 1 to 4 are against law and facts of the case; that petitioner-plaintiff who in her plaint specifically mentioned that when she came into knowledge of the sale she performed "talb-e- muwathibat" and then subsequently issued notice of "talb-e-ishhad"; that "talb-e-muwathibat" and "talb-e-ishhad" have been proved on record through the statements of PW-1 and PW-2 as well as documents submitted on record but the learned Trial Court as well as learned Appellate Court did not take into-consideration all these aspects and decided issues Nos. 1 to 4 & 6 against the petitioner-plaintiff and dismissed the suit. Prayed that as tapth the learned. Courts below passed their findings on the issues, as above-mentioned as a result of misreading*and non-reading of evidence on record, therefore, same are liable to be set aside and suit filed by the petitioner- plaintiff be decreed.
3. On the other hand, learned counsel for the respondents has vehemently opposed this revision petition on the ground that petitioner-plaintiff in her plaint did not mention the place, time as well as "majlis" where she allegedly came into knowledge about the sale in dispute, It was further argued that petitioner-plaintiff herself did not appear in the witness-box, however, she got examined PW-1 Tariq Mehmood her Attorney who in his statement stated that the petitioner- plaintiff came into knowledge of sale through one Ghulam Haider; .That said Ghulam Haider has not been even examined; that no time and place of the knowledge and performance of "talb-e- muwathibat" is proved on record, hence, when "talb-e-muwathibat" is not proved "talb-e-ishhad" is also not made out as it relates to the performance of "talb-e-muwathibat". While relying on 2009 SCMR 6.73 (Mst, Saleem Akhtar v. Chaudhry Shauk Ahmed), 2003 CLC 282 (Ali Muhammad y.
Ghulam Muhammad), 2009 SGMR 630 (Haq Nawaz v. Muhammad Kabir), 2009 SCM R 678 (Muhammad Suleman v. Shaukat Ali), 2007 SCM R 1036 {Khyber Khan and others v. Haji Malik Amanullah Khan) and 2007 SGMR 1531 (Ali Muhammad v. Muhammad Bashir) prayed that -revision petition be dismissed.
4. I have heard and considered the arguments addressed by learned counsel for the parties.
5. Now law has been settled on the. Subject by the Hon'ble Supreme Court of Pakistan and consistent view is that a plaintiff-pre-emptor must mention the place, time, date and "majlis" and the manner in which he or she came into the knowledge of the sale, It is also settled that performance of "talb-e-muwathibat" should be proved in positive and unambiguous manner, In this case the petitioner-petitioner did not mention in the plaint that how and at what time she came into knowledge of the sale. Para 2 of the plaint is reproduced as under:- {{Urdu Miss}} 6. Petitioner-plaintiff's attorney while appearing as PW-1 deposed that one Ghulam Haider informed about the sale and neither said Ghulam Haider was examined nor time and place of the knowledge was brought on record. A preemption decree can only be passed under Section 13 of the Punjab Pre-emption Act, 1991 when talabs i.e. "talb-e- muwathibat" and subsequently performance of "talb-e- ishhad" is proved on record, In the recent authoritative pronouncement of Hon'ble Supreme Court of Pakistan reported as 2009 SCM R 673 {Mst Saleem Akhtar v. Chaudhry Shauk Ahmed) their. Lordships at page 677 of the judgment in para 5 have specifically observed as under:- "Learned counsel for the respondent is right in submitting that the' law declared by this Court in the case of Pir Muhammad (ibid) was followed in the latest judgments Of Muhammad Iqbal and Bashiran Begum (ibid), In view whereof, it is by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-i-Muwathibat and date of issuing the notice of Taib-i-Ishad in terms of Section 13 of the Act. Otherwise plaintiffs suit deserved to be dismissed. As the appellant failed to plead qua making of Talb-i-Muwathibat in the plaint according to the parameters of law laid down by this Court in the cases of Muhammad Iqbal v. Ali Sher (2008 SCM R 1682), Bashiran Begum v.
Nazar Hussain (PLD 2008 SC 559) and Pir Muhammad v. Faqir (PLD 2007 SC 302), therefore, her suit deserved to be dismissed on this short ground."
In view of the above circumstances, when Talb-i- Muwathibat is not proved, question of performance of Talb-i- Ishhad does not arise, therefore, the findings of on Issues tips. 1 to 4 and .6 are rightly passed by both the learned Courts below. Resultantly, finding no merits in this civil revision, same is hereby dismissed.