SYED AKHLAQ AHMAD, J. This Civil Revision is directed against the judgment and decree dated 15- 7-2004 passed by the learned Addl. District Judge Shorkot whereby he accepted the appeal filed by Khan Muhammad appellant/ plaintiff, set aside the impugned judgment and decree dated 30- 10-2002 passed by the learned Civil Judge 1st Class Shorkot by virtue of which he dismissed the suit for possession through pre-emption of Khan Muhammad respondent/plaintiff with the result that the suit of the respondent/ plaintiff stood decreed for consideration of Rs,1,00,000 plus incidental charges amounting to Rs,11010. Respondent No, 1/plaintiff was directed to deposit the remaining amount of consideration and incidental charges in the trial Court within a period of one month failing which the suit ' was ordered to be dismissed.
2. Facts giving rise to this Civil Revision are that on 24-4-1998 Khan Muhammad/respondent/plaintiff filed suit for possession through pre-emption against Haq Nawaz (now deceased) and others in respect of land measuring 8-kanals, 160/3077 share of total land measuring 153-kanals 17-marlas in Khata No, 183 situated in village Fatehpur Pritty Tehsil Shorkot District Jhang vide Mutation No, 2666 dated 31-12-1997 for an alleged consideration of Rs,80,000.
However, in order to damage the right of pre-emption of respondent No,1/plaintiff, the sale was kept secret and ostensible sale price of Rs,1,00,000 was got entered in the mutation of sale in question whereas at that time, the market value of the suit was not more than Rs,80,000. He along with Sarfraz Khan came to know about this sale for the first time on 17-4-1998 (Friday) at 10-00 a.m at his Dera through Ahmad Nawaz Khan son of Muhammad Khan/ informer and immediately pronounced to pre-empt the suit-land. In this way, he made Talb-e-Muwathibat. In confirmation of this Talb, he also made Talb-e-Ishhad in the presence of aforesaid two truthful witnesses by sending written notice through Registered A/D dated 18-4-1998. Respondent No,1/plaintiff claims his superior right 'of pre-emption over the suit-land qua the petitioners/defendants on the ground of co-sharer, participator in amenities and owner of contiguous land.
3. The petitioners / defendants contested the suit vide their written statement in which it is contended that respondent No,1 / plaintiff remained associated in the sale of the suit-land. He along with the vendors gave oath on the Holy Quran that they would not pre-empt the suit-land.
The sale was struck with the efforts of respondent No,1/ plaintiff. He was present at the time of payment of sale consideration, attestation of mutation and delivery of possession of the suit-land.
He has, thus, waived his right of pre-emption over the suit-land. The petitioners/ defendants have also incurred incidental charges in the shape of payment of District Council Fee and mutation fee from their pocket which they are entitled to get from respondent No,1/plaintiff in case the suit is decreed in his favour. It is asserted that respondent No, 1/plaintiff has not made the required Talbs in accordance with law. On facts, averments of respondent No,1/ plaintiff as set out in his plaint are not admitted. It is stated that the petitioners/ defendants purchased the suit-land through mutation of sale for a consideration of Rs,1,75,000 which was actually fixed and paid. However, on the assurance Of respondent No, 1/plaintiff and the vendors on the oath of Holy Quran that they would not pre-empt the suit-land, the sale consideration of Rs,1,00,000 was incorporated in the mutation.
4. Out of the pleadings of the parties, the following issues were framed by the learned Civil Judge vide his order dated 14-7-1998.
ISSUES:
(i) Whether the plaintiff asserts superior right of pre-emption qua the vendees defendants as per contents of this plaint? OPP
(ii) Whether the plaintiff has fulfilled the requirements of necessary Talbs? OPP
(iii) Whether the plaintiff is entitled to get decree on the basis of his alleged superior right of preemption as prayed for? OPP
(iv) Whether the ostensible sale price of the suit-land Rs,1,00,000 was fixed in good faith and was actually paid by the vendees/defendants at the time of transaction of sale? OPD
(v) If the above issue is not proved, then what was the market value of the suit-land at the time of impugned transaction of sale? OP Parties
(vi) Whether the plaintiff has waived his alleged right of pre-emption? OPD
(vii) Whether in case of decree of this suit, defendants would be entitled to get District Council Fee, mutation fee etc? If so, to what extent? OPD (viii)Whether the description of the suit property is incomplete and ambiguous? OPD
(ix) Whether the plaintiff has no locus standi and cause of action? OPD
(x) Relief.
5. In support of his claim, respondent No, 1/plaintiff examined P.W .1 Muhammad Baksh, Postal Clerk Shorkot, P.W.2 Muhammad Manzoor, Branch Post Master Fatehpur Pritty Tehsil Shorkot District Jhang, P.W.3 Khan Muhammad/ respondent No, 1/plaintiff himself, P.W.5 Ahmed Nawaz/ informer, PW-6 Riaz Hussain and again P.W.7 Khan Muhammad/respondent No .1/plaintiff himself in rebuttal and also produced documents which are Exh.P-1 to Exh.P-18 on the file.
On the other hand, the petitioners/ defendants only examined DW-1 Ghulam Qasim Khan, DW-2 Amir Khan, DW-3 Samail Khan and DW.4 Zamir Khan in their defence.
6. After hearing both the learned counsel for the parties, the learned trial Court vide its impugned judgment and decree dated 30-10-2002 dismissed the suit of respondent No, 1/plaintiff. Against this decision, the respondent No,1/plaintiff filed an appeal which was accepted by the learned Addl.
District Judge Shorkot vide his judgment and decree dated 15-7-2004 with the result that the suit for possession through pre-emption of respondent No,1/plaintiff stood decreed in his favour and against the petitioners/defendants. Hence, this civil revision.
7. Learned counsel for the petitioners/defendants mainly argued that the finding of the learned Appellate Court is not supported by the evidence on the record. Non-fulfilment of requisite Talbs stood established from the material on the record. Learned Appellate Court has given its findings on surmises and conjectures and erred in law in holding that respondent No,1/plaintiff has performed the necessary Talbs. It is, therefore, prayed that the revision may be accepted, the impugned judgment and decree of the appellate court be set aside and the suit for possession through pre-emption of respondent No,1/plaintiff be dismissed.
8. On the other hand, learned counsel for respondent No, 1/plaintiff opposed this Revision and strongly defended the impugned judgment and decree passed by the learned Appellate Court.
9. I have heard the arguments of the learned counsel for the parties and have also gone through the record.
10. The question of performance of Talb-e-Muwathibat is not a mere technicality vis-a-vis the superior right of pre-emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-e-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 pre-emption.
11. The giving of details of Talb-eMuwathibat is important with reference to time and place because therefrom the limitation for Talb-e-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.
12.Accordingto Section 13, Explanation 1 of the Punjab Pre-emption Act 1991, Talb-e-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 preemption. 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 11 Page 550) which provides "If the man claims his shuffa in the presence of the company amongst whom he may be sitting when he receives the intelligence, he is the "Shafee" his right not be invalidated unless he delays asserting it till after the company has broken up."
13.This is a clear indication of compulsion on the prospective pre-emptor that he has to make Talb-e-Muwathibat in between the period of his having received the information in the Majlis and the dispersal of the Majlis. Beyond such limitation, the Talb if exercised would be A invalid. The second step is that of Talb-e-Ishhad which has to be completed within two weeks after the performance of Talb-e-Muwathibat. A pre-emptor can be non-suited for non-performance of Talb-eIshhad as well and the performance of the later is to be linked with the performance of the former. The third one is Talb-eKhusumat which is the filing Of a pre-emption suit and that too within a period of 120 days.
14.It is 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 C time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In my view, it is important to tell the date and time of the performance of Talb-e- Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-e-Muwathibat in the same meeting and before the dispersal thereof.
15. It has been held in Ghulam Hussain Shah v. Mulazim Hussain Shah 1996 SCM R 294 that "The requirement of Talbe-Muwathibat is that as soon as the plaintiff learns about the sale, he would "without any delay immediately declare that he would exercise the right of Shufa against the said sale" and further that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale.'
It has been laid down in 'Rana Muhammad Tufail v. Munir Ahmad and another PLD (sic) SC 13 that "The requirement of law is that Talb-e-Muwahtibit is to be made immediately in the sitting or meeting in which the prospective pre-emptor had come to know of sale which, he intended to pre- empt. Where pre-emptor fails to make Talb-e-Muwathibat in prescribed manner, then the suit is liable .to be dismissed irrespective of the fact that he made such Talbs after one hour or one day of the sitting or meeting in which he had .known about the sale."
16., The date and -time is important to be mentioned in the -pleadings because therefrom the performance of Talb-e-Ishhad has. to be computed so as to be within ,two weeks. As mentioned earlier, in civil cases in general, the point of time qua accrual of knowledge .requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The case of pre-emption should not be .an exception to the general law and the day and time of performance of Talb-e-Muwathibat which is 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-e- Muwathibat is appreciated and at the second, instance the limitation qua the performance of Talb-e-Ishhad is calculated.
17. As in this case, the sale of the suit land took place through Mutation No,2666 dated 31-12-1997 (Ex.P-9) whereas respondent No,1/ plaintiff filed this suit on 24-4-1998 i,e, after expiry of 3 months and 23 days.
18.About the performance of Talbs, the case of respondent No,1/plaintiff in para No,5 of the amended plaint is that he along with Sarfraz Khan son of Muhammad. Khan came to know about the sale of the suit-land at his Dera front Ahmad Nawaz Khan son of Muhammad Khan on 17-4- 1998 (Friday) at 10-00 a.m, On the contrary, in his statement as P.W.7, respondent No,1/plaintiff admitted during cross-examination as under: {URDU TEXT}} As stated earlier, the sale of the suit-land took' place on 31-12-1997 while statement of respondent No,1/plaintiff as P.W.7 was recorded by the court on 18-7-2001. When calculated from his statement, the date of . knowledge of respondent No,1/plaintiff about the sale comes to 1-3-1998. In this way, respondent No,1/plaintiff has himself negated the date of knowledge gived by him in para No,5 of the amended plaint. As P.W.3 and P.W.7, the respondent No,1/ plaintiff has not stated the date when he came to know about the sale of the disputed land. The same is the position of the other P.Ws. including the informer. No one has stated the point of time with reference to date. Each P.W. has stated about it with reference to length of time which is not proper. Even according to the calculation made by the learned appellate Court in para No,5 of , his judgment, the date of knowledge of the disputed sale by respondent No,1/plaintiff comes to 15-4-1998 and not 17-4-1998 as specifically mentioned by him in para No, 5 of the amended plaint. In view of above contradictions, the performance of Talb-e-Muwathibat by respondent No, 1/plaintiff has not been proved in this case in accordance with law.
19. Service of notice of Talb-e-Ishhad of respondent No, 1/plaintiff upon the petitioners/defendants is also shrouded in mystry in this case. According to the application dated 10-10-2001 moved by respondent No, 1/plaintiff for additional evidence, the petitioners/defendants had received the notice of Talb-e-Ishhad and due to this reason, he proved the photo copies of the said notice in the court through secondary evidence. However, later on he came to know that - the petitioners/ defendants have not received the original notice and the same were lying in the post office with the report of refusal.
The narrated story does not strike to reason. If the petitioners/defendants had refused to receive these notices, it should have been returned to respondent No,1/ plaintiff. There was no justification of retaining the same by the post office with the report of refusal. This being so, the sending of notice of Talb-e-Ishhad by respondent No,1/plaintiff and its receipt by the petitioners/defendants has also not been proved as required by law.
20. For all these reasons, respondent No, 1/plaintiff has failed to prove Talb-e-Muwathibat and Talb-e-Ishhad in this case. I therefore, accept this civil revision, set aside the impugned judgment and decree dated 15-7-2004 passed by the learned Addl. District Judge Shorkot with the result that the suit for possession through preemption of respondent No,1/plaintiff stand dismissed. Both the parties are left to bear their own cost. (Haji Muhammad Saleem v. Khuda Baksh PLD 2003 SC 315. relied upon).