JUDGMENT JUDGMENT'
MIAN SHAHID IQBAL, J.---This civil revision is directed against the judgment and decree dated 6-6- 2003 whereby suit filed by respondents was decreed and appeal filed by petitioners was dismissed.
2. The facts alleged by petitioners are that predecessor-in-interest of respondents/ plaintiffs filed suit on 18-7-1990 for preemption in respect of land measuring 11-Kanals and 17-Marlas situated in mauza Dodha Tehsil Shakargarh District Narowal, alleged to have been purchased for a consideration of Rs. 20,000 on the basis of ruppat dated 5-6-1990 which was sanctioned vide Mutation No. 135 dated 30-6-1990. As per contents of plaint the moment respondent's father came to know regarding sale of property at the same time he declared his right of pre-emption thus by virtue of notice dated 9-7-1990 issued to petitioner No.1/defendant No.1 which notice was attested by Bhoray Khan son of Weham Khan and Rahim Din son of Azhar Din on 9-7-1990. On 19-1-1991 defendant No.1 was served in the suit, who filed written statement on 24-2-1991 where he so mentioned that property in dispute in connection with a judgment and decree dated 18-8-1990 has been transferred back to Hussaina who subsequently sold the same to one Muhammad Aslam. On this information, suit was amended and Muhammad Aslam was arrayed as defendant No.2 in the proceedings who also filed his written statement on 14-6-1997 denying the averments of plaint. From divergent pleadings of the parties six issues were framed by the learned trial Court on 17-9-1997.
3. Rahim Din appeared as P.W.1, in examination he explains that he was sitting in the school premises where Shatab Khan came and Bhoray Khan told him regarding alleged transfer of property. He further explains that along with Bhoray Khan, P.W.1 one Razzaq were also present. He admitted that Razzaq is still alive. After two or three days they went for issuance of notice of Talb-i- Ishhad to Shakargarh which was written by Ch. Akhtar Ali, Advocate. In cross- examination he admits that notice was written in his presence but he was not present at the time of its posting but denied the suggestion that notice was not sent. Muhammad Jafar appeared as P.W.2 who happens to be son of Shatab Khan, as Shatab Khan expired during pendency of the suit. He submits that originally Hussaina was owner of the property who transferred it to petitioner No. 1.
During pendency of suit, said mutation was got cancelled and the property was returned to Hussaina who subsequently transferred it to petitioner No.2 through sale deedeed dated 29-10- 1990 Exh.P4 which sale-deed was executed secretly. Learned counsel for plaintiffs/respondents after producing P.W.1 and P.W.2 through his statement dated 2-12-1998 closed his evidence by tendering copy of register of rights for the year 1984-85 as Exh.P2, copy of disputed mutation as Exh.P3 and copy of sale-deed in favour of petitioner No.2 as Exh.P4. Learned counsel for plaintiffs again on 10-6-1999 produced photo copy of receipt of post office as Exh.P5.
4. The petitioner No.1/defendant No.1 appeared as DW-1 and supported the averments of written statement, narrated that he purchased property for Rs.20,000 he further explains that vendor Hussaina came from Ganja Singh Lahore in order to transfer the property. He further explains that before transfer of property to him, Hussaina asked Shatab Khan to purchase the property who showed his un-willingness as he did not had enough money to purchase the same, as such property was transferred to him (D.W.1) which was 'subsequently made subject matter of suit; as a result of that property through Hussaina now vest with defendant No.2, on the basis of judgment and decree passed in suit for specific performance. He denied to have received any notice of Talb- i-Ishhad from plaintiff (deceased) through registered post; it was further explained by learned counsel for petitioners that DW-2 also denied the service of notice upon him. Nevertheless it was never the case of Shatab Khan deceased predecessor-in-interest of respondents that against him Talbs were ever made against defendant No.2.
5. The learned trial Court decreed the suit vide judgment dated 15-9-2000; while deciding Issue No.2 held that as it is admitted by DW-1 that he has no land in the said joint Khata as such this issue is adequately proved and same is decided in favour of plaintiffs. As far as issue No.1 is concerned learned trial Court has mainly based his opinion on the evidence of P.W.1 who was one of the witnesses of notice of Talb-i-Ishhad, as Bhoray Khan and Shatab Khan have passed away, in absence of that he was the only reliable witness whom respondents could have produced.
Moreover, learned trial Court while further dilating on the said issue has also held that photo copy of receipt has been placed on record as Exh.P5 thereby holding that it was sent through registered post as such presumption goes in favour of addressee that notice was sent and received at the given address, thus finally on the basis of this evidence learned trial Court decreed the suit. As far as Issue No.3 is concerned learned court held that defendant No.1 has admitted the transaction through Mutation No.135 was for a sum of Rs.20,000 thus price was admitted, as such it was held in Issue No.3 that disputed property was transferred for Rs.20,000, so Issue No.4 was decided and in view of above said discussion learned trial Court decreed the suit. The petitioners filed an appeal on 9-10-2000, the learned lower appellate court also agreed with the findings of learned trial Court as such dismissed the said appeal on 6-6-2003. Hence both the judgments are called into question through this revision petition.
6. Learned counsel for petitioners submits that judgment and decree passed by both the lower courts are against law and facts, as such same cannot hold the field thus civil revision is liable to be accepted with the result that suit filed be dismissed. Learned counsel further submits that as in Paragraph No.4 of the plaint respondents/ plaintiffs have failed to mention date, time and place as such suit should have been buried at its very inception and the learned trial Court ought to have not proceeded further, which fact was not looked by both the courts below thus they over-looked the law regarding this factum. Learned counsel further submits that only one witness of Talb-i- Muwathibat was produced as such same was not proved. Moreover, in respect of Talb-i-Ishhad only P.W.1. Was produced, in absence of other witness both the Taibs since not proved, as such appeal should have been accepted and suit should be dismissed. This legal defect in the suit was not only over-looked by the learned trial Court but also by the learned lower appellate court.
Learned counsel further submits that death of Bhoray Khan could not be made an excuse for producing single witness when P.W.1 in his cross-examination admitted that at the time of Talb-i- Muwathibat one Razzaq was also present. Thus when all the facts were not taken into consideration by the learned trial Court while decreeing the suit nor the learned lower appellate court while concurring with the findings of learned trial Court attends to this vital part of evidence. Learned counsel further submits that photo copy of postal receipt which was produced as Exh.P5 through a statement of the counsel on 10-6-1999, which was not proved through the concerned post office record, hence the said photo copy since not proved could not be evaluated through evidence, whereas the learned trial Court has totally based his opinion by placing reliance on Exh.P5. Thus both the courts have fallen in error while deciding the matter in question. Learned counsel further submits that merely during the pendency of suit the transfer of property to Hussaina and from Hussaina to defendant No.2 does not by itself was sufficient to conclude in the matter that there was collusion between the parties. It is an admitted fact on the record that in respect of claim against petitioner No.2/defendant No.2 it was not the case of plaintiffs/respondents that they made Talb-i-Muwathibat in respect of said transfer or subsequently they by sending a notice to the said purchaser for Talb-i-Ishhad. Hence, on this score both the courts have fallen in error while deciding the matter. Learned counsel further submits that scribe of the document has not been produced as such the judgment in question in view of the law laid down in 1998 MLD 1592 questioned document is not proved and basing decision of suit in these circumstances would be defective which defect is not curable. Reference is made to 2007 SCMR 1105, 2003 CLC 282, 2005 SCMR 1201, PLD 2003 Pesh. 179, 1995 CLC 829 and 1999 CLC 1735.
8. On the reverse, learned counsel for respondents submits that there is concurrent findings of fact on record as such same cannot be discharged in the civil revision. He further submits that there is no miss reading or non-reading of evidence, therefore, civil revision is liable to be dismissed.
Learned counsel further submits that as both the P.Ws. Were never questioned on this point as such stance taken by the petitioners cannot be accepted; further submits that DW-1 in his examination has stated not to have received notice sent to him through registered post. Learned counsel further submits that suit property falls within the jurisdiction of village Dodha Tehsil Shakargarh District Narowal, at that time civil court Sialkot was not competent court as such any proceedings in the said suit would not affect the proceedings in suit for pre-emption. As the said court lacks jurisdiction, any judgment and decree passed by the said court is not executable. On Court's query learned counsel for respondents frankly admits that since the judgment and decree passed was without jurisdiction it was not a necessity to challenge same. Learned counsel further submits that all proceedings vis-a-vis suit for permanent injunction/ declaration cannot be read into under Order VI Rule 7, C.P.C.; further submits that since document (Exh.P5) when placed on record was not objected to as such it stood proved. Learned counsel further submits that under section 24 of General Clauses Act and under section 5 Rule 10(A) if anything is posted at the given address, would be deem to have been received in absence of any evidence. Learned counsel further submits that as P.W.1 and P.W.2 were not cross-examined on the material points as such judgment passed by both the courts below cannot be reversed; further submits that Razzaq was only present at the time of Talb-i-Muwathibat, he was not witness of Talb-i-Ishhad as such he was not produced. Learned counsel further submits that as the suit was filed by counsel who had himself sent notice, therefore, there was no necessity for producing the said counsel as witness in the suit.
Learned counsel further submits that since the prevailing law at that time did not make it necessary for mentioning date, time and place as such subsequent change in law would not affect the premises of suit so filed. Learned counsel further submits that collusiveness of the present petitioners/ defendants is dancing on the face of record as both the contestants had filed written statement through one counsel. The other submission that in view of law laid down in respect of lis pendens any transfer made during pendency of the suit on the basis of which disputed property was transferred would not affect the rights of respondents/ plaintiffs vis-a-vis the cause of action accrued. Finally, learned counsel submits that in view of legal defects revision petition is liable to dismissed. Reference is made to 2000 SCMR 329; 2000 SCMR 314, 1999 SCMR 717, 2000 CLC 623, 2004 SCMR 578 and PLD 2003 SC 818.
9. Having heard arguments of learned counsel for the parties and with their assistance having gone through the record; it is observed as under.
10. It is by now a settled law that in a suit for pre-emption in order to see bona fides of the pre- emptor it is necessary that he should in his plaint mention the particulars i.e. Date, time, place and names of witnesses in respect of Talb-i-Muwathibat and Talb-i-Ishhad. In the present case if contents of para. No.4 are gone through it would convey that plaint did not specify the date, time and place as required under section 13 of Punjab Preemption Act, 1991, reference is made to PLD 2007 SC 302 relevant part is reproduced as under:-- "the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint date, place, and time of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated.
Supposing that there is no mention of the date, place and time of Talb-i-Muwathibat, then it would be very difficult to give effect fully to subsection (3) of section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-Ishhad. It is now a well settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit."
Since the plaint itself was defective to the extent of non-mentioning all the requirements in suit, in the given circumstances court could not proceed in view of the legal bar as laid down in the above said judgment, which has not been attended to by both the lower courts, the judgment referred to by learned counsel for respondents 2000 SCMR 329, 2000 SCMR 314, are earlier in time and by now it is a mandatory requirement as laid down in the above referred judgment that date, time and place have to be mentioned so as to enable the pre-emptor to proceed in the suit.
11. The next question to be reckoned in the suit for pre-emption is whether Talb-i-Muwathibat was made spontaneously at the time when the pre-emptor had knowledge of transfer of property in the said Majlis declaring his intention to exercise the right of preemption. In the present case only P.W.1 appeared and has narrated that, the moment predecessor-in-interest of plaintiffs/respondents came to know he showed his willingness to pre-empt the sale. As per statement of P.W.1 one Bhoray Khan and Razzaq along with him were present on the said occasion.
During pendency of suit Bhoray Khan died and only P.W.1 was produced. They did not produce Razzaq who was next best available evidence in order to prove that part of the story, that Shatab Khan came to know regarding transfer of property intends to file suit. In the present circumstances and in view of law laid down in PLD 2006 SC 309 wherein things have finally been settled. It is for the pre-emptor to prove through cogent evidence showing that he had showed his intention to pre- empt the property. In the present case both the lower courts have not adverted to this part of evidence on record which falls short of the judgment laid down, as such both the courts below have misread the evidence thus making the judgment in the presence of evidence perverse to the extent of proving of Talb-i-Muwathibat. Relevant part is reproduced as under:- "This is settled proposition of law that the pre-emptor without satisfying the performance of Talbs in accordance with the requirement of section 13 of Punjab Preemption Act, 1991, cannot succeed and unless it is established on record the specific date of knowledge of sale and the Majlis in which the declaration was made for exercise of right of pre-emption, the requirement of Talb-i- Muwathibat is not fulfilled and if the first Talb is not proved to have been made in accordance with law, the performance of second Talb (Talb-i-Ishhad) also cannot be proved. The right of pre- emption is a practical right and the pre-emptor must prove the essential conditions for exercise of such right strictly in accordance with law."
12. The second bar which a pre-emptor had to cross is to prove that after coming into knowledge regarding sale of the property and having shown his intention to pre-empt the property in question, he did sent a notice to purchaser of property asking him that he having a better right as pre-emptor to the property in question as such the same be transferred to him. It was the case of respondents/plaintiffs preemptor that he along with Bhoray Khan and P.W.1 went to civil court in order to sent notice to petitioner No.1 showing his intention to prove the same. As per his saying he went to Ch. Akhtar Ali. Advocate got the said notice drafted and thereafter, it was posted to the addressee against whom he has raised his superior right of preemption. In the present case P. W.1 in his on statement admitted that he was only present at the time of sending the notice through post office. In the present case after completion of evidence by plaintiffs/ respondents and statement of their counsel by tendering Exh.P2 and Exh.P3 on 2-12-1998 but later on, produced photo copy of receipt issued by post office on the basis of which as alleged by him notice of his intention to purchase the property was sent for. Learned counsel for respondents strongly argued that in presence of proof of photo copy of receipt and its specifically due exhibition as Exh.P5, it was proved on record that notice was sent by him, hence judgment passed by both the courts below was fully inconsonance with the facts and circumtances of the case as he referred to in "Abdul Malik v. Muhammad Latif" (1999 SCMR 717) and "Manzoor Hussain, and three others v. Muhammad Siddique (2002 CLC 623).
13. I am afraid that both these judgments are totally different on the proposition as to the present case. In the present case the question remained to be resolved was that in presence of fact that present petitioners/defendants have categorically denied the receipt of notice through registered post, so merely tendering a photo copy of receipt of whose origin was yet to be proved, cannot be made basis for proving the document. There is no denial to the fact that no original receipt in respect of notice, sent, placed and proved on the record so as to demonstrate and prove that notice was sent to addressee at the given address then under section 24 of the General Clauses Act and Article 129 of Qanun-e-Shahadat Order, 1984, presumption would tilt in favour of person sending notice. In present case photo copy of receipt was placed on record and not through the statement of person who had sent the notice rather through a counsel who had filed suit.
Reference is made to section 13(3) of Punjab Preemption Act, 1991 which says that:- "Where a pre-emptor had made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre-emption."
"Provided that in area where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses."
In my view by merely tendering a photo copy of receipt regarding which there is nothing on the record as to what happened with the original receipt and if at all it was admitted (though not) in the present case E that if notice was sent to vendee by the preemptor at the given address and the acknowledgment due which was never placed on record has been received back with the endorsement either refused or have received the notice, then presumption would have been in favour of person sending notice. In absence of that merely placing on record photo copy of registered receipt do not absolve the pre-emptor from the responsibility fixed on him to prove the fact. Reliance is placed upon 2008 SCMR 1366, 2007 SCMR 1105 and 2005 YLR 77 which says that:- "Mere placing on record photocopies of notice of Talb-i-Ishhad without confronting those to witnesses would not prove the making of Talb-i-Ishhad. Courts below would be right in their concurrent judgments in dismissing pre-emption suit. High Court upholding concurrent judgments of Courts below and dismissing revision petition filed by preemptor/plaintiffs to challenge them."
14. So, in my humble observations both the courts below did not advert to this legal defect in the evidence thus overlooking the same having passed judgment and decree. Reference is made to a judgment reported as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) which says that:-- "The requirement of "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgment due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgment card carries an endorsement of "refusal" or "not accepted" a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, B. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but no accepted by it."
In absence of the procedure adopted by respondents to prove photo copy of receipt which was a very vital document in order to prove Talb-i-Ishhad failing which both the learned lower courts have committed an illegality thereby appreciating the said photo copy and deciding the matter on the basis of Ex-P5. Relevant provision is reproduced as under:-- Article 67 of Qanun-e-Shahadat Order, 1984.
"----Secondary evidence---Photocopies of the notices were exhibited without bringing on record their originals----Notices to produce the originals were not issued----Permission to produce secondary evidence was not sought----Notices of "Talb-i-Ishhad" were not proved in circumstances."
15. The other legal ground which both the lower courts failed to advert was scribe of document.
Learned counsel for respondents in this regard, had argued that counsel in the suit himself had written notice so there was no necessity to produce the said counsel for proving the same. This contention of learned counsel is repelled in the light of law laid down in "Water and Power Development Authority v. Ghulam Shabbir" (1998 MLD 1592) wherein it has been held that:- "The rationale behind production of scribe of a document is obvious; that scribe on entrance in the witness box while proving the document in question is made available to the opposite party to be cross-examined by it, and thus, the truth is unearthed. In the instant case their scribe not having been procured, Exh . P1 remained unproved, and therefore, it could not be read into evidence. The contents of the document were not gospel truth to be accepted as such by the trial Court."
In order to prove a document it is necessary under the law that person basing his claim on the said document ought to have proved the same through its scribe. In absence of that notice does not stands proved as such judgment and decree of both the lower courts cannot hold the field.
16. Lastly, learned counsel for respondents argued that principle of lis pendens applies to the present suit as property was transferred to defendant No.2 during pendency of suit and in this regard he has referred to PLD 2003 SC 818 and 2004 SCMR 578. The question of lis pendens does not even favour the present respondents as in a number of judgment wherein it has already been held and clarified through numerous case law settled that if the principle of lis pendens is H allowed to be applied on the pre-emption suit then provision of section 13 will become redundant and question of Talbs and its subsequent requirement will become insignificant. This opinion is further fortified firstly by 2004 SCMR 1270, relevant part is reproduced as under:-- "How by any stretch of imagination or interpretation this further sale can be brought within the four corners of the principle of lis pendens. The learned High Court has, therefore, rightly held that it was a new transaction altogether and the pre-emptor, if at all interested in pre-empting the sale, should have filed a suit against the latest sale and not against the previous one. If the principle of lispendes is wrongly applied to the sales taking place prior to the institution of suit then every purchaser shall be made bound to wait for a pre-emption suit and refrain from exercising his proprietary rights over the property purchased. This right of preemption, by such interpretation, cannot be so over-stretched and so blown out of proportions."
The next judgment which also lays the same principle as PLD 2009 SC 93, relevant part is reproduced as under:-- K "Further sale in favour of Abrar Hussain (respondent No.1) prior to the institution of pre-emption suit could not be brought within four corners of the principle of lis pendens and since and further sale transaction had already taken place, it was the vendee of that further transaction against whom suit for pre-emption should have been filed. Thus institution of preemption suit against a person who was no more vested with title would be nothing but an exercise in futility."
The observations in these two judgments fully elaborate the facts that once principle of lis pendens is allowed to fall on suits like pre-emption it would amount to extinguishing and liquidating the provision of section 13 of Punjab Pre-emption Act, 1991. In the present case it is not the stance of respondents that after coming into knowledge of transfer of property through registered sale-deed dated 29-10-1990 Exh. P4 to petitioner No./ Shatab Khan specifically again made firstly Talb-i- Muwathibat thereby claiming right of preemption against petitioner No.2 and thereafter sending him notice of Talb-i-Ishhad. Thus question of lis pendens would not come into field and case of present respondents to the extent of non proving of Talbs would debar them from claiming their right in absence of said Talbs.
17. Lastly, respondents have argued that as sale took place during the interregnum period as such requirement of Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-Khusoomat were not binding on the respondents, therefore, the questions raised in the present civil revision. Cannot hold the field. From the record, it is confirmed that first transfer of property was made through Mutation No. 135 dated 30-6-1990 which mutation was cancelled on the basis of a suit for specific performance decreed vide judgment and decree dated 18-9-1990, thus after return of property in the name of Hussaina the same was then sold to petitioner No.2 vide sale-deedeed dated 29-10-1990 Exh.P4. The suit was filed on 18-7-1990 and petitioner No.1 filed written statement on 24-2-1991 whereas petitioner No.2 filed written statement on 14-6-1997. The interregnum period as shown in a judgment reported as "Muhammad Usman etc., v. Khushi Muhammad etc." 2001 YLR 2908 is 1-8-1986 to 28-3-1990 when on the said day Punjab Pre-emption Ordinance was notified thus from the above L said dates it is admittedly clear that when predecessor-in-interest of respondents filed suit for pre-emption on 18-7-1990 the Ordinance was in force. Hence, the said law with its full force was applicable, therefore. Arguments of the learned counsel do not hold the field. The relevant portion of above judgment is reproduced as under:-- "Pre-emption suit filed during the interregnum period between 1-8-1986 and 28-3-1990 would be governed by Islamic Law of Preemption as to talbs and not by section 13(3) of the Act. In such case, it shall be sufficient for a pre-emptor to establish that he had made Talb-i-Ishhad in presence of two truthful witnesses. In view of saving provisions contained in section 35(2), pre-emptor were not required in such case to prove in strict terms the issuance of notice to Talb-i-Ishhad to vendees in accordance with section 13(3) Rejection of plaint of suit of such pre-emption suit on ground of non compliance with requirements of section 13(3) as to making of talbs would be illegal. High Court accepting writ petition against such illegal order passed by Addl. District Judge in exercise of his revisional jurisdiction, setting it aside and remanding the case to Trial Court for decision of preemption suit on merits."
18. The net result of scanning of above record along with law laid down is that both the lower courts did not advert to legal proposition of law which has been settled up to now that pre-emptor could not prove firstly Talb-i-Muwathibat through two truthful witnesses as only one person to the happening of event i.e. P.W.1 was produced. Moreover, they even could not prove that they made Talb-i-Ishhad on the basis of which they did send a notice which was written by scribe, neither they brought two truthful witnesses of said notice nor scribe to prove the same was produced.
19. In view of the same, I would hold that pre-emptor has failed to prove Talb-i-Muwathibat and Talb-i-Ishhad. In these circumstances, this revision petition is accepted with the result that judgment and decree passed by the Courts below are set aside and suit for pre-emption is dismissd.