JUDGMENT SYED AKHLAQ AHMAD, 'J.---This civil revision is directed against the judgment and decree passed by the learned Additional District Judge-II Mianwali dated 22-6-2004 whereby he dismissed the appeal filed by the petitioners/plaintiffs against the judgment and decree dated 13- 9-2002 passed by Civil Judge Isakhel by virtue of which he decreed the suit for possession through pre-emption of the petitioners/ plaintiffs.
2. Facts giving rise to this appeal are that on 24-3-1999, Noor Khan, predecessor-in-interest of the petitioners/ plaintiffs filed suit for possession through pre-emption against the respondents/ vendees in respect of land measuring 10 kanals in Khata No.421 min, Khatooni No.635, Khasra No.905/554 according to the register of record of rights for the year 1995-96 situated in Mauza Katcha Kass Umar Khan Tehsil Esa khel, District Mianwali through Mutation No.3987 dated 27-11- 1998 for Rs.40,000. However, to ward of prospective pre-emptor, the price of the same was shown as Rs.80,000. It is stated that the respondents/vendees purchased the suit land in a clandestine manner. No notice was given by the Revenue Officer as required under by law. Noor Khan deceased came to know about the sale of the suit-land on 19-3-1998 at 8-00 a.m. In his Baithak at Mitha Khatak through Mani Khan son of Abdul Aziz and he immediately pronounced to pre-empt the sale. Thereafter on 22-3-1998 (Monday) he got executed notice of Talb-e-Ishhad attested by Mani Khan and Muhammad Yousaf and sent it through registered post A.D. Postal receipts issued to the deceased petitioner were dated 22-3-1998 bearing Nos.811, 812 and 813.
3. Respondents/defendants contested this suit vide their written statement contending that the suit is not maintainable in its present form. The petitioner/ plaintiff/ pre-emptor is estopped by his conduct to file the suit. The requirements of Talb-e-Muwasabat and Talb-e-Ishhad have not been fulfilled. Plea of limitation has also been taken. It is asserted that the respondents/defendants purchased the suit-land for Rs.80,000. They have claimed incidental expenses of sale and also the improvements effected by them over the Suit land to the tune of Rs.20,000. It is prayed that the suit of the petitioners/ plaintiffs may be dismissed.
4. Out of the pleadings of the parties, the following issues were framed:-- Whether the suit is not maintainable in its present form? OPD Whether the plaintiff has no cause of action to file the suit? OPD Whether the plaintiff is estopped by his words and conduct? OPD
(4) Whether the suit is barred by limitation? OPD
(5) Whether the plaintiff has no right of pre-emption? OPD
(6) Whether the requirements of Talabs were fulfilled? OPD
(7) Whether the ostensible sale price was fixed Rs.80,000 in good faith? OPP
(8) Whether the defendant has incurred incidental charges of Rs. 20,000 on the improvement of the suit-land and in case of decree of the suit he is entitled to get the same? OPD
(9) Whether the plaintiff was in knowledge well before time regarding sale in dispute? OPD
(10) Whether the plaintiff has superior right of pre-emption? OPP
(11) Whether the plaintiff is entitled to get the decree as prayed for? OPP
(12) Relief.
5. The petitioners/plaintiffs examined Basharat Ali Registry Booking Clerk of Post Office as P.W.1.., Inayatullah, Post Master P .W.2, Mani Khan/informer P.W.3, Muhammad Yousaf P.W.4 and Haji Noor Khan, original pre-emptor himself as P.W.5 as well as produced documents Exh.P1 to Exh.P15 in support of their claim. On the other hand, only Sher Muhammad, one of the respondents/ defendants examined himself as D.W.1 as well as produced copy of Mutation Exh.Dl in support of their defence.
6. After hearing the arguments of both sides, the learned trial Court vide its judgment and decree dated 13-9-2002 decreed the suit of the petitioners/plaintiffs. Against this decision, the respondents/ B defendants went in appeal, which was accepted by the learned Additional District Judge Mianwali vide his judgment dated 22-6-2004 which has been assailed before this Court through present revision.
7. Learned counsel for the petitioners/plaintiffs contends that from the evidence on the record, three requisite talabs stood fully proved. There is no material contradiction in the statements of the P. Ws. On the strength of which their statements could be discarded. Superior right of pre-emption of Noor Khan deceased, the predecessor-in-interest of the petitioners/plaintiffs, is also fully established on the record. The lower appellate Court disagreed with the judgment and decree passed by the learned trial Court without any solid reason. The discrepancies pointed out by the learned lower appellate Courts in its judgment are minor in nature and liable to be ignored. He has misread and non-read the evidence on the record and proceeded to accept the appeal and dismiss the suit for possession through preemption of the petitioners/plaintiffs on mere surmises and conjectures. It is therefore, prayed that the appeal may be accepted, the impugned judgment and decree, dated 22-6-2004 passed by the learned Additional District Judge Mianwali be set aside and the judgment and decree dated 13-9-2002 passed by learned Civil Judge Mianwali be restored.
8. On the other hand, learned counsel for the respondent/defendants opposed this appeal and strongly defended the impugned judgment and decree passed by the learned Additional District Judge Mianwali dated 22-6-2004.
In support of his contention, learned counsel for the respondents/ defendants has relied upon 2005 YLR 2388 (Lahore).
9. I have heard the arguments of both the learned counsel for the parties and have also gone through the record.
10. Section 13 of the Punjab Preemption Act, 1991 prescribes that the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order:--
(i) Talb-e-Muwathibat;
(ii) Talb-e-Ishhad; and
(iii) Talb-e-Khasumat Subsection (2) of section 13 of the Act provides that when the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-e-Muwathibat.
Non-fulfilment of requirement of talabs would not entitle the plaintiff to decree for pre-emption.
11. The right of pre-emption being a very weak right in property, section 13 of the. Act contemplates a maximum period of two weeks for making Talb-e-Ishhad and for failure to do so, the right of pre emption is extinguished. It is necessary for the pre-emptor to make reference to his first demand, the Talab-e-Muwathibat, while making the second Talb, the Talb-e-Ishhad. The rationale behind is to put restrictions on exercise of said right, which is based on a tradition of the Holy Prophet (P.B.U.H.)
12. P.W.3. Mani Khan is the informer of this case. He deposed that on 19-3-1999 he told the plaintiff about the sale of the suit-land. He told this fact to him in his Baithak at about 8-00 p.m. On this, the plaintiff stated that he would pre-empt the sale. Thereafter on 22-3-1999, the plaintiff executed notices Exh.P-7 to Exh.P-9 which were signed by him. P.W.2. Inayatullah, Branch Post Master deposed that on 23-3-1999 he received registered Letters Nos.811, 812, 813 in the names of the defendants. He distributed the said registered envelopes to the defendants. Saifullah was the witness of delivery of the aforesaid registered envelopes. P.W.5 Haji Noor Khan/pre-emptor deposed that on 19-3-1999 at about 8-00 P.M. Math Khan told him about the impugned sale. On gaining the knowledge of sale he at once pronounced to pre-empt the suit land on 22-3-1999. He along with Mani Khan came to Katchery and then went to the chamber of Advocate and met Badshah Gul. Yousaf also came there. Three notices Exh.P7 to P9 were prepared. He along with the witnesses signed the notices. These notices were sent, to the respondents through post.
Statements of all the P.Ws. Remained materially un hattered and unshaken during cross- examination. They remained consistent on the points of superior right of pre-emption of Noor Khan, the predecessor-in-interest of the petitioner/plaintiffs, about gaining knowledge of sale by Noor Khan/preemptor from Mani Khan/informer and thereafter making of Talb-e-Muwathibat, Talb-e- Ishhad by him. In rebuttal only Sher Muhammad, one of respondents/defendants examined himself as D.W.1. And stated that Noor Khan had knowledge of sale of the suit land from the very beginning and he received no notice sent by the pre decessorin-interest of the petitioners/plaintiffs. Bald statement of one of the respondents/ defendants is not enough to discard the sufficient oral as well as documentary evidence produced by the petitioners/ plaintiffs to prove their case. He being party to the suit is interested to depose in his favour. The preponderance of evidence also lies in favour of the petitioner/ plaintiffs. In view of above I find that while passing the impugned judgment and decree dated 22-6-2004 the learned Additional District Judge Mianwali misread and non-read the evidence on the record and illegally set aside the judgment and decree dated 13-9-2002 passed by the learned Civil Judge Mianwali on mere surmises and conjectures.
13. The upshot of the above discussion is that I accept this civil revision, set aside the impugned judgment and decree dated 22-6-2004 passed by the learned Additional District Judge-II Mianwali and restore the judgment and decree dated 13-9-2002 passed by the learned Civil Judge Mianwali with the result that the suit for possession through pre-emption of the petitioners/ plaintiffs stands decreed in terms of the judgment given by the learned Civil Judge with no order as to costs.