' AHMAD FAROOQ, J.---Brief facts leading to the instant appeal (R.S.A.) are that on 24-6-2004 Mazhar Hussain Shah and Taskeen Haider (vendors) sold their 76 kanals and 19 marlas of land situated in Village Kot Kalian, Tehsil Wazirabad, District Gujranwala for an ostensible sale price of Rs,29,00.000 to Syed Ghulam Abbas, the plaintiff/pre-emptor, who was sitting at his `Dera' in Village Kot Noora around 3-00 p.m., in the presence of Muhammad Younis (P.W.3) and Asmatullah (P.W.4), was informed by his son, namely, Khalid Mahmood (P.W.2) that Mazhar Hussain etc. Had sold the land to .Syed Ghulam Abbas/appellant. Ghulam Hussain (defendant)/respondent there and then declared in that very assembly that he would file a pre-emption suit (and in this way, he made Talb-e-Muwathibat). On the next day, i.e, 31-8-2004, he went to Wazirabad and in the presence of Khalid Mahmood (P.W.2), Muhammad Younis (P.W.3) and Asmatullah (P.W.4) got prepared the notices regarding Talb-e-Ishhad and sent the said notices through registered post (A.D.) to Syed Ghulam Abbas (vendee)/appellant. Thereafter, on 21-9-2004, he filed a suit for preemption against Ghulam Abbas (vendee)/defendant in the Court of Civil Judge, Wazirabad. It was alleged by him that the sale had been kept secret from him and also that the land had been actually sold for Rs,19,00,000, whereas in the sale-deed, a fictitious sale price of Rs,29,00,000 had been shown. He further alleged that he was co-owner in the Khata and his land was also contiguous to the land in dispute and the means of irrigation and passage were also joint and as such, he has preferential right to purchase/pre-empt the land and prayed for a decree for possession through pre-emption of. The land in dispute on payment of Rs,19,00,000, i.e, the actual sale price or at the price as fixed by the Court.
2. Syed Ghulam Abbas (vendee)/appellant, who was defendant in the original suit, filed a written statement and claimed that neither the plaintiff had superior right of pre-emption nor he had made the necessary "Talbs" in accordance with law. He also alleged that Ghulam Hussain (plaintiff) and his son Khalid Mahmood (P.W.2) were present at the time of sale. They were offered to purchase the land in dispute but they declined. However, they had full knowledge of the sale right from the date of sale, i.e, 24-6-2004. It was also asserted by him that the actual sale price, which was fixed and paid bonafidely, was Rs,29,00,000.
3. On the divergent pleadings of the parties, the learned Civil Judge, Wazirabad framed as many as 9 issues and the parties were asked to produce their respective evidence.
4. So far as the plaintiff/respondent is concerned, he examined Syed Tufail Haider, Post Master to prove Talb-e-Ishhad and Khalid Mahmood as P.W.1 and 2, respectively, in order to prove the conveying of information to the plaintiff and of his making Talb-e-Muwathibat in the same Majlis, in which he was informed about the sale and this way, he also proved his making of Talb-e-Ishhad through sending notice by registered post A.D. Muhammad Younis/P.W.3 and Asmatullah/P.W.4 proved Talb-e-Muwathibat and Talb-e-Ishhad. Ghulam Hussain (plaintiff)/respondent appeared as his own witness to prove Talb-eMuwathibat and Talb-e-Ishhad and also to prove his preferential preemption right Nasir Ahmad/P.W.6 was scribe of notice through which Talb-e-Ishhad was made. In addition, to the above oral evidence, the plaintiff also produced in his evidence documents as Exh.P/1 to Exh.P.16. The defendant himself appeared in the witness box as D.W-1 and also produced in evidence copy of Khasra Girdawari of concerned Kharif crop as Exh.D/1.
5. On the conclusion of the evidence, after hearing both the parties, the learned Civil Judge, Wazirabad in view of his findings on Issues Nos.1, 2 and 8 proceeded to dismiss the suit, vide his judgment and decree dated 24-1-2007.
6. Aggrieved of the above mentioned judgment and decree dated 24-1-2007, passed by the learned Civit Judge, Wazirabad, Ghulam Hussain (plaintiff)/pre-emptor filed an appeal before the learned Additional District Judge, Wazirabad and who, after hearing the arguments, vide his judgment and decree dated 29-8-2007, accepted the appeal, set aside the judgment and decree of the learned Civil Judge, Wazirabad, dated 24-1-2007, and decreed the suit for pre-emption, filed by the plaintiff, on payment of Rs,29,00,000 as sale price, which was to be paid within 30 days from the date of judgment, failing which the suit of the plaintiff was to stand dismissed.
7. Aggrieved of the aforesaid judgment and decree, passed by the learned Additional District Judge, Wazirabad as first court of appeal, the plaintiff has filed the instant R.S.A. Before this Court.
8. The learned counsel for the appellant/vendee has raised the following contentions in his arguments:--
(i) Making of Talb-e-Muwathibat has not been duly proved by plaintiff/pre-emptor as the land of the pre-emptor, namely, Khadim Hussain was adjacent to the land in dispute and he had the knowledge of sale of land in dispute right from the date of impugned sale;
(ii) That the Talb-e-Muwathibat is a jumping demand and no physical gesture such as "Jumping" etc. Was made by him while making Talb-e-Muwathibat;
(iii) No offer was made by the vendee/appellant to pay the actual sale price as mentioned in the sale-deed, after making Talb-eMuwathibat, which is mandatory;
(iv) That there is no proof that the notice was ever sent by the present respondent, which was received by the appellant;
(v) That the plaintiff/Ghulam Hussain as well as Muhammad Younis (P.W.3) admitted in their statements that after the sale, paddy crop was sown and harvested by the appellant/vendee and it is obvious that the plaintiff had come to know about the sale much before 30-8-2004;
(vi) That the "Talbs" made by the respondent/pre-emptor on 30-8-2004 were hopelessly barred by time; and
(vii) That Khalid Mahmood (P.W.2), who is son of the plaintiff/preemptor, was a "Registry Moharrar" and he must have attained the knowledge of the sale through his colleagues.
' The learned counsel for the appellant submitted that the impugned judgment and decree, dated 29-8-2007, passed by the First Court of Appeal, be set aside and the judgment and decree dated 24-1-2007, passed by the learned Trial Court, be restored. The learned counsel for the appellant in support of his arguments, relied upon the judgments reported in Muhammad Ramzan v. Lal Khan (1995 SCMR 1510), Mst. Amir v. Soini (1997 MLD 2376) and Amir Abdullah and others v. Muhammad Bukhsh (2006 CLC 200).
9. Conversely, the learned counsel for the respondent supported the impugned judgment and decree, dated 28:9-2007, and claimed that the findings of the learned Additional District judge must-be preferred to those of the learned Civil Judge: He submitted that the respondent had a superior right of presumption and the requisite "Talbs" were proved from the evidence available on the record of the learned Trial Court. He further submitted that Ghulam Hussain/D.W-1 admitted in his cross-examination that the land of the plaintiff is at a distance of 10 to 12 "Karams" from the land in dispute. Moreovei , the respondent, namely, Ghulam Hussain is a permanent resident of Village "Kot Noor" and not "Kot Keelian" and, therefore, it cannot be presumed in any way that he had the knowledge of the sale as his land was located near the land in dispute. Responding to the contention of the learned counsel for the appellant that at the time of making Talb-e-Muwathibat, the pre-emptor did not make a jumping demand. The learned counsel for the respondent argued that no particular form or modality has been prescribed for making Talb-e-Muwathibat, as held in the case of Rab Nawaz v. Anwar Ali and 4 others (PLD 2004 Lahore 784). He also placed reliance upon the judgment reported as Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 SC 883). The learned counsel for the respondent maintained that no physical jumping is necessary to prove the making of Talb-e-Muwathibat. He further contended that there is no such provision in the Punjab Pre-emption Act, 1991 and no precedent has been relied upon by the other side to prove that making of an offer to pay sale price ls mentioned in the sale-deed is necessary and what in fact is required is that after making Talb-e-Muwathibat, the pre-emptor should make Talbe- Ishhad through a notice, within 15 days. In this respect, he referred to the case of Haji Lal Shah and another v. Abdul Khaliq and another (2004 SCMR 409). The learned counsel for the respondent next contended that the vendee/appellant should prove the date of acquiring actual knowledge of sale by the pre-emptor prior to the date of knowledge mentioned in the plaint, i.e, 30-8-2004. But no such date has been proved by the vendee/appellant and it cannot be held merely on presumption that prior to 30-8-2004, Ghulam Hussain/pre-emptor had acquired the knowledge of sale. He claimed that this contention of the appellant is based merely on conjecture as only from the sowing and harvesting of the paddy crop at the same time one cannot prove the actual date, when the plaintiff/preemptor had acquired the knowledge prior to 30-8-2004. He further contended that Khalid Mahmood/P .W.2 clarified in his cross-examination that on the date of sale i.e, 24-6-2004, he was a "Registry Moharrar" at Gujranwala and not at Wazirabad, where the sale- deed was registered and as such, there is no force in the argument that he must have gained the knowledge about the registration of sale-deed through his colleagues. In fact, Khalid Mahmood/P.W .2 has categorically deposed that he had come to know of the sale in dispute on 30-8-2004. The learned counsel for the respondent maintained that the appellant could not prove that the respondent had the knowledge of the sale before 30-8-2004. He argued that the case of the vendee/appellant is quite contradictory as in his written statement, he had clearly stated that an offer was made to Ghulam Hussain/present respondent by the vendee/appellant to purchase land, but he had refused to purchase. It was also alleged that Ghullam Hussain/pre-emptor and his son Khalid Mahmood/P.W. Knew about the sale right from the date of registration i.e, 24-6-2004, as they had participated in the sale. However, while making statement before the learned Trial Court and even in the course of arguments, the stance of vendee/appellant was contradictory as he contended that when the paddy crop was sown by the vendee in the land in dispute and the land of the plaintiff being contiguous to the said land, he had acquired the knowledge of the sale.
Prior to 30-8-2004. The learned counsel for the respondent relying on the case of Ghulam Abbas and another v. Manzoor Ahmad and another (2008 SCMR 1366), next contended that the respondent was required to prove Talb-e-Ishhad by sending the notice under the registered cover (A.D.) and there is a legal presumption by virtue of section 26 of the General Clauses Act that a letter correctly addressed and sent through registered post (A.D.), had reached the addressee. He maintained that notice of Talb-e-Ishhad in this case had been sent through registered post (A.D.) within time and it was sufficient compliance of law and Talb-e-Ishhad is .Properly proved by production of notices as well by examining P.W.1/Syed Tufail Haider, Post Master. He argued that the first appellate court had held that Talbe-Muwathibat and Talb-e-Ishhad were made by the appellant/pre-emptor in accordance with law and that it has been held by the superior courts in a number of cases that the finding of the appellate court on a question of fact should be preferred to the finding of the trial Court. In this respect, he has placed reliance on the judgments reported in Muhammad Sadiq and 2 others v. Barkat Ali and 4 others (1990 CLC 533) and Board of Intermediate and Secondary Education, Lahore v. Syed Khalid Mahmood (1985 CLC 657). He further argued that the question of making of requisite Talbs is a question of tact and the finding of the appellate court on a question of fact cannot be disturbed while deciding an R.S.A. In this regard, he has placed reliance on the judgments reported in Shahzada Muzaffar Ali v. (1) Mst. Aqha Bequm and (2) Gaulam Hussain and others (PLD 1968 Lahore 372) and Khadain Hussain and others v.
Gulab and another (PLD 1954 Lahore 471). Lastly, relying on the case of Ata Ullah Khan and others v.
Mst. Surraya Parveen (2006 SCMR 1637), he argued that no misreading or non-reading of evidence has been pointed out by the learned counsel for the appellant and in the absence of any such mis reading or non-reading of evidence, a finding of fact cannot be discarded by this Court while deciding an R.S.A.
10. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record, as well as case-law relied upon by them.
11. After carefully considering the arguments, advanced from both sides, I do not feel persuaded to agree with the arguments of the learned counsel for the appellant about the failure of the respondent/plaintiff in making of Talb-e-Muwathibat as soon as he came to know about the sale in question. Merely because the land of pre-emptor/Ghulam Hussain was adjacent to the land in dispute would not ipso facto prove that he had the A knowledge of the sale right from the date of the impugned sale. To my mind as far as Talb-e-Muwathibat/Jumping demand is concerned, the relevant law does not actually stipulate any physical jump, high or low or even a short or long jump.
If we interpret the law in this way, it would mean that an old and infirm person, who is unable even to stand up or to jump (high or low) in the presence of assembly before which he received the information about the sale, would never be able to make a Talb-eMuwathibat and this would amount to depriving such person of the right of making Talb-e-Muwathibat or filing a suit for pre- emption at any time. Such an argument of a 'physical jump' and that too before this forum is certainly amazing. Talb-e-Muwathibat, which is usually called 'jumping demand' only means that as soon as the pre-emptor comes to know of the sale, he should immediately, there and then, express his intention to file a suit for pre-emption in the same assembly before which he had received the said information. The learned counsel for the respondent has rightly placed reliance on the dictum laid down in the case of Rab Nawaz v. Anwar Ali and 4 others (PLD 2004 Lahore 784), which reads as under: "S. 13 Explanation I and Note---Talbi-Muwathibat---Format and phraseology---Scope---While defining- Talb-i-Muwathibat, S. 13 of Punjab Pre-emption Act, 1991, has not prescribed any particular form, format, words, phraseology or terms to constitute Talb-i-Muwathibat nor does Explanation I of S. 13 of Punjab Pre-emption Act, 1991, has set out a mode, method, modality or manner for making Talb-i-Muwathibat---Note to S.13 of Punjab Pre-emption Act, 1991, has not restricted a preemptor to some given words which have been left to the choice, option, capacity, capability, knowledge, morality, habit, training, education and social make up of the intending preemptor."
' Similarly, it was laid down in the judgment reported in Amir Jan and 3 others v. Haji Ghulam Muhammad (PLD 1997 SC 883) that the requirements of "Talb" could be fully met if it is alleged in the pleadings and proved that the plaintiff/pre-emptor, having come to know about the sale, had declared his intention to pre-empt such sale. The said interpretation of law is further fortified in the case of Haji Lal Shah and another v. Abdul Khaliq and another (2004 SCMR 409), wherein, it was held that requirement of Talb-e-Muwathibat is satisfied if the declaration is made by the pre- emptor immediately on coming to know about the sale. After making Talb-e-Muwathibat, if notice of Talb-e-Ishhad is given within the time prescribed therein, the requirement of Talb-eIshhad, is fulfilled. Hence, it is clear that no physical jumping is necessary to constitute Talb-e-Muwathibat and, therefore, the contention of the learned counsel for the appellant in this respect is devoid of any legal force.
12. So far as the argument of the learned counsel for the appellant about offering the actual sale price to the vendee after making Talb-e-Muwathibat is concerned, there is no such provision in the Punjab Preemption Act, 1991. The next argument, advanced by the learned counsel for the appellant that Muhammad Younis/D.W-3 had admitted that the paddy crop was sown and harvested by Ghulam Hussain (vendee) and, therefore, it was evident that Ghulam Hussain had gained the knowledge of the same before 30-8-2004 as the paddy crop is sown before 30th August. However, under the law, a specific proof of the actual date of sale for making of Talb-e- Muwathibat is necessary. The argument of the learned counsel for the appellant that a presumption could be drawn about the knowledge of the sale from the sowing or harvesting of paddy crop by the vendee/appellant has hardly any force. Likewise, the contention of the learned counsel for the appellant that as P.W.2/Khalid Mahmood was working in the Registration Office as "Registry Moharrar", hence, he could have obtained the knowledge of the sale in question long ago, is also without much force as P.W.2 was posted as "Registry Moharrar" at Gujranwala and not at Wazirabad. Again, it can be a mere presumption that he might have learnt about the sale earlier through his colleagues. Needless to mention here that the court cannot base its finding on the basis of mere presumptions. It is also the case of the appellant that the pre-emptor and his son were present at the time of sale and they were asked to purchase the same, but they had shown their inability to do so. However, during the course of trial, the appellant did not claim that the present respondent and his son were present at the time of sale. Rather, he merely tried to prove that as the appellant had sown and harvested the paddy crop in the land in dispute, which was adjacent to the said land, they must have knowledge about the sale in question prior to 30-8-2004.
Both these stances are clearly self-contradictory.
13. The contention of the learned counsel for the appellant regarding non-service of notice of Talb- e-Ishhad on the appellant is also without force, as law requires that the notice should be correctly addressed and posted and should be sent through registered post (A.D.). This is a clear presumption of law that the letter/notice sent through registered cover must have reached the addressee. The notice of Talb-e-Ishhad in this case was sent by the pre-emptor through registered post (A.D.) within time. It was sufficient compliance of law and Talb-e-Ishhad was duly proved. In this connection a reference could be made to judgment reported in Ghulam Abbas and another v.
Manzoor Ahmad and another (2008 SCMR 1366), wherein, it was held that the requirement of section 13(3) of the Punjab Pre-emption Act, 1991, was to prove sending/dispatch of notice. The address of vendees was not disputed, therefore, the notice was presumed to have been delivered to the vendees by virtue of Section 26 of the General Clauses Act, 1987.
14. Furthermore, the question of making requisite "Talbs" is clearly a question of fact and finding of the learned first appellate court on a question of fact cannot be disturbed, while deciding an RSA.
In this respect, the learned counsel for the respondent has correctly placed reliance on the cases of Shahzada Muzaffar Ali v. (1) Mst. Agha Bequm and (2) Gaulam Hussain and others (PLD 1968 Lahore 372), Mst. Sarwari Begum v. Jabbar alias Lolia (PLD 1965 (W.P.) Lahore 32), Mehtab Din and others v. Malik Fazal Hussain (PLD 1954 Lahore 451) and Khadam Hussain and others v. Gulab and another (PLD 1954 Lahore 471). Finally, in this case no misreading or non-reading of the evidence, oral or documentary, has been pointed out by the learned counsel for the appellant. In the absence of such misreading and non-reading of evidence, a finding of fact, recorded by the learned first appellate court, cannot be discarded by the High Court while deciding an RSA. In this connection, I draw strength from the dictum of law laid down in the case of Ata Ullah Khan and others v. Mst. Surraya Parveen (2006 SCMR 1637), which is reproduced as under:-- "Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit- Judgment and decree passed by Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---No exception could be taken to the findings of Appellate Court and High Court on both Talbs, which were made,in accordance with law---Judgment and decree passed by High Court was based on valid and sound reasons and was entirely in consonance with the law laid down by Supreme Court---Neither there was any misreading nor non-reading of material evidence brought on record or misconstruction of facts or law."
15. For the foregoing reasons, the instant Regular Second Appeal is devoid of any merit and the same is accordingly, dismissed.
16. However, in case, the respondent has not so far deposited the remaining 2/3rd amount of consideration/sale price of Rs,29,00,000, within the time fixed by the learned. Additional District Judge, Wazirabad on account of suspension of the operation of the impugned judgment and decree by this Court, vide order dated 18-9-2007, passed in C.M.No,2/C/2007, he is directed to do so within one months from the date of announcement of this judgment.
Second .