' SAGHEER AHMAD QADRI, J.--Respondents-plaintiffs Muhammad Shoaib son of Muhammad Afzal and Falak Sher son of Khan Muhammad filed suit for possession through pre-emption in respect of 82-kanals of land detail of which is given in head note of the plaint. It was averred in the plaint by the respondents-plaintiffs that Riaz Hussain son . Of Ghulam Hussain original owner of the -land in dispute sold the same vide Mutation No, 760 dated 19-2-1996 in consideration of Rs,5,00,000 however, in order to defeat the right, of preemption of the petitioners-defendants its fictitious price was shown as Rs,8,50,000; that no notice whatsoever of sale was ever issued to the respondents- plaintiffs; that respondents-plaintiffs came into knowledge of the sale on 3-3-1996 at paishi waila through Ghulam Raza son of Muhammad Mumtaz P.W.5 when they were present at their Daira and they immediately pronounced their intention to pre-empt the sale. Subsequently notices Talb-e- Ishhad dated 4-3-1996 were sent after performance of Talb-e-Muwathibat. Respondents-plaintiffs claimed their superior right of pre-emption being Shafi Shareek, Shaft Khaleet and Shafi Jar and prayed that suit be decreed. This suit was resisted by the petitioners-defendants by filing their written statement whereby ten preliminary objections were raised about the maintainability of the suit being devoid of any cause of action, and non-performance of Talbs etc. Petitioners- defendants also claimed incidental charges incurred on the attestation of the mutation. On factual side it was averred that total price of land as Rs,12,25,000 was paid along with expenditures etc. Rest of the assertions made by the respondents-plaintiffs were refuted by the petitioners- defendants. Prayed for dismissal of the suit.
2. Out of the divergent pleadings of the parties, learned trial court framed the following issues:- ISSUES:
(i) Whether the plaintiffs have superior rights of pre-emption qua the defendants-vendees? OPP
(ii) Whether the land was sold for the consideration of Rs,5,12,500 and the ostensible sale price of Rs,8,50,000 were entered , in the mutation? OPP
(iii) If above issue is not proved what was the market value of the suit-land? OPP
(iv) Whether the plaintiffs have performed the Talbs in accordance with law? OPP
(v) Whether . The suit is not maintainable being of partial preemption? OPP
(vi) Whether the defendants had paid any additional charges in shape of maintenance, repair of electricity, if so, to what amount and its effect? OPP (vii)Whether the defendants vendees are entitled to recover incidental charges in case the suit is decreed against them, if so, to what amount ?OPP
(viii) Whether the suit is barred by time? OPD
(ix) Whether the plaintiffs' are estopped to sue? OPD
(x) Whether the suit is mala fide and liable to dismissal with compensatory cost under section 35- A of C P. C. ? OPD
(xi) Relief
3. Parties led their evidence. Respondents-plaintiffs examined Muhammad Azmat, Clerk of Muhammad Hussain, Advocate who prepared notice Talb-eIshhad Exh. P-1 to Exh. P-6 which subsequently were sent to the petitioners-defendants, Falk Sher, one of the respondents-plaintiffs appeared as P.W.2 and stated that he came into knowledge of the sale when he was present in his house along with Shoaib, when Ghulam Raza P. W.5 reached there and disclosed about the sale. He further stated that date of information was 13th of the month and he later on, on the next day sent notice Talb-eIshhad to the petitioners-defendants. Ghulam Raza, informer, appeared as P.W.5 and stated that about 4 years and 6 1/2 months prior to making his statement, he met Muhammad Yousaf petitioner-defendant who disclosed about the purchase of land and subsequently on the same day he informed one of the respondents-plaintiffs Falk Sher about the factum of sale. Later on it was demanded by the respondents-plaintiffs from the petitioners-defendants that after receipt of sale price Rs,5,00,000, land be returned but he refused. P. W.6 Mian Ghaus stated that about 4 years and 6 1/2 months prior he came to Kachehry along with respondents-plaintiffs and six notices Talb-e-Ishhad were signed by him. Learned counsel for the respondents-plaintiffs vide statement dated 20-9-2002 while getting exhibited postal receipts Exh.P-7 to Exh.P-12, copy of impugned mutation Exh.P-13, Fard Jama Bandi for the year 1992-93 Exh.P-14, Register Haqdaran Zamin for the year 1992-1993 Exh. P-15 and Exh. P-16, copy of Kasra Girdawri Exh.P-17 closed the affirmative evidence.
4. On the other hand, petitioners-defendants examined Kazim Hussain as DW-1 Aziz Akhtar as DW- 2, Zulfiqar Ali as DW-3, Muhammad Sher as DW-4, Nadir Muhammad as DW-5, Muhammad Zafar Ullah as DW-6 and Ghulam Yousaf, one of the petitioners-defendants as DW-7 whereby all the assertions made by the respondents-plaintiffs about the sale, its price and issuance of notice Talb-e-Ishhad were refuted.
Learned counsel for the petitioners-defendants vide statement dated 6-2-2002 while getting exhibited electricity bills Exh.D-7 to Exh.D-9, closed the evidence. In rebuttal, respondents-plaintiffs' counsel got exhibited documents Exh.P-18 to Exh.P-26, copy of different mutations and closed the evidence.
5. Learned trial court while deciding issues Nos.1 and 4 against the respondents-plaintiffs and remaining against the petitioners-defendants dismissed the suit as Talbs required under the law were not proved by the respondents-plaintiffs vide judgment and decree dated 4-2-2003. Feeling aggrieved, respondents-plaintiffs preferred appeal which was heard and decided by the learned Addl. District. Judge, Sargodha who vide impugned judgment and decree dated 21-5-2004 while reversing the findings of the learned trial court on issues Nos.1 and 4 decreed the suit, hence this revision petition.
6. Learned counsel for the petitioners-defendants contends that the respondents-plaintiffs in para No,2 of the plaint specifically alleged that they came into knowledge of the sale on 3-3-1996 at paishi waila while present at their Daira through Ghulam Raza P.W.5; that in order to discharge the onus of issue No,4, respondents-plaintiffs examined said Ghulam Raza P.W.5 while one of the respondents-plaintiffs Falk Sher appeared as P. W.2 who did not specifically mention the date when he came into knowledge of the sale and performed Talb-e-Muwathibat. He in his statement gave the date of the receipt of information and performance of Talbs as 13th of the month; that the informer Ghulam.
Raza in his statement did not give any date rather he stated that about 4 years and 6-1/2 months prior to getting record his statement, he informed the respondents-plaintiffs about the sale and they performed Talb-e-Muwathibat; that these aspects were considered by the learned trial court and found that. Talbs were not performed and suit was dismissed but the learned appellate court without any lawful justification only on presumption and basing upon certain calculations of its own reached at a conclusion, not supported by any of the evidence, that Talb-e-Muwathibat was performed and reversed the findings. Learned counsel while referring the statements of the witnesses, findings of the learned trial as well as learned appellate court argued that findings reversed by the learned appellate court are not sustainable in the eye of law and it is a clear case of misreading and non-reading of evidence rather mis application of law, hence liable to be reversed. Prayed that revision petition be allowed and impugned judgment and decree passed by the learned appellate court dated 21-5-2004 be reversed while setting aside the findings on issues Nos.1 and 4.
7. Contrary learned counsel for the respondents-plaintiffs has supported the judgment and decree passed by the learned appellate court on the ground that learned trial court did not appreciate the evidence available on record which was corrected by the learned appellate court after due evaluation of the evidence; that as the respondents-plaintiffs were illiterate persons therefore, it cannot be expected that they may state before the court in mathematical manner; that the calculation arrived at by the learned appellate court and subsequent result drawn are lawful and justified which cannot be interfered in revisional jurisdiction. Prayed that this petition be dismissed.
8. I have heard the learned counsel for the parties and perused the record.
9. Admittedly if para No,2 of the plaint is seen, respondents-plaintiffs specifically mentioned that they came into knowledge of the sale on 3-3-1996 at paishi waila time present at the Daira of respondent/plaintiff No,2 through Ghulam Raza son of Muhammad Mumtaz P.W.5 and they pronounced their intention to preempt the sale having superior right in this respect. Learned trial court cast issue No,4 which was pivotal to dispose of the present controversy while placing the onus on the respondents-plaintiffs to prove the performance of Talbs as required under section 13(2)(3) of the Punjab Pre-emption Act.
10'. Respondent-plaintiff No,2 Falk Sher appeared as P.W.2 before the learned trial court and he stated that he was present at his house along with Shoaib, respondent No,1 at paishi waila time when Ghulam Raza P.W.5 reached there and disclosed that he was told by Yousaf, one of the vendees/defendants, that they had purchased the land in dispute and at that time they (respondents/plaintiffs) pronounced their intention to pre-empt the sale. During his statement he further clarified without giving detail about month or year that it was 13th of the month when he was provided this information. The exact words used by P.W.2 Falk Sher are K.L.. {{URDU TEXT}} ' Informer P.W.5 Ghulam Raza instead of giving any specific date about providing information to the respondents-plaintiffs stated that about 4 years and 6-1/2 months back he informed them about the impugned sale at their Daira and they pronounced Talb-e-Muwathibat. He did not give any detail. To corroborate the statement of P.W.5 Ghulam Raza, Mian Ghaus (wrongly shown as P.W.5) who allegedly signed notices Talb-e-Ishhad, was examined by respondents/plaintiffs. Like P.W.5 Ghulam Raza, informer, this witness also gave the time lapsed between his statement and issuance of notices Talb-e-Ishhad as 4 years 6-1/2 months as stated by P.W.5.
11. Onus to prove issue No,4 was placed on respondents-plaintiffs and they were bound to discharge the same by leading cogent, unambiguous and unimpeachable evidence. It is now settled that performance of Talbs is "sine qua non" for exercising of claim even superior right of pre-emption. It has since been settled by the Hon'ble Supreme Court of Pakistan in an authoritative pronouncement cited as 'Mian Peer Muhammad and others v. Faqir Muhammad (PLD 2007 Supreme Court 302) that non-recording of date, time and place of performance of Talb-e- Muwathibat and subsequent issuance of notice Talb-eIshhad are fatal to exercise superior right of pre-emption. Ratio underlying the verdict is that in first instance if performance of Talbe- Muwathibat in unambiguous and clear terms is incorporated in the plaint then limitation period can be calculated in respect of performance of Talb-e-Ishhad and Talb-e-Khasumat, the two subsequent Talbs. The second aspect and reasoning for recording the performance of these Talbs by giving exact date, time, place and .Majlis are that prospective pre-emptor then subsequently during trial while leading evidence has to discharge the onus of issue framed on this subject and he has to prove by leading evidence so that Court may come to clear and positive conclusion that these Talbs were performed under section 13(2)(3) of the Punjab Pre-emption Act. In a judgment cited as 'Muhammad Yousaf v. Muhammad Rafique and others' (PLD 2006 Lahore 39), this Court while keeping in view the leading judgments passed by the Hon'ble Supreme Court of Pakistan observed:- "It may be mentioned that the provisions of section 13 of Punjab Pre-emption Act, 1991 can only be regarded to have been complied with when all steps of performance of Talbs preceding the filing of the suit are duly peiformed. In 'Haft Muhammad Saleem v. Khuda Bakhsh' (PLD 2003 Supreme Court 315) it was held that "Moreover, the question of Talb-i-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. The latter might exist but is useless unless the former is performed Had Talb-eMuwathibat been a 'mere technicality, this court in Said Kamal Shah's case PLD 1986 Supreme Court 360 would never have gone to the extent of saying that Talb-e-Muwathibat was so. Important that it had to be asserted and exercised despite the fact that the then prevailing laws of preemption never contained any provision qua 7blb-e-Muwathibat or Talb-e-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre emptors in the country were non-suited because of non- assertion and performance of Talb-e-Muwathibat though not required by the then prevailing pre- emption laws in the country. What we want to emphasize is that Talb-eMuwathibat, should not be taken lightly and should not be considered as a mere technicality. Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of a right of pre-emption." (Portion underlined by me for emphasis). In Akbar Ali Khan and others v. Mukamil Shah and others' (2005 SCMR 431) the legal position has again been reiterated."
12. Learned Addl. District Judge if the impugned judgment dated 21-5-2004 is seen, did not follow the verdict "passed by the Hon'ble Supreme Court of Pakistan as well as by this Court on the question of performance of Talb-e-Muwathibat and tried his best, reasons known to him, to prove that Talb-e-Muwathibat was performed by the respondents-plaintiffs although onus of issue No,4 was not discharged by them. Reasoning adopted by the learned Addl. District Judge' in this respect was not supported by evidence available on record and in my opinion it is a classical example of misreading and non-reading of evidence available on record which is a pre-condition for exercise of revisional jurisdiction, hence while allowing this petition, findings arrived at by the learned Addl.
District Judge on issues Nos.1 and 4 in the impugned judgment are reversed while that of learned trial court are upheld. Resultantly suit of the respondents-plaintiffs is dismissed with cost throughout.