The present petitioner instituted a suit for possession through exercise of his right of pre-emption of subject land measuring 20 kanals described in the title of the suit purchased by the respondents through Mutation No. 3485 dated 24.4.2005 for a sum of Rs. 320,000/- The petitioner claimed his superior right on the basis of being a co-sharer in the joint khata and owner in the land adjacent to the subject property. The petitioner contended the performance of necessary Talbs and instituted the suit on 15.6.2005 further contending that the actual sale price of the transaction is Rs. 250,000 and in order to defeat his superior right of pre-emption a fictitious price of Rs. 320,000/- was reflected in the mutation in question.
2. The respondents contested the suit by submitting written statement. All the claims raised by the petitioner were denied by the respondents. It is pertinent to refer to the contents of Para-2 of the plaint wherein performance of Talbs was claimed by the petitioner and which were specifically denied by the respondents in para-2 of their written statement.
3. The learned Civil Judge 1st. Class Mianwali framed the following issues out of the divergent pleadings of the parties:-- ISSUES
1. Whether the plaintiff has superior right of pre-emption qua the defendants ?OPP
2. Whether the ostensible sale price was Rs. 250,000/- and same was actually paid by the defendants? OPP
3. If Issue No. 2 is not proved as positive than what was the market value of suit land at the time of sale? OPParties.
4. Whether the plaintiff has fulfilled the requirements of talbs in accordance with law? OPP
5. Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD
7. Whether the defendants incurred incidental charges, if suit of the plaintiff is decreed they are entitled to recover the same? OPD
8. Whether the plaintiff is entitled to get the decree as prayed for? OPP
9. Relief
4. The learned Civil Judge called upon the parties to produce their respective evidence. The superior right of pre-emption of the petitioner was found to have been proved by the learned Civil Judge. So was the findings regarding the performance of talbs recorded in favour of the petitioner and the learned Civil Judge vide judgment and decree dated 7.11.2008 decreed the suit in favour of the petitioner.
5. The respondents preferred an appeal against the judgment and decree dated 7.11.2008 of the learned Civil Judge before the learned District Judge Mianwali and was allowed vide judgment and decree dated 16.12.2008. The instant Civil Revision has been preferred against the judgment and decree of the learned First Appellate Court.
6. It is contended by the learned counsel for the petitioner that the superior right of pre-emption of the petitioner was established and that the necessary Talbs were also proved by the petitioner and the learned First Appellate Court after misreading the entire record illegally set aside the judgment and decree of the learned Civil Judge/trial Court.
7. The learned counsel for the respondents has opposed the arguments of the learned counsel for the petitioner by contending that the necessary Talbs were not established by the petitioner and that the learned First Appellate Court has correctly recorded the findings against the petitioner on this score. The learned counsel for the respondents particularly addressed the arguments with respect to the nonperformance of Talb-i-Ishhad by the petitioner by contending that as per latest case law pronounced by the honourable Supreme Court of Pakistan in judgments reported as MUHAMMAD BASHIR AND OTHERS VS. ABBAS ALI SHAH (2007 SCMR 1108) and BASHIR AHMED VS. GHULAM RASOOL (2011 SCM R 762) the petitioner did not produce the acknowledgment due receipt of the notices of Talb-iIshhad claimed to have been sent by him to the respondents and that the respondents having denied in the written statement the making of necessary Talbs by the petitioner, it was.bounden duty of the petitioner/ plaintiff to have proved the service of the notices Talb-i-Ishhad upon the respondents by producing postman who allegedly took the notices for delivering the same to the respondents. This having not been done by the petitioner, the Talb-i- Ishhad was not proved at all and the learned First Appellate Court has rightly accepted the appeal of the present respondents and set aside the judgment and decree dated' 7.11.2008 of the learned Civil Judge resulting into dismissal of the suit of the petitioner.
8. I have considered the arguments of the learned counsel for the parties.
9. The crucial point which plays a deciding role in the instant Civil Revision is the non-performance of Talb-i-Ishhad by the petitioner. In para-2 of the plaint the petitioner claimed to have performed both the Talbs particularly Talb-i-Ishhad by sending notices to the respondents through registered postal service on 07.6.2005. The petitioner produced notices Talb-i-Ishhad Exh.Pl to Exh.P5 and postal receipts Exhs.P6 to P10 in proof of the performance of Talb-i-Ishhad. The learned First Appellate Court in para-18 of the judgment dated 16.12.2008 made the following observations about the production of the notices of Talb-iIshhad Exhs.Pl to P5:-- "Whether respondent really got the knowledge of sale on the date he alleged or the record is giving some other answer that is also important. Copies of notices were produced as Ex.P-1 to P5. It is an admitted fact that all these notices were copies of photo copies. The study of these notices show that at the relevant portion, place for date of knowledge was kept blank and thereafter on all photo stats of the notices the date as "07.06.2005" was recorded with blue ink ball pint. When I asked from learned counsel for respondent that what was the reason that the dates were written on all the notices with blue ink pen subsequently, he was not able to furnish any logical and convincing reply.
It is not understandable that when the date of knowledge of the sale was the same then why the place was left blank and subsequently date was entered there. The only possibility can be that the notice was written and yet the date of knowledge was to be settled or the other logical reply can be that the notices sent to appellants were having no date of knowledge with blank space and subsequently coming to know this blunder, the date was written with original pen on the notices."
10. The notices were admittedly returned. It is also an admitted fact that the petitioner did not claim any acknowledgement receipts in respect of the registered notices nor any such receipts have been produced. The petitioner had also not produced the postman to prove the presentation of the notices of Talb-i-Ishhad to the respondents which were refused to have been received by them.
The honourable Supreme Court of Pakistan in the judgments reported as MUHAMMAD BASHIR AND OTHERS VS. ABBAS ALI SHAH (2007 SCM R 1105) and BASHIR AHMED VS. GHULAM RASOOL (2011 SCM R 762) has laid down the law that where a plaintiff in a pre-emption suit claims the performance of Talb-i-Ishhad by sending of notices through registered post acknowledgement due receipts to the defendants of the suit and this fact is denied by the defendants then the plaintiff of such a suit is under an obligation to prove the performance of Talb-i-Ishhad by producing the postman as well as the acknowledgment due receipt upon which report of the postman is scribed. In the instant case this important piece of evidence is lacking and therefore as per law laid down by the honourable Supreme Court of Pakistan in the above mentioned reported judgments, the plaintiff/petitioner must fail in his suit and the learned District Judge Mianwali has rightly dismissed the suit of the petitioner through the judgment and decree dated 16.12.2008. No infirmity is found in the judgment and decree passed by the learned First Appellate Court. The instant Civil Revision being devoid of any legal force is dismissed with no orders as to costs.