This judgment would dispose of Civil Revision No, 251 of 2006 challenging the judgment and decree dated 10.02.2006 passed by the learned Additional District Judge, Jhelum whereby while accepting the appeal, he set-aside the impugned judgment and decree of the learned trial Court and dismissed the suit of the plaintiff/present petitioner.
2. The relevant facts for the disposal of this civil revision are that the present petitioner filed a suit for pre-emption on 05.03.1990 i,e, during the interregnum period between 31.07.1986 and 28.03.1990 i.e the date when the first Ordinance on the subject (Punjab Ordinance XVIII of 1990) was promulgated. The suit was filed on the basis of a co-sharer (Shafi-e-Sharik). In para 5 of the plaint, it was mentioned that as soon as the plaintiff came to know about the sale, she made Talb- eMuwathibat and then made Talb-e-Ishhad through the witnesses. The suit was resisted by the defendant who filed the written statement. However, on 21.04.1991, the learned Senior Civil Judge, Jhelum, vide judgment and decree dated 21.04.1991 dismissed the suit on the basis of a case law report in Muhammad Ismail Vs. Sakeena Bibi (PLD 1991 Lahore 60). The reasons prevailed with the learned trial Court was that since the suit was filed on 05.03.1990, so at that time there was no statutory law regarding pre-emption on the basis of which the plaintiff could have claimed the right of pre-emption. The said judgment and decree was challenged through RFA No, 34 of 1991 before this Court. The learned Division Bench of this Court vide its judgment dated 24.07.2001 accepted the appeal and remanded back the case to the learned trial Court. In the said judgment, it was observed by the learned Division Bench of this Court that the sale had taken place on 02.04.1989 and the suit was filed on 05.03.1990 and the learned trial Court had not only failed to read the said pleadings but had completely misunderstood the law laid down by this Court in case of Muhammad Ismail Vs. Sakina Bibi (PLD 1991 Lahore 60). It was further observed that in the present case the right was claimed on a ground recognized in the said judgment of Said Kamal Shah to be a valid ground for filing a suit for pre-emption and performance of Talbs was alleged. It was also observed that it is true that Section 13 of the Punjab Pre-emption Act, 1913 stood nullified but then the suit having been filed before the judgment in the case of Haji Rana Muhammad Shabbir Ahmad Khan Vs. Government of Punjab Province, Lahore (PLD 1994 SC 1) had taken effect is protected by the saving clauses in the several Ordinance and ultimately the Punjab Pre-emption Act, 1991 itself. After the remand of the case once again, the suit was taken up by the learned trial Court. The issues were framed, evidence was recorded and the learned trial Court vide judgment and decree dated 29.07.2004 decreed the suit on the basis of its findings on Issues No, 1 to 3 & 6. It is appropriate to reproduce the issues framed by the learned trial Court:--
1. Whether the plaintiff made the Talbs of Shufa as required by law before instituting the present suit?OPP.
2. Whether the plaintiff has right of pre-emption against the defendant regarding the suit land?
OPP.
3. Whether the ostensible sale price of Rs, 3,50,000/- was fixed in good faith or actually paid? OPD.
4. If the Issue No, 3 is not proved in affirmative then what was the market value of the suit land at the time of its sale? OP Parties.
5. Whether the plaintiff is estopped from bringing the present suit by her words and conduct? OPD.
6. Whether the defendant is entitled to recover the incidental charges for transfer of the suit land, if the suit is decreed in favour of the plaintiff, if so, to what extent? OPD.
7. Whether the defendant is entitled to recover the compensatory costs U/S 35-A of CPC? OPD.
8. Relief.
Feeling aggrieved by the judgment and decree dated 29.07.2004 passed by the learned Civil Judge, Jhelum, the defendant preferred the appeal. The learned Additional District Judge vide judgment dated 10.02.2006 accepted the appeal and dismissed the suit. The reasons prevailed with the learned Additional District Judge for dismissing the suit are contained in para 6 of the judgment. The learned appellate Court came to the conclusion that the suit was instituted on 05.03.1990, when there was no law of pre-emption in the field. It was also observed that the saving clause i,e, 35(2) of the Punjab Pre-emption Act, 1991 provided that the time limitation for the suit instituted during the interregnum period would be one year and with regard to Talbs, it was sufficient to prove Talb-e-Ishhad in presence of two truthful witnesses. However, the learned appellate Court came to the conclusion that the said provision of Section 35(2) of Punjab Pre- emption Act, 1991 has been declared repugnant to injunctions of Islam (PLD 1991 FSC 80) and the same was affirmed by the August Supreme Court (PLD 1994 S.C. 1) and the said repugnancy was to take effect from 31.12.1993 and since the present suit was not decided till 31.12.1993 and so the plaintiff was required to make both the Talbs i,e, Talb-e-Muwathibat and Talb-e-Ishhad and the limitation period would be four months instead of one year and so the suit was barred by time and the Talbs could also not be proved. Feeling aggrieved, the present civil revision has been filed
3. The learned counsel for the petitioner contended that the learned appellate Court had misunderstood the law and it would not to be seen that the suit was pending but the material point is that as to when the suit was filed. If it was filed during the interregnum period, the saving clause i,e, Section 35(2) of the Punjab Pre-emption. Act, 1991 was very much available to the plaintiff, which provide the period of one year and it was sufficient that the Talb-e-Ishhad was made in presence of two witnesses. In this behalf, he has placed reliance on the cases of Muhammad Aslam and others Vs. Muhammad Shafi (1995 MLD 441), Muhammad Usman etc. Vs. Khushi Muhammad etc. (NLR 2002 Civil 109), Haji Noor Muhammad Vs. Abdul Ghani and 2 others (2000 SCMR 329), Wall Muhammad Vs. Sairur-Rehman (2004 CLC 610), Jameel Ahmad Vs. Liaqat Ali (2003 CLC 229).
4. On the other hand, the learned counsel for the respondents supported the impugned judgment and decree of the learned appellate Court and contended that even if the saving clause of Section 35(2) of the Punjab Pre-emption Act was applicable in the present case, even then Talb-e-Ishhad was not made in accordance with law.
5. Arguments heard. Record perused.
6. There is no denial of the fact that the suit was filed on 05.03.1990 and Section 35 (2) of the Punjab Pre-emption Act, 1991 provides notwithstanding anything in Sections 13 and 30, in respect of the suits mentioned in sub-section (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor established that he had made Talb-e-Ishhad in the presence of two truthful witnesses. In a case reported in PLD 1994 SC 1, the repugnancy was to take effect from 31.12.1993 and not before that. In the present suit to the extent of limitation, the said judgment is not applicable since the present suit was filed prior to the taking effect of repugnancy. In this way, the learned appellate Court had committed illegality by declaring the suit of the plaintiff to be barred by time. The reference may be made to the cases of Muhammad Aslam and others Vs. Muhammad Shafi (1995 MLD 421) and Muhammad Usman etc. Vs. Khushi Muhammad etc. (NLR 2002 Civil 109) in which almost the same proposition was taken into consideration. Now coming to the conclusion that Section 35(2) of the Punjab Pre-emption Act 1991 was available to the plaintiff, since he had filed the suit on 05.03.1990 then obviously the plaintiff was not required to prove Talb- e-Muwathibat, so there is no need to make any discussion on this point. However, the said saving clause provides that it was sufficient if the pre-emptor makes the Talb-e-Ishhad in presence of two truthful witnesses. The word used is "making of Talb-e-Ishhad" in presence of two witnesses and not through two truthful witnesses. In the plaint, the plaintiff had alleged that he had made the Talb-e-Ishhad through witnesses but it had not been mentioned in the plaint that Talb e-Ishhad was made in presence of two truthful witnesses. Talb-e-Ishhad means making of demand from the vendee in presence of two truthful witnesses. On the point of Talb-e-Ishhad, the evidence available on the record shows that there were two witnesses of Talb-e-Ishhad namely Muhammad Muzaffar PW-3 and Abdul Majeed PW-4. They both deposed that they were sent by the plaintiff to the defendant and they both went to the defendant and delivered the message of the plaintiff to the defendant who refused to hand over the house. Now these statements clearly show that Talb- e-Ishhad was made by the plaintiff through the witnesses and not in presence of the witnesses, which is the requirement of law. Even PW-2 the plaintiff herself deposed to the same effect that she sent Muhammad Muzaffar and Abdul Majeed to the defendant. In this way, the plaintiff has failed to prove that she had made Talb-e-Ishhad in presence of two witnesses and at the most she only succeeded in proving that she made Talb-e-Ishhad through the witnesses which is not the requirement of law. The requirement of law is that the demand should be made by the plaintiff from the vendee in presence of two truthful witnesses and so to the extent of Talb-e-Ishhad, the plaintiff has failed to prove that she had made Talb-e-Ishhad in presence of two truthful witnesses provided in Section 35(2) of the Punjab Pre-emption Act, 1991 and on that account also, the suit of the plaintiff is liable to be dismissed.
7. In view of what has been said above, this civil revision has no force and the same stands dismissed.