' SAGHEER AHMAD QADRI, J.--Respondent-plaintiff Muhammad Sharif son of Rehmat filed suit for possession through pre-emption in respect of 8 Kanalas of land detail of which is given in the head note of the plaint mentioning that it was purchased by the petitioners-defendants vide Mutation No,2849 dated 30-1-1996 in consideration of Rs,90,000, however, in order to defeat the right of pre- emption of the respondent-plaintiff the price of the land was shown as Rs,2,00,000; that petitioners-defendants got the sale in secret and they did not get the possession of the land nor they issued any notice to the respondent-plaintiff in this respect; that the respondent-plaintiff for the first time on 8-5-1996 came to know about the sale in question through Muhammad Rafi son of Rehmat and he immediately at that time, place and in the same Majlis showed his intention to pre- empt the sale as he was co-sharer in the khata thus having superior right qua the petitioners- defendants; that on the next day i,e, on 9-5-1996 the respondent-plaintiff sent notices of Talb-e- Ishhad through registered acknowledgement receipts Nos.975 and 976 to the petitioners- defendants showing his intention to pre-empt the sale which notice was witnessed by Ahmed Hassan son of Naik Muhammad and Muhammad Rafi son of Rehmat that the respondent-plaintiff sought decree for possession through preemption as he claimed himself as Shafi-e-Khaleet and Shaif-i-Shareek having superior right then the petitioners-defendants. Prayed that the suit be decreed.
2. This suit was resisted by the petitioners-defendants through their written statement wherein they raised five preliminary objections about maintainability of the suit on the grounds of estoppel by his words and conduct, deficiency in court-fee as well as the suit was filed with mala fide intention.
On factual side the sale was admitted and stated that the land in dispute was purchased by the petitioners-defendants on 4-1-1996 from Muhammad Ali the vendor, paid the consideration amount and got the possession on the same day, however, the mutation was attested on 30-1- 1996; that Rs,2,00,000 was paid with bona fides the consideration amount of the land in question.
Rest of the paras on factual side were denied by the petitioners-defendants and asserted that as the respondent-plaintiff himself participated in the sale and the land was sold with his consent, therefore, he had no right to claim superior right of pre-emption. They also denied that Talb-e- Muwathibat was performed in accordance with law. Prayed that the suit be dismissed.
3. Out of the divergent pleadings of the parties the learned trial court framed the following issues:--
(1) Whether the plaintiff is estopped by his own words and conduct for filing the suit? OPD.
(2) Whether the suit is incorrectly valued for the purpose of court-fee and jurisdiction, if so, what is correct valuation? OPD.
(3) What is the effect of preliminary objection No,3 of written statement, whether defendants are entitled to incidental charges of sale? OPD
(4) Whether the plaintiff has a superior right of pre-emption qua vendee defendants? OPP
(5) Whether the ostensible sale price of Rs,2,00,000 was fixed in good faith or actually paid by the vendee to the vendor? OPD
(6) If issue No,5 is not proved, what was the market value of the suit property at the time of sale?
OPP
(7) Relief.
' Parties were directed to lead their respective evidence. Respondent-plaintiff examined Muhammad /Nil as P.W.1, Riaz Ahmed Record Keeper as P.W.2, P.W.3 Muhammad Rafi son of Rehmat, P.W.4 Ahmed Hassan son of Naik Muhammad and the respondent-plaintiff himself appeared as P.W.S. Learned counsel for the respondent-plaintiff closed his affirmative evidence after tendering in evidence Postal Receipts (Exh.P1 and Exh.P2), copies of the notices (Exh.P3 and Exh.P4) and copies of Register Haqdaran Zamin, etc. (Exh.P5 to Exh.P8). On the other hand, one of the petitioners-defendants, namely, Noor Ahmed appeared as DW-1 and his counsel while got exhibiting copies of Khasra Girdawari, Mutations, etc. (Exh.D1 to Exh.D5) closed his defence.
4. The learned trial court after hearing both sides vide judgment, and decree dated 20-12-2000 while deciding Issues No,1 against the petitioners-defendants, Issues Nos.2, 4 and 5 against the respondent-plaintiff while declaring the respondent-plaintiff having superior right qua petitioners- defendants but as Talb-e-Muwathibat' and Talb-e-Ishhad were not proved as required under the provisions of section 13(3) of the Punjab Pre-emption Act, 1991 dismissed the suit. Feeling aggrieved by that findings the respondent-plaintiff preferred an appeal which was heard and decided by the learned Additional District Judge, Multan vide judgment and decree dated 6-8-2002 whereby while setting aside the judgment and decree passed by the learned trial Court suit was remanded to the learned trial court with a direction to frame specific issue on the performance of Talbs and to decide the matter afresh in accordance with law. Having dis-satisfied over the judgment and decree dated 6-8-2002 now the petitioners-defendants preferred this civil revision.
5. Learned counsel for the petitioners-defendants argued that no doubt a specific issue about performance of Talbs by the respondent-plaintiff was not framed by the learned trial Court but both sides knowingly led the evidence in this respect and the learned trial Court while deciding Issue No,4 decided this question i,e, performance of Talbs and passed the findings against the respondent-plaintiff. Learned counsel referred Para-4 of the plaint wherein the respondent-plaintiff only mentioned that on 8-5-1996 he came to know about the sale through P.W.3 Muhammad Rafi son of Rehmat but no time, place as well as presence of the participants of the Majlis was disclosed. It is contended that as these details have not been disclosed by the respondent-plaintiff, therefore, his suit in the circumstances was not proceedable as both sides led extensive evidence about performance of `Talb-e-Muwathibate' and 'Talb-e-Ishhad'. He submits that the learned trial court thoroughly discussed this aspect under Issue No,4, therefore, non-framing of any specific issue on this question is immaterial. Learned counsel argued that in the light of judgment passed by the Hon'ble Supreme Court of Pakistan in Muhammad Suleman v. Shaukat All (2009 SCMR 678) and Haq Nawaz v. Muhammad Kabir (2009 SCMR 630) the suit of the respondent-plaintiff was not proceedable as above mentioned details of the Talbs regarding date, time and place were not given in the plaint. Learned counsel further argued that non-mentioning of these details itself is sufficient to dismiss the suit of the respondent-plaintiff. As. Far as non-framing of the particular issue is concerned learned counsel while referring judgment of the Apex Court in Fazal Muhammad Bhatti and another v. Mst.Saeeda Akhtar and 2 others (1993 SCMR 2018) argued that as material controversy has been adverted to both the parties knowingly and was also discussed by the learned trial Court under Issue No,4, therefore, there was no need to remand the matter to the learned trial court thus committed material illegality. Prayed that this civil revision be allowed and the impugned judgment and decree passed by the learned appellate court be set aside whereas the judgment and decree passed by the learned trial court be restored.
6. On the other hand, learned counsel for the respondent-plaintiff has vehemently opposed this civil revision on the grounds that admittedly no specific issue was framed on performance of Talbs and as no such issue was framed, therefore, no evidence could have been led in this respect; that the learned appellate Court rightly remanded the matter to the learned trial Court. As far as other contentions raised by the learned counsel for the petitioners-defendants, while relying on Gul Nawaz v. Gul Bazar and another (1996 MLD 1406), M.C.B. v. Syed Ahmad Saeed Kirmani (1991 CLC 140), Budhoo v. Liaqat Hussain and 18 others (1986 CLC 2958), Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Cooperative Bank Ltd., Jaranwala (1968 SCMR 804), Muhammad Akbar and others v. Zohra Begum and others (1998 SCMR 724), Faqir Muhammad v. Mst.Aziz Bibi and another (PLD 1978 Lahore 431), Fazal Mahmod and others v. Tajar Khan (1992 MLD 1439) and Azizur Rehman v. LDA (1985 CLC 2028) learned counsel for the respondent-plaintiff argued that Order XIV Rule 1, C.P.C. Clearly makes it imperative for the trial court to frame necessary issues out of the controversial questions of law and facts between the parties to be decided and as no such procedure was adopted nor any issue was framed, therefore, the remand order passed by the learned appellate court was perfectly lawful and justified. Prayed that this civil revision be dismissed.
7. I have heard the learned counsel for the parties and perused the record with their able assistance.
8. It is now settled that in a suit for pre-emption it is mandatory for the respondent/pre-emptor to prove performance of three Talbs i,e, `Talb-e-Muwathibat' , `Talb-e-Ishhad' and `Talb-e-Khusumat' to exercise his right of possession through pre-emption in respect of a sale. It is further settled by the authoritative pronouncements of Hon'ble Supreme Court of Pakistan that performance of 'Talb- e-Muwathibat while giving details of its performance i,e, date, time and place is to be given in the plaint and until and unless such details are provided in the plaint no suit for preemption is maintainable. In this respect judgment cited as Muhammad Iqbal v. Ali Sher (2008 SCMR 1682), Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302), Haji Muhammad Saleem v. Khuda Baldish (PLD 2003 SC 315) and Fazal Subhan and 11 others v. Mst.
Sahib Jamala and others (PLD 2005 SC 977) can conveniently be referred. If the plaint in this case is seen the respondent-plaintiff Muhammad Sharif in para-4 specifically agitated that: {{URDU TEXT}}
9. It is clear by mere reading of para-4 of the plaint above mentioned that the respondent-plaintiff only has given date i,e, on 8-5-1996 when he came to know the sale in question through Muhammad Rafi son of Rehmat. He did not mention the time, place and Majlis before whom he came into knowledge of the sale as well as performance of 'Talb-e-Muwathibae. No doubt no specific issue was framed by the learned trial Court placing onus on the respondent-plaintiff to prove Talbs but if evidence led by him is seen he got examined Muhammad Rafi as P.W.3 the alleged informer who informed him about the sale on 8-5-1996. This witness in his statement stated that on 8-5-1996 the petitioners-defendants came to get the possession of the disputed land and at that time Noor Ahmed, Muhammad Hussain, Muhammad Ali and Ahmed Hassan were also present and they disclosed that they had purchased the land and they were plugging the field. In the meanwhile P.W.4 Ahmed Hassan reached there and he disclosed to Muhammad Sharif, respondent-plaintiff that land has been sold in consideration of Rs,90,000 and Muhammad Sharif, respondent-plaintiff stated that he would pre-empt the sale having superior right. This witness although in his statement did not mention the time, however, during cross-examination he stated that it was 9-00 a.m. When the petitioners-defendants were plugging the field and he informed Muhammad Sharif, respondent-plaintiff about the sale. Ahmed Hassan one of the witnesses as claimed by P.W.3 Muhammad Rafi present at the spot appeared as P.W.4 and he only gave date as 8-5-1-996 and stated that the petitioners-defendants were ploughing the field when Muhammad Rafi informed Sharif that land has been sold. This witness during cross-examination throughout in his statement did not give time of performance of `Talb-i-Muwathibae . P.W.5 Muhammad Sharif, respondent-plaintiff also did not mention the time when he came to know about the sale of land and performance of Talbs. He even during cross-examination stated that - {{URDU TEXT}} ' Further during cross-examination he stated that-- {{URDU TEXT}}
10. If the notices of Talb-e-Ishhad (Exh.P3 and Exh.P4) are seen although these were denied by the petitioners-defendants that they ever received the same even otherwise if para-3 of the notices are seen it is specifically mentioned-- {{URDU TEXT}}
11. Thus the provisions of section 13(2) of the Pre-emption Act, 1991 are not shown complied with by the respondent-plaintiff.
12. As already mentioned that now it has almost been settled by the Hon'ble Supreme Court of Pakistan that a pre-emptor must disclosed the date, time and place of pronouncement of `Talb-e- Muwathibat' without any ambiguity until and unless such details are provided in the plaint the subsequent evidence to prove the performance of 'Talb-e-Muwathibat' is not acceptable. Here in this case as respondent-plaintiff did not mention the details except the date when he allegedly came to know about the sale in question through P.W.3 Muhammad Rafi and without giving other details i,e, knowledge of date, time and place of the Majlis and then performance of `Talb-e- Muwathibat' the requirement as now settled to be reflected from the plaint is not fulfilled the suit is not proceedable. In a recent un reported judgment of the Apex Court in Civil Petition No,1137 of 2008 titled Mst.Asia Bano v. Javed Akhtar their Lordships in the Hon'ble Supreme Court of Pakistan while discussing the judgments Muhammad Iqbal v. All Sher (2008 SCMR 1682), Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302) held that in the eventuality if the above mentioned details of the performance of `Talb-e-Muwathibat' are not given in the plaint even the learned trial Court is not bound to allow the pre-emptor to lead any evidence in this respect and if any evidence is led it should not be looked into even\ by the appellate Court or by the High Court. The relevant paragraph No,4 of the judgment/order of the Apex Court is hereby reproduced for facility of reference:-- "The above mentioned shows that date, time and place of making of Talb-e-Muwathibat were not mentioned in the plaint and the time and place of making of Talb-eMuwathibat were not stated even in the oral evidence produced by the respondent. It was held in Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302) Muhammad lqbal v. All Sher (2008 SCMR 1682) that the mentioning of date, time and place in the plaint of making of Talb-e-Muwathibat was mandatory and the omission to do so would be fatal to the pre-emptor's case. In the present case such details are totally lacking. Therefore, even if the petitioner/defendant had been proceeded ex parte and was not before the trial Court, the respondent's suit could not have been decreed. In Muhammad Iqbal v. Ali Sher. (supra) it was further held by this Court that in such a situation, the trial Court after examining the pleadings of the parties should not have allowed the plaintiff' to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the trial Court, it should not have been considered as evidence in the case by the appellate Court and the High Court."
13. As far as non-framing of the specific issue is concerned as already mentioned under Issue No,4 both sides consciously led evidence to pove and disprove the factum of performance of Talbs and the judgment cited by the learned counsel for the petitioners-defendants Fazal Muhammad Bhatti and another v. Mst.Saeeda Akhtar and 2 others (1993 SCMR 2018) their Lordships while discussing this aspect in para-4 of the judgment have specifically held, "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject-matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift.
The non-framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971.
SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v. Fatteh Muhammad (22 Indian Appeals 4). "
14. In the light of above discussion if the case is remanded to the learned trial Court for framing of specific issue regarding performance of Talbs no useful purpose would be achieved as in the present scenario as the performance of Talb-e-Muwathibat has not been proved in the plaint nor reflected from the evidence led by the respondent-plaintiff, therefore, the suit must have to be dismissed and the learned trial' Court rightly dismissed the same. Thus in order to save both sides from in consequential and futile practice and agony it is appropriate to allow this civil revision which is hereby allowed. The impugned judgment and decree dated 6-8-2002 passed by the learned appellate court is hereby set aside and the judgment and decree dated 20-12-200Q passed by the learned Civil Judge 1st Class, Multan is restored whereby the suit filed by the respondent-plaintiff Muhammad Sharif was dismissed. No order as to costs.