Through this civil revision petition under Section 115, CPC, petitioner Gohar Rasheed and two others have impugned the judgment and decree dated 29.11.2011 of the learned District Judge D.I.Khan whereby their appeal, against the judgment and decree dated 2.3.2011 of the learned Civil Judge-III, D.I.Khan was dismissed.
2. Relevant facts of the case are that the petitioners purchased suit land measuring 7 kanals from Muhammad Ayub for a sale consideration of Rs, 3,85,000/- vide sale Mutation No, 1586 attested on 20.4.2007. This transaction was pre-empted by the respondent (hereinafter to be referred as pre- emptor) by filing a pre-emption suit against the petitioners who resisted it by filing their joint written statement. Both the parties produced pro and contra evidence in support of their pleas.
After evaluating the case evidence, the learned trial Court decreed the suit vide its judgment and decree dated 2.3.2011. On appeal preferred by the appellants, the learned appellate Court concurred with the judgment and decree of the learned trial Court vide its judgment and decree dated 29.11.2011.
3. Being aggrieved from the judgments and decrees of the two Courts below, the petitioners have now impugned the same before this Court through this revision petition.
4. According to the averments of the plaint, the pre-emptor on 12.5.2007 at 10.00 a.m., while in the house of Mehboob Khan, got knowledge of the sale transaction through said Mehboob Khan and there and then he declared his intention to pre-empt the transaction.
5. Defendants resisted the suit by pleading and deposing before the Court that the pre-emptor has not performed the requisite talabs, for the enforcement of his right of pre-emption, in accordance with Section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987.
6. In order to support his case, the pre-emptor produced Muhammad Ramzan, record clerk of GPO, D.I.Khan as PW-1 who produced receipts of registries vide which the pre-emptor had sent notices of talb-e-Ishhad to the defendants. Patwari halqa was examined as PW-3 who produced copy of Mutation No, 1586 attested on 20.4.2007 embodying the transaction pre-empted by the pre- emptor as Ex.PW.3/1. He also produced Osat yaksala of mouza Rajoo as Ex.PW.3/2. Preemptor himself appeared as PW.4. He reiterated his stance which he had averred in his plaint. He produced notices addressed to the defendants as Ex.PW.4/1 to Ex.PW.4/3. Informer Muhammad Ayub was produced as PW.5, scribe of the notices was examined as PW.6, Amir Hussain and Fida Hussain were produced as marginal witnesses of the notices of talbe-ishhad as PWs-7 and 8 respectively.
7. Defendants examined Muhammad Kamran as DW-1 and Mulazim Hussain as DW-2 in support of their stance.
8. Learned counsel for the petitioners/defendants contended that the pre-emptor has totally failed to prove that he has performed his talabs in accordance with Section 13 of the Khyber Pakhtunkhwa Preemption Act 1987. Learned counsel then submitted that performance of the required talabs strictly in accordance with the provisions of the Act ibid is sine qua non for the enforcement of right of pre-emption. He contended that failure in the performance of required talabs has extinguished the right of pre-emption of the pre-emptor. He submitted that both the Courts below have mis-read the evidence available on the file qua the performance of talabs by the pre-emptor. This misreading, according to the learned counsel for the petitioners is a ground for exercise of revisional jurisdiction by this Court under Section 115, CPC for setting aside both the decrees of the Courts below.
9. On the other hand, learned counsel for the pre-emptor contended that concurrent findings of the learned two Courts below are unexceptionable as the same are based on proper appreciation of evidence of the case; that there is no mis-reading of the case evidence by the two Courts below.
He contended that the pre-emptor has performed his talabs in accordance with law.
10.I have heard learned counsel for the parties and perused the record.
11.Prime question for determination in the instant case is where the pre-emptor got knowledge about the sale transaction. This ascertainment is very much material as from disclosure of this fact the Court would come to a conclusion that whether or not the pre-emptor made his talb-e- muwathibat in accordance with law in the same meeting or sitting in which he has come to know of the sale. If it is established that the pre-emptor did not perform his talb-e-muwathibat at a place where he got knowledge of the sale transaction, then of course, his right of pre-emption would be extinguished.
12.On the touchstone of the above, I scanned the case evidence in order to know about the place where the pre-emptor got knowledge of the sale and performed his talb-e-muwathibat.
13.While appearing as PW-4, the pre-emptor deposed before the Court that he went to the house of Mehboob Ali where he got knowledge through him (underlining supplied) and thus performed his talb-e-muwathibat there. Here place of knowledge and performance of talb-e-muwathibat of the pre-emptor is the house of Mehboob Ali. In his cross-examination, the pre-emptor further says that he went to the house of Mehboob Ali as he has neither a baithak nor any chowk. But PW-5 Mehboob Ali, his informer, contradicts the pre-emptor regarding the place where he met him. PW- 5 says in his cross-examination that the pre-emptor in those days met him in `chowk'. This is a contradiction between the statement of pre-emptor and his informer. This contradiction of the two shows that the pre-emptor has not performed his talb-e-muwathibat at the place of chowk where he was informed by the PW-5 about the sale transaction. When this being so, the conclusion which this Court would draw is that the pre-emptor has failed to perform his talb-e-muwathibat in accordance with Section 13 of the Act ibid.
14. Further according to Section 13(3) of the Khyber Pakhtunkhwa Pre-emption Act, 1987, the pre- emptor shall send a notice in writing to the vendee confirming his intention to exercise his right of pre-emption. It means that at the time of sending notice to the vendee, the pre-emptor in presence of two truthful witnesses will confirm his intention earlier expressed by him in the shape of talb-e-muwathibat to pre-empt the transaction. This confirmation means that in presence of two witnesses the pre-emptor must say that on such and such date, time and place he got knowledge of the transaction and then he expressed his intention to pre-empt the transaction. Unless and until he confirms his talb-e-muwathibat in the above manner, no right of pre-emption would vest in him. I am fortified in my above view by a judgment of the Honourable Supreme Court of Pakistan reported in PLD 2002 Supreme Court 488, where their Lordships have held that: It is now well settled by the time that reference to talb-emuwasibat is necessary while making talb-e-ishhad in order to confirm that the pre-emptor is really interested in the property and wanted to enforce his right by making both the talbs, i,e, talb-e-muwasibat and talb-e-ishhad. It is equally important to note that ordinarily talb-e-muwasibat is not made before the vendee because no sooner pre-emptor acquires knowledge that the property on which he has a right of pre-emption has been sold by the vendor, he without wastage of time in presence of the witnesses is bound to make talb-e-muwasibat which is also known jumping talb, therefore, when he will perform the second demand i,e, talb-e-ishhad he should attribute such words which would be sufficient to gather his intention that earlier too he has already made talb-e-muwasibat".
15.In light of the above dicta, if we look at the talb-e-ishhad of the pre-emptor, neither he has ever referred to his first demand at the time of sending notices to the defendants nor his witnesses to the said notices deposed before the Court that the pre-emptor did refer to his talb-e- muwathibat at the time when notices were scribed in their presence. This non-observance of the statutory obligation is sufficient to lead this Court to believe that the pre-emptor has not confirmed his talbe-ishhad in accordance with law. Section 13 of the Act is penal in nature and non- adherence to its strict application would extinguish the right of pre-emption of a pre-emptor. The August Supreme Court of Pakistan in a judgment reported in 2005 SCM R 1231 has held that: "(c) Pre-emption.... Right of pre-emption is a feeble right, thus, its existence and enforcement must be strictly proved.
(d) Punjab Pre-emption Act (IX of 1991)
S.13----Talbs, performance of---Fundamental requirement for enforcement of right of pre- emption---Pre-emptor must prove performance of Talbs through clear evidence--Without fulfilling requirement of Talb-e-Muwathibat and Talb-e-Ishhad in proper manner, right of pre- emption would be extinguished--Principles.
The pre-emptor must prove the performance of talbs through clear evidence, which is the fundamental requirement for enforcement of right of pre-emption under the Punjab Preemption Act 1991 and also under Muslim Law of Pre-emption. The statutory law is based on the concept of Muslim Law. of Preemption, according to which without fulfilling the requirement of talbs namely Talb-e-Muwathibat and Talb-eIshhad in proper manner, right of pre-emption is extinguished and Talb-e-Muwathibat must be made immediately on coming to know about the sale. Talb-e- Muwathibat is a first and immediate demand by the pre-emptor to make a proclamation and pronouncement of his intention to exercise right of pre-emption and talb-e-ishhad is second demand, which must be established to have been made, in the manner, it is required to be made under the law".
16.As the pre-emptor has not exercised his talabs in accordance with Section 13 of the Khyber Pakhtunkhwa Pre-emption Act 1987, therefore, his right of pre-emption stands extinguished.
17.For what has been discussed above, I accept this revision petition, set aside the impugned judgments and decrees of the learned two Courts below and dismiss the suit of the respondent/plaintiff.