SAGHEER AHMAD QADRI, J. --- Petitioner-plaintiff Jehangir Khan son of Ghulam Haider Khan filed suit for possession through pre-emption to pre-empt the sale of land measuring 15 kanals, 10 marlas situated at Moza Mangyal, Tehsil Fateh Jang District Attock, subject-matter of mutation No. 934, dated 11.2.1999 mentioning the facts in the plaint that his real sister Mrs. Shehla Haider sold land above-mentioned in consideration of Rs. 1,00,000/-. However, in order to defeat the right of pre-emption of the petitioner-plaintiff its fictitious price was showrr as 3,10,000/-; that sale was kept secret and no prior notice whatsoever was issued nor it was brought into the knowledge of the petitioner-plaintiff; that on 22.3.1999 at 10:00 a.m. Petitioner-plaintiff was present in his "Baithak" alongwith Muhammad Aslam son of Jahan Dad, Muhammad Sadiq Khan son of Nawazish Khan and Muhammad Ashraf .Son of Lal Khan when at that time Umar Hayyat Khan son of Najeeb Khan resident of Mailoo reached there and disclosed about the sale; that at the same time in the presence of above-mentioned persons/witnesses petitioner-plaintiff performed talb-imuwathebat showing -his intention to pre-empt the sale having preferential right as "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar"; that subsequently petitioner-plaintiff on the same day i.e. 22.3.1999 at 3:00 p.m. Went to the land in dispute and pronounced his right to pre-empt the sale. He on the next day- i.e. 23.3.1999 alongwith above-mentioned witnesses went to defendant-vendee at Islamabad through Major Makhdoom Hussain son of A.I Muhammad and asked him to transfer the land in his name after getting the price but he declined; that subsequently he sent notice of talb-i-ishhad on 25.3.1999 vide registered letter No. 242. Petitioner-plaintiff claimed the pre-emption of the land on the basis of superior right being "Shafi Shareek", "Shafi Khaleet" and "Shafi Jaar". Suit was resisted by the respondent-defendant by filing his written statement, wherein he raised four preliminary objections about the maintainability of the suit on the ground of estoppal, non-performance of talb-imuwathebat and talb-i-ishhad as well as filing of the suit with ma/a fide. On factual side, sale was admitted, however, it was agitated that sale price was paid with bona fide, that petitioner-plaintiff was in the knowledge of the sale and all the other assertions were denied by the respondent-defendant. Out of the pleadings of the parties learned Trial Court framed the following issues:- (1). Whether the plaintiff is estopped by his words and conduct to file the suit? OPD
(2) Whether the suit has not been properly valued for the purpose of Court-fee, if so what is its correct valuation? OPD
(3) Whether a sum of Rs. 3,10,000/- was bona fidely fixed and paid as sale price? OPD
(4) If Issue No. 3 is not proved what was the correct valuation of the disputed property at the time of impugned transaction? OP Parties.
(5) Whether the plaintiff has completed tallabs under the provision of law? OPP
(6) Whether the plaintiff has superior right of preemption as against the defendant? OPP
(7) Relief.
2. Parties were directed to lead their respective evidence: Petitioner-plaintiff himself appeared as PW-1 and he examined Muhammad Sadiq Khan, Muhammad Ashraf and Muhmmad Fazil Patwari as PW-2, PW-3 and PW-4 respectively. Learned counsel for the petitioner-plaintiff closed the evidence while getting exhibited copy of mutation No. 934, dated 11.2.1999 (Exh.P2), copy of Jamabandi for the year 1993-1994 (Exh.P3.) and postal receipt as Exh.P4.
3. On the other hand, respondent-defendant himself appeared as DW-1 and his learned counsel closed the evidence. Learned Trial Court after hearing the parties vide judgement and decree dated 31.10.2002 while deciding issue No. 5 against the petitioner-plaintiff, issue No. 1 against the defendant, Issue No. 2 in favour of defendant and remaining issues against. The defendant- respondent dismissed the suit as he found that Talabs were not proved performed according to law. Feeling aggrieved petitioner-plaintiff preferred an appeal, which was heard and decided by the learned ADJ, who while upholding the findings on all the issues dismissed the same vide impugned judgment & decree dated 4.12.2002. Feeling aggrieved petitioner-plaintiff has preferred this civil revision.
4. Learned counsel for the petitioner-plaintiff contends that the findings of the learned Trial Court on Issue No. 5 are against law and facts of the case; that learned ADJ in Para 10 of the judgment wrongly presumed that as vendor was the real sister of the petitioner-plaintiff, therefore, he must have been in the knowledge of the sale; that the factum of handing over of the possession was wrongly presumed by the learned ADJ although the respondent-defendant in his statement admitted that he did not get the possession; that non-examination of informer Umar Hayyat Khan in view of the overwhelming evidence available on record through the statements of petitioner- plaintiff and his witnesses was not fatal for proving the date of knowledge of the sale and performance of talb-e-muwathibat and adverse presumption was wrongly taken against the petitioner-plaintiff while applying Article 129(g) of Qanoon-e-Shahadat Order, 1984; that as far as performance of Talb-e-lshhad is concerned, copy of notice of Talb-e-lshhad (Exh.P3) and postal receipt (Exh.P4) are sufficient to prove the same; that the carbon copy of the original is presumed primary copy/evidence under Article 73 of Qanoon-e-Shahadat Order but both the learned Courts below wrongly held it a copy of the original and taken it as secondary evidence. Learned counsel while relying on PLD 1987 Lahore 523 (State v. Zulfiqar A.I Bhutto) argued that carbon copies are always treated as primary evidence; that even otherwise receipt Exh.P4 clearly found mentioned the word acknowledgement due, therefore, the petitioner-plaintiff performed his part of duty as he posted out the notice of Talb-e-Ishhad accordingly and he was not duty bound to prove if notice was ever received by the respondent-defendant or otherwise; that both the learned Courts below did not advert to these aspects; that performance of talb-e-muwathebat and talb-e-lshhad was proved on record as no objection was raised when notice of Talb-e-lshhad (Exh.P3) and postal receipt (EXh.P4) were exhibited. In these circumstances, findings of the learned Trial Court as well as learned first Appellate Court on Issue No. 5 were result of misapplication of law and facts and result of misreading and non-reading of evidence available on record. Prayed that these findings be reversed and suit filed by the petitioner-plaintiff be decreed accordingly.
5. On the other hand, learned counsel for the respondent -defendant has vehemently opposed the arguments advanced by learned counsel for the petitioner-plaintiff on the ground that admittedly petitioner-plaintiff was the real brother of vendor Mrs. Shehla Haider and he must have been in the knowledge of sale; that petitioner-plaintiff claimed that he came into knowledge of the sale on 22.3.1999 at 10:00 a.m. When Umar Hayyat Khan son of Najeeb Khan disclosed the factum of sale to him in the presence of other witnesses; that source of knowledge has not been examined thus an important link was missing which tact has been taken into consideration by both the learned Courts below while deciding Issue No. 5 against the petitioner-plaintiff; that performance of Talb- e-Ishhad was also not proved as no acknowledgement due receipt was brought on record nor any postman who allegedly delivered notice of Talb-e-Ishhad to the respondent-defendant was examined; that defendant-respondent specifically denied receipt of any such notice, therefore, onus lies heavily on petitioner-plaintiff to prove this fact; that both the learned Courts below thus rightly held that performance of Talb-e-Ishad Ishhad was not proved on record. Even otherwise, a copy of notice of Talb-e-lshhad was produced being a secondary evidence, until & unless all the pre-requisites are complied with for adducing the secondary evidence, this copy cannot be .Taken into consideration, thus both the learned Courts below rightly disbelieved the performance of. Talb-e-Ishhad. While relying on 2004 MLD 1682 (Muhammad Aslam Parvez v. Mrs. Waheeda Anwar and others), 2007 SCMR 1105 (Muhammad Bashir and others v. Abbas A.I Shah), 1994 CLC 1297 (Ahsan Elahi v. Malik Nasrullah), PLD 2001 Lahore 194 (Ch. Abdul Majeed v. Ch. Lnayat A.I and 4 others), 2003 CLC 1775 (Amin-ud-Din v. Mrs. Zarina), 2002 SCMR 235 (Muhammad Mal Khan v. Allah Yar Khan), 2006 YLR 2995 (Muhammad Yar v.
Muhammad Arif and 6 others), NLR 2005 Civil 174 (Akhtar Nawaz, etc. v. Muhammad Nazir, etc.) and 2005 SCMR 1231 (Muhammad Siddique v. Muhammad Sharif and others) prayed that this revision petition be dismissed.
6. I have considered the arguments advanced by learned counsel for the parties and have gone through the file.
7. Learned counsel for the petitioner-plaintiff mainly concentrated only arguing on Issue No. 5 i.e. To prove the performance of Talabs as required under Section 13 of the Punjab Pre-emption Act, 1991. If the plaint in this case is seen, in para 2 the plaintiff-petitioner has mentioned that defendant- respondent kept the saki secret, however, on 22.3.1999 at 10:00 a.m. He was present alongwith Muhammad Aslam son of Jahan Dad, Muhammad Sadiq Khan son of Nawazish Khan and Muhammad Ashraf son of Lai Khan when at that time Umar Hayyat Khan son of Najeeb Khan resident of Mailoo reached there and disclosed that land had been transferred in the name of defendant and plaintiff-petitioner at the same moment in the presence of above-mentioned witnesses claimed his intention to preempt the sale being co-sharer as well as his land was, contiguous to the land subject matter of the present suit as it has also joined passage, with his own land. The plaintiff-petitioner when appeared as PW-1 he reiterated his stand mentioned above about the date, time and place' of knowledge of sale, whereafter, he performed his talb-e- muwathibat. PW-2 Muhammad Sadiq and PW-3 Muhammad Ashraf also stated so. PW-3, however, did not mention the place where he was sitting. Anyhow, all the three above-mentioned witnesses including plaintiff-petitioner as PW-1 claimed that factum of sale came into their knowledge through Umar Hayyat Khan son of Najeeb Khan. Admittedly, said Umar Hayyat Khan was not examined by the petitioner-plaintiff as witness. Both the learned Courts below while deciding Issue No. 5 specially the question of talb-e-muwathebat observed that vendor Mrs. Shehla Haider was the real sister of the petitioner-plaintiff and his claim that he was not in knowledge of sale prior to 22.3.1999 could not be believed. Anyhow in this context it was observed that if it was claimed by the petitioner-plaintiff that he for the first time came into knowledge of the sale on 22.3.1999 through Umar Hayyat Khan son of Najeeb Khan then his examination in this respect was essential.
Admittedly, performance of talbe-muwathebat is the starting point for claiming a right of preemption in respect of a sale. Until & unless talb-emuwathebat is proved nobody can claim this right as performance of talb-e-ishhad. Factum of sale coming into knowledge of a person is a fact as defined under Article 2(d) of Qanoon-e-Shahadat Order, 1984, which reads as under:-
(d) "fact" includes-- anything, state of things, or relation of things capable of being perceived by the senses; and
(ii) any mental condition of which any person is conscious.
The illustrations annexed to this Article if seen, illustrations B & C are relevant to further elaborate this point, which are hereby reproduced:--- (b) that a man heard or saw something is a fact,
(c) that a man said certain words, is a fact.
Under Article 70 of Qanoon-e-Shahadat Order, 1984 it is specifically provided that all facts except the contents of document may be proved by oral evidence. It is provided under Article 71 that oral evidence must be direct and it is further provided that "if it refer to a fact which could be seen, it must be the evidence of a witness who says he saw it and if it refers to a fact which could be heard it must be the evidence of a witness who says he heard it". If the factual aspects of the present case are seen, it was claimed by the petitioner-plaintiff as mentioned above that he for the first time came into knowledge the factum of sale on 22.3.1999 at 10:00 a.m.. When Umar Hayyat Khan came to him and disclosed the same. Now in order to prove if Umar Hayyat Khan made any statement which was heard by the petitioner-plaintiff and the other. Witnesses, the first part of the chain is a circumstance constituting the fact is to prove, if statement was made by Umar Hayyat Khan and for that purpose examination of Umar Hayyat Khan as alleged by the petitioner-plaintiff was necessary. In the present case he was not examined, therefore, the fact that if anybody or specially said Umar Hayyat Khan made any statement is missing. The second part that petitioner and his witnesses heard saying Umar Hayyat Khan so is also brought on record but the important part i.e. First part making of the statement is not proved on record. Both the learned Courts below in this scenario as it was specifically alleged by the petitioner that he came into knowledge of the factum of sale through Umar Hayyat Khan draw an adverse inference under Article 129(g) of Qanoon-e-Shahadat Order that as he was not examined, therefore, it could safely be presumed that had he been examined he might have not supported the petitioner-plaintiff in this respect.
Learned counsel for the petitioner-plaintiff during arguments agitated that said Umar Hayyat Khan had already been died and due to that reason he was not examined but there is no evidence in this respect available on record nor it was ever agitated at the trial stage. Learned counsel for the petitioner-plaintiff, however, during arguments before the learned first Appellate Court raised this argument but it was repelled on the ground mentioned above. In view of the circumstances when informer was not examined, both the learned Courts below rightly held that performance of talb-e-muwathibat was not proved.
8. The second important question which was agitated before this Court was the issuance and delivery of notice talb-e-ishhad on the respondent-defendant. Plaintiff-petitioner as well as witnesses in their statements stated that on 25.3.1999 through registered post acknowledgement due notice was issued to the respondent-defendant. In order to prove the performance of talb-e- ishhad plaintiff-petitioner made statement as well as witnesses. In this respect a copy of notice of talb-e-ishhad Exh.P3 and postal receipt Exh.P4 were got exhibited by the learned counsel for petitioner-. Plaintiff. However, in view of the fact that defendant-respondent denied receipt of any such notice, heavy burden was on the shoulders of petitioner-plaintiff to prove the same. No-doubt notice of talb-e-ishhad (Exh.P3) a carbon copy was exhibited and both the learned Courts' below have taken it as a copy of the original and taken it inadmissible being an effort to bring on record as secondary evidence, which is a wrong application of the provisions of Articles 72 and 73 of the Order, ibid, because the copies made by a uniform process, such-like several copies prepared- by inserting carbon papers between different leaves, each copy be taken as primary evidence as first copy itself be deemed original but the fact remains that under Section 13(3) of the Punjab, Pre- emption Act, 1991, it is specifically provided that:--- "Where a pre-emptor has made talb-i-muwathibat under sub-section (2), he shall as sew thereafter as possible but not later than two weeks from the date of knowledge made talb-i- ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre- emption."
9. The mode of issuance of notice of talb-i-ishhad is specifically provided in the above-mentioned provision and much emphasis is given to "under registered cover acknowledgement due". Meaning thereby while adopting this process it is assured that notice of talb-i-ishhad must reach or deliver to the vendee/a defendant in a suit for preemption. No doubt under Article 129(f) of Qanoon-e- Shahadat. Order, 1984 presumption is attached to common course of business. If the common course of business is followed in a particular case like when a letter is posted it is presumed that in common course of business it must have been delivered to the person to whom it was sent but this presumption is rebuttable. In the present case had it not been denied by the respondent- defendant that he did not receive the notice then mere exhibition of copy of notice and postal receipt be admitted as sufficient for performance of talb-i-ishhad but in view of the fact that when sub-section (3) of Section 13 of the Act, ibid, specifically provides the issuance of notice of talb-i- ishhad through post with acknowledgement due receipt, then it is necessary for the plaintiff- petitioner to prove the following of the procedure specifically provided for that purpose. It is settled law that when law requires a thing to be done in a particular manner it must be done in that manner and it must be proved that it had been done in the same manner. In this case, the plaintiff-petitioner did not examine any of the officials of the postal department or the postman nor acknowledgement due receipt was put on record to show either its delivery to respondent- defendant or his refusal in this respect. In this respect reference can safely be placed on a judgment passed by the Hon'ble Supreme Court of Pakistan reported as 2007 SCMR 1105 titled as Muhammad Bashir & others v. Abbas A.I Shah wherein in Para Nos. 11 & 12 it has been observed that:--- "The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to preempt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is 'enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for, consideration in Thammiah, b. v. Election Officer (1980) 1 Kant LJ.19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it."
While there is no cavil with the proposition that in terms of Article 129 of the Qanun-e-Shahadat Order read with Section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgement due is received back with the endorsement of "refused" by the postal authorities but of the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement."
10. In the fight of above discussion the concurrent findings , of both the learned Courts below on Issue No. 5 are correct and do not call for any interference while exercising revisional jurisdiction by this Court. Learned counsel for the petitioner-plaintiff did not argue nor agitate the findings of both the learned Courts below on remaining issues. Resultantly, finding no merit in this revision petition, same is hereby dismissed.
Civil review .