' AMIN-UD-DIN KHAN, J.--- Through this Civil Revision, the petitioners have challenged the judgment and decree dated 22-12-2009 passed by the learned Additional District Judge, Gojra whereby an appeal filed by one of the petitioners, namely, Khalid Latif was dismissed whereas an appeal filed by Allah Ditta respondent was accepted against the judgment and decree dated 4-12-2006 passed by learned Civil Judge 1st Class, Gojra whereby the suit for possession through pre- emption filed by Allah Ditta respondent was partially decreed.
2. Briefly, the facts of the case are that Allah Ditta respondent in the instant petition instituted a suit for possession through pre-emption against the petitioners on 15-5-2002. It was alleged in the plaint that the petitioners had purchased suit-land measuring 8 kanals-11 marlas jointly in equal share through Mutation No,816 attested on 29-1-2002, from Ahmed Hassan brother of Allah Ditta respondent for a consideration of Rs,1,00,000 by way of concealment and the respondent being Shafi-i-Sharik, Shafi-iKhaleet and Shafi-i-Jar had a superior right to pre-empt the sale of the suit- land (fully described in the plaint). It was claimed in the plaint that Allah Ditta respondent had fulfilled the requirements of Talbs as envisaged in law, therefore, was entitled for the decree prayed for.
3. The suit was contested by the petitioners, who controverted the averments of the plaint while filing the written statement. It was specifically stated in the written statement that the respondent has failed to fulfil the requirements of Talbs and had no superior right to pre-empt the sale made in favour of the petitioners.
4. The learned trial court framed as many as ten issues out of the pleadings of the parties. Parties to the case adduced their respective evidence. The learned trial court after hearing the arguments, vide judgment and decree dated 4-12-2006 while deciding issue No, 4 declared that plaintiff proved Talbs against defendant No, 2, i.e, Khalid Latif and while deciding issue No, 8, it has been held that defendant No, 2 was also co-sharer and suit was decreed against defendant No, 2 to the extent of 1/4th share of the suit property and to the extent of rest of the suit property the suit was dismissed. Allah Ditta plaintiff-respondent as well as Khalid Latif defendant No,2 petitioner being dissatisfied preferred their respective appeals and the learned 1st Appellate Court-learned Additional District Judge after hearing the arguments of the parties, accepted appeal filed by Allah Ditta plaintiff-respondent and dismissed the appeal filed by Khalid Latif petitioner and decreed the suit fully. Hence, this civil revision.
5. Learned counsel for the petitioners contends that the sale was indivisible and plaintiff had not proved Talbs against both the defendants, therefore, for nonperformance as well as non-proving of Talbs against petitioner No, 1, suit must have been dismissed fully by the learned trial court.
Learned counsel has relied upon 2007 SCM R 1105 (Muhammad Bashir and others v. Abbas Ali Shah), to contend that only sending notice of Talb-e-Ishhad is not sufficient to fulfil the requirement of section 13 of Punjab Pre-emption Act, 1991 to prove Talb-e-Ishhad. It is also contended that registered notice must be with cover of acknowledgement due and service or refusal must be proved before the court; that against petitioner No, 1 no such service or refusal has been proved, therefore, in the light of judgment supra the suit is liable to be dismissed. He has further relied upon 2011 SCM R 762 (Bashir Ahmed v. Ghulam Rasool), to contend that the plaintiff was bound to produce the postman to prove the refusal of defendant No, 1 to receive notice of Talb-e-Ishhad. Lastly the learned counsel submitted that the suit of the respondent is liable to be dismissed simply on the ground that the requirement of Talbs as enunciated in section 13 of the Punjab Pre-emption Act, 1991 have not been fulfilled. Hence, this Civil Revision be accepted and judgments and decrees passed by both the courts below be set aside.
6. On the other hand, learned counsel for the respondent has opposed this petition vehemently and has relied upon 2006 SCM R 1410 (Hayat Muhammad and others v. Mazhar Hussain), to contend that only sending notice through registered A.D. Is sufficient for compliance of section 13 of Punjab Pre-emption Act, 1991. He has further relied upon 1996 SCM R 1862 (Muhammad Aslam and 2 others v. Sved Muhammad Azeem Shah and 3 others) in support of his case.
7. I have heard the learned counsel for the parties at full length and also gone through the record with their assistance with due care and caution.
8. The provisions of section 13 of the Punjab Pre-emption Act, 1991, deals with the demand of pre- emption, right to preempt the sale and the performance of the Talbs as required by section 13.
Subsection (3) of section 13 of the Act (ibid) deals with the proposition, as to whether the pre- emptor is under legal obligation to place on record the acknowledgement due along, with the postal receipt and also to produce the truthful witnesses to prove the performance of Talb-e-Ishhad. Subsection (3) of section 13 is reproduced as under:-- ' Section 13.............................................................
"(3) Where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall as soon thereafter as possible but nor later than two weeks from the date of knowledge make Talb-e- 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. Admittedly, the plaintiff has not proved the delivery of alleged notice of Talb-e-Ishhad through registered A.D. To defendant No, 1 or his refusal to receive the notice. In the light of the judgment reported in 2007 SCM R 1105 (Muhammad Bashir and others v. Abbas Ali Shah), the august Supreme Court of Pakistan has finally determined the matter that just sending notice through registered A.D.
Is not sufficient to prove its delivery or refusal by the defendant to receive notice when the defendant has denied issuance or receipt of notice by him in the written statement. I have noticed that in written statement defendants have specifically denied the receipt or refusal to receive notice, therefore, the plaintiff was bound under the law to prove the delivery of notice to both the defendants or refusal thereof when the suit property is not divisible. The case-law cited by the learned counsel for the respondent is not applicable to the facts and circumstances of the present case. Keeping in view the dictum laid down by the august Supreme Court of Pakistan in 2007 SCM R 1105 (Muhammad Bashir and others v. Abbas Ali Shah), which is fully applicable to the facts and circumstances of the present case, this Civil Revision is allowed and judgments and decrees passed by both the courts below are set aside and the suit stands dismissed. However, the parties are 'eft to bear their own costs.