' MRS. IRSHAD QAISER, J.---This revision petition is directed against the judgment and decree dated 22-11-2011 passed by learned District Judge Batagram whereby appeal filed by the present petitioner against the judgment and decree dated 29-11-2010 in Suit No,57/1 passed by trial Court was dismissed.
2. The brief and essential facts leading to the present petition are that plaintiff/respondent instituted a suit on 2-6-2008 for possession by exercising his right of pre-emption in respect of property, the detail of which is given in the heading of the plaint, measuring 6 Kanals, 15 Marlas which has been sold through registered Deed No,129/1 dated 5-4-2008 on payment of Rs,100,000 on the basis of co-sharer-ship, contiguity and participation in amenities and appendages.
3. It was alleged in the plaint that the defendant/petitioner purchased the disputed property without the knowledge of the plaintiff through registered Deed No,129/1 dated 5-4-2008 for Rs,100,000 and in order to defeat the right of pre-emption of the plaintiff/respondent fake and fictitious amount of Rs,800,000 was entered in the sale-deed. That the plaintiff came to know about the disputed sale on 12-6-2008 at 8.00 AM when he was sitting in a room of mosque Kooz Pawo Gijbori along with Umar Faraz and Abdul Manan, Akram Khan came and informed him about the sale. On this the plaintiff at once in the same meeting made Talb-e-Muwathibat (Jumping Demand) to pre-empt the disputed property and within the required time sent notice of Talb-e- Ishhad in the name of defendant vide registered post. That the plaintiff approached the defendant to accept his right of pre-emption but the defendant remained reluctant, therefore, he was compelled to file suit.
4. Defendant / petitioner was summoned who attended the Court and contested the suit. Seven issues were framed from the divergent pleading of the parties. After recording pro and contra evidence the learned trial Court passed a decree vide judgment and decree dated 29-11-2010 in favour of plaintiff for Rs,800,000 with the direction to deposit the remaining 2/3 of pre-emption amount within 30 days. Aggrieved thereof the present petitioner impugned the same in appeal, which also met the same fate. Hence, this revision petition.
5. I have heard learned counsel for the parties and perused the record with their assistance.
6. Learned counsel for the petitioner contended that the suit brought by the respondent for pre- emption is not competent as mandatory talbs have not been properly and legally performed that the respondent has himself not recorded his statement to prove his so-called Talb-eMuwathibat and Talb-e-Ishhad whereas the statement of so-called informer P.W.4 in this regard was not to be acted upon. That the plaintiff did not appear personally nor was any reason given for non- appearance. That right of pre-emption is a personal right and mandates performance of two talbs i,e, Talb-e-Muwathibat and Talb-e-Ishhad; that the former talb is persona I to the preemptor and could not have been proved through special attorney as the veracity of the said Talb can only be examined if the pre-emptor himself appears. It is further contended that the signature of the respondent on plaint, notice Talb-e-Ishhad and power of attorney are not tallying with each other.
These contradictions also create doubt about the filing of suit by plaintiff. The notice of Talb-e- Ishhad has also not been properly served. That evidence of the P.Ws. Is contradictory to each other.
It is not confidence inspiring but both the learned Courts based their decision on misreading and non-reading of evidence and non-consideration of other facts on record.
7. These arguments were rebutted by learned counsel for respondent/plaintiff and contended that both the Courts below have correctly appreciated the evidence produced by the parties and passed decree in favour of plaintiff. That the law permits the preemptor to be represented through an attorney, that even talbs can be performed through attorney. That if the attorney is not permitted to appear on behalf of the plaintiff the mandatory provision of law is likely to be frustrated.
8. It is admitted fact that plaintiff did not appear himself and elected to be represented through his attorney Akram Khan. Who appeared as P.W.4. Now the question is that why Sarbaz pre-emptor did not appear in person to prove the said Talbe-Muwathibat and also that he produced his attorney to prove the performance of his said talbs.
9. It is in this factual background that this Court has to determine, whether Talbe-Muwathibat was proved by pre-emptor as is required and mandated under section 13 of the Act.
10. The provision of section 13 of the Act is reads as follows:- ' Section-13 "Demand of Preemption.(1) The right of preemption of a person shall be extinguished unless such person makes demands of pre-emption in the following order;
(a) Talb-e-Muwathibat;
(b) Talb-e-Ishhad; and
(c) Talb-e-Khusumat.
' Explanation. I."Talb-e-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he had come to know of the sale declaring his intention to exercise the right of pre-emption.
' Note. Any words indicative of intention not exercise the right of pre-emption are sufficient.
' Explanation-II. "Talb-e-Ishhad" means demand by establishing evidence.
' Explanation-III. "Talb-e-Khusumat" means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a preemptor through any source, he shall make Talb-e-Muwathibat.
(3) Subject to his ability to do so, where a pre-emptor has made Talb-e-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section [32], or knowledge, whichever may be earlier, 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: ' Provided that in areas where due to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make talb-e-Ishhad in the presence of two truthful witnesses."
' While determining the legal signifycance of an attorney in pre-emption cases it would also be relevant to consider section 14 of the Act which reads as under:-- ' Section-14 "Demand by the guardian or agent. Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf."
11. In cases relating to pre-emption, where the party himself was the pre-emptor and exercised his Talb-e-Muwathibat, which required strict proof of = the knowledge of sale, his intention and the announcement of jumping Talbs, the nonappearance of the pre-emptor would be fatal to the claim sought. However, this rule is not absolute. There may be exception to the said rule, in case where the pre-emptor bring on record special circumstances where it is not reasonably possible for the pre-emptor to appear in person, then on the satisfaction of the Court, the pre-emptor can appoint an attorney to prove his talbs. However, the evidence so rendered would be tested on the touchstone of the principles of relevancy and proof as envisaged in "Qanun-e-Shahadat" Order, 1984.
12. In the present case Akram Khan Attorney of the plaintiff was examined as P.W.4. He has not uttered a single word about the inability of the pre-emptor to appear in the witness box. Neither he nor any other witness gave any reason as to why be did not appear. A bare reading of the contents of special power of attorney Exh.P.W.4/1 in favour of Akram Khan P.W.4 indicates that no reason for nonappearance of pre-emptor is mentioned. Moreover, the said attorney was not even authorized as to witness on his behalf with regard to performance of the Talb-eMuwathibat. It reads as follows:-- {{URDU TEXT}}
13. The contention that pre-emptor has an option to appear or not to appear to prove Talb-e- Muwathibat in view of section 14 of Pre-emption Act, 1987 would not be tenable as the said provision is qualified and can be, availed only if the pre-emptor is unable to make demand and C has valid reason for non-appearance. The reason could be minority, his sickness or any other disability but has to be pleaded in term of section 14.
14. Admittedly, there is nothing on record to indicate as to why he did not appear in person. P.W.4 Akram Khan who appeared as his special attorney in his examination-in-chief he simply stated; {{URDU TEXT}} ' But gave no reason as to why he did not appear himself even P.W.5 Umer Faraz and P.W.6 Abdul Manan did not give any reason whatsoever for his nonappearance. It has time and again been held by apex Court that the right to pre-empt is a personal right. Non-appearance of the preemptor before the Court without any cogent and plausible reason has created serious doubt regarding the credibility of the performance of Talb-e-Muwathibat as well as Talb-e-Ishhad. In cases of appearing of attorney instead of petitioner, law has been laid down in the following cases by the apex Court:-- ' Dilshad Begum v. Mst. Nisar Akhtar (2012 SCM R 1106)
' Mst. Hussan Bano v. Vali-ur-Rehman (2007 SCM R 1344)
' Mst. Lalan Bibi v. Muhammad Khan (2007 SCM R 1193)
' Muhammad Mal Khan v. Allah Yar Khan (2002 SCMR 325).
' In case of Abdul Qayyum v. Muhammad Sadiq (2007 SCM R 957), Apex Court held as follows:-- "The pre-emptor no doubt could appoint an attorney to pursue the suit but Talb-e-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act 1991 according to which if a person is unable to make demand under section 13 (ibid), his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-eMuwathibat in person and secondly, this exception appears to have been created to meet a situation in which either the preemptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-eMuwathibat himself and appear in Court in person."
15. There is yet another aspect. The best evidence with regard to performance of Talb-e- Muwathibat is the person who makes such talb. The effect of non-production of best evidence is provided under Article 129, which reads as follows:-
(129) "The Court may presume existence of certain facts. Court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particulars case."
' Article 129(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it."
16. From the available record it is proved that the case of the plaintiff hit by Article 129(g) of Qanun- e-Shahadat, Order, 1984 as without assigning any reason the best evidence was withheld and not produced. It is also important to note that during the course of arguments learned counsel for petitioner had taken me through different document especially, plaint, notice of Talb-e-Ishhad and power of attorney. From perusal of the file it reveals that the alleged signatures of pre-emptor in Urdu and English are not tallying with each other. These facts also created doubt.
17. It was strenuously argued that concurrent finding of the Courts below could not be upset in revisional proceeding. This argument is to be considered in the perspective of the settled legal position that in given circumstances for which the guidelines have very aften been illustratively stated by superior Courts, the concurrent finding on a point of fact or law can be upset if the order suffers from jurisdictional defect, illegality or irregularity.
18. Thus keeping in view the above facts and circumstances of the case, the civil revision is allowed and the impugned judgments of both the Courts below are set aside and the suit of the plaintiff is dismissed with no order as to costs.