1. CH. MUHAMMAD MASOOD JAHANGIR, J.--- The facts germane for the disposal of the instant civil revision are that the disputed property fully mentioned in para-1 of the plaint was owned by Muhammad Sarwar, respondent No.2 which was transferred by him in favour of Bashir Ahmed, respondent No.1 vide oral exchange Mutation No.1019 dated 25-5-1996. The said transaction was assailed by Muhammad Anwar, the present petitioner, by filing a suit for possession through pre- emption before the learned trial court on 21-9-1996 with the assertions that the disputed land was in fact sold out by respondent No.2 in favour of respondent No.1 but to defeat the right of petitioner/pre-emptor, the fake colour of exchange was given in the disputed mutation (Exh.P5).The petitioner/pre-emptor also pleaded in the plaint about his superior right of pre- emption being Shafi Shareek, Shafi Khaleet and Shafi Jar. He further asserted in the plaint that the disputed transaction was kept secret and it came into his knowledge on 31-5-1996 at 7.00 A.M. when he went in the drawing room of Rashid Ahmed(PW.2) where Lal Khan son of Sikandar and Gulzar Hussain son of Abdul Aziz (PW.3) were already sitting and on his arrival, Rasheed Ahmad (PW.2) communicated about the sale to him, whereupon, he then and there performed the requisite Talb-e-Muwathibat. Thereafter notice Talb-e-Ishhad was dispatched to respondent No.1/vendee.
2. 2.The said suit was contested by respondents who filed their joint written statement before the learned trial court with the assertions that the petitioner/pre-emptor had failed to perform requisite Talbs whereas the disputed transaction was in fact an exchange and they got attested mutation (Exh.P5) regarding the transaction of exchange reflected therein. It was also pleaded by the respondents/defendants that neither notice Talb-e-Ishhad was dispatched nor the same was delivered to them. The learned trial court from divergent pleadings framed the following issues:--- (1)Whether the impugned transaction was in fact a sale and the same has been given the colour of exchange with mala fide intention only to defeat the superior right of pre-emption of plaintiff? OPP (2)Whether the impugned transaction was conducted in lieu of sale price Rs.151,875?
3. (3)If Issues Nos.1 and 2 are proved then whether the plaintiff has superior right of pre-emption qua the vendee/defendants? OPP (4)Whether the plaintiff has fulfilled the requirements of legal talbs in due accordance with law?
4. OPP (5)Whether the present suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, then what is the correct valuation? OPD (6)Whether the plaintiff has neither cause of action nor locus standi to file the present suit? OPD (7)Whether the impugned transaction is not liable to pre-emption? OPD (8)Whether the plaintiff is entitled to a decree for possession through pre-emption, if so, on what terms and conditions? OPP (9)Relief.
5. 3.Both the parties produced their respective evidence in pros and cons and ultimately the suit filed by the petitioner/pre-emptor was decreed vide judgment dated 20-4-1999. Respondent No.1 by filing an appeal before the learned lower appellate court questioned the said judgment and decree rendered by the learned trial court. The learned lower appellate court while holding that the petitioner badly failed to prove Talb-e-Ishhad in accordance with the provisions contained in section 13 of the Punjab Pre-emption Act, 1991,which extinguished his right of pre-emption and the judgment and decree passed by the learned trial court was set aside vide judgment and decree dated 15-1-2002. Being aggrieved with the judgment and decree dated 15-1-2002 passed by learned lower appellate court, the petitioner has filed the instant civil revision before this Court whereas being dissatisfied with the findings on Issues Nos.1 and 2 given by the learned lower appellate court in the judgment dated 15-1-2002, respondent No.1 has raised oral objections. This Court vide judgment dated 27-12-2005 while ignoring the oral cross-objections raised by respondent No.1 on the findings of Issues Nos.1 and 2, allowed the civil revision and set aside the judgment and decree dated 15-1-2002 delivered by the learned lower appellate court and restored the judgment and decree dated 20-4-1999 rendered by the learned trial court. Respondent No.1 filed C.A. No.43 of 2006 against the judgment dated 27-12-2005 before the august Supreme Court of Pakistan, which has been accepted vide judgment dated 27-8-2009 and the case has been remanded back to this Court, Paras 2 and 3 whereof for ready reference are reproduced hereunder:--- "2.Learned counsel for the appellant, inter alia, submitted that the learned High Court did not consider appellant's submissions on Issues Nos.1 and 2 merely on the ground that appellant had not filed any cross-objection which reasoning is not sustainable in law. Learned counsel for the respondent-plaintiffs in all fairness agreed that the High Court should have considered the submissions and decided the issues raised on merit. That being so, he adds, he has no objection if the impugned judgment is set aside and the case is remanded to the learned High Court to be decided afresh.
6. 3.In view of the fair stand taken by learned counsel ,for the respondent and as he has no objection to the case being remanded, this appeal is allowed, the impugned judgment passed by the High Court is set aside, Civil Revision No.482 of 2004 shall be deemed to be pending and decided on merit."
7. 4.Learned counsel for the petitioner has argued that the learned trial court after appreciating the evidence available on file passed an eminent judgment and decreed the suit in favour of the petitioner/pre-emptor, but the learned lower appellate court without applying its judicious mind and without considering the evidence available on the file accepted the appeal filed by respondent No.1 and reversed the judgment and decree passed by the learned trial court; that the impugned judgment is not free from the taint of misreading and non-reading of evidence; that the findings of the learned lower appellate court to the extent of non-performance of Talb-e-Ishhad in accordance with law were erroneous; that the petitioner/pre-emptor produced the marginal witnesses of the notice as well as concerned postman Ghulam Rasool (PW.4) but the learned lower appellate court failed to consider the said inspiring evidence. He has lastly prayed for acceptance of the instant civil revision, setting aside of the impugned judgment and decree passed by the learned lower appellate court and the suit of the petitioner/pre-emptor be decreed.
8. 5.Conversely, learned counsel for respondents has refuted the arguments advanced by learned counsel for the petitioner and also argued that the findings of the courts below on Issues Nos.1 and 2 were erroneous; that both the courts below failed to consider that the disputed transaction was in fact an exchange and inequality of the property cannot be made basis to declare the transaction of exchange as illegal; that there was no evidence regarding the payment of consideration whereby it could be assumed that the disputed property was sold by respondent No.2 to respondent No.1 and that the petitioner/pre-emptor failed to prove the performance of requisite Talbs as per law. He has lastly prayed for dismissal of suit as well as civil revision filed by the petitioner/pre-emptor.
9. 6.Arguments heard and record perused.
10. 7.A perusal of the plaint reveals that the petitioner/plaintiff failed to plead the date to show that when the notice Talb-e-Ishhad was dispatched by the petitioner/pre-emptor through which post office and whether the same was served upon the respondents/vendees or they refused to receive the same. In the absence of such lapses, the petitioner could not lead evidence to prove the said factum as it is settled principle of law that if any such evidence is led by that party, that being departure of the original pleadings has to be ignored. Reliance in this respect is placed on a judgment reported as "Muhammad Wali Khan and another v. Gul Sarwar Khan and another" (PLD 2010 Supreme Court 965), wherein it is held as under:--- "No person can be allowed to prove his case beyond the scope of his pleadings."
11. 8.The non-disclosure of date regarding dispatch of performance of Talb-e-Ishhad in the plaint has been declared fatal for pre-emptor by the superior courts of Pakistan and suit for pre-emption could not succeed on this lapse in the light of the judgments reported as "Mst. Bashiran Begum v.
12. Nazar Hussain and another" (PLD 2008 Supreme Court 559), "Muhammad Ismail v. Muhammad Yousaf" (2012 SCMR 911), "Bakht Taj and 2 others v. Umar Rehman" (2014 CLC 937) and "Syed Munawar Hussain Shah and another v. Sahib Khan" (2013 CLC 1488).
13. 9.The petitioner/pre-emptor mentioned specific date (31-5-1996), time (7.00 A.M.) and venue (drawing room of Rasheed Ahmad Qamar) when and where he performed the first demand in presence of Lal Khan, Gulzar Hussain and Rasheed Ahmed Qamar. To prove the said fact, petitioner/pre-emptor appeared as PW.1 and he in his examination-in-chief narrated that the disputed sale came into his knowledge 1 year and 8 months and 11 days prior to the recording of his statement. He neither deposed the exact date, month or year nor time of performance of Talb-e- Muwathibat. His statement as PW.1 was recorded on 6-2-1998. His other witnesses Rasheed Ahmed Qamar (PW.2), informer also did not mention any specific date, month or year or even the period and specific time when he had informed the petitioner/pre-emptor regarding the disputed sale and the petitioner performed the first requisite demand. The petitioner also produced Gulzar Hussain (PW.3) the alleged participant of the Majlis, who also did not depose the specific date when the first demand was performed by the petitioner/pre-emptor.
14. 10.There is no cavil with the proposition that to get a decree in a suit for pre-emption requisite Talbs are to be performed in terms of provisions of section 13 of the Punjab Pre-emption Act, 1991, which are reproduced hereunder:--- "13. Demand of pre-emption.--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely--- (a)Talb-i-Muwathibt; (b)Talb-i-Ishhad; and (c)Talb-i-Khusumat.
15. Explanation. (1) `Talb-i-Muwathibat' means immediate demand by a pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.
16. Note:--- Any words indicative of intention to exercise the right of pre-emption are sufficient.
17. (ii)'Talb-i-Ishhad' means demand by establishing evidence.
18. (iii)`Talb-i-Khusumat' means demand by filing a suit.
19. (2)When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make Talb-i-Muwathibat.
20. (3)Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make 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: Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
21. (4)Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under the subsection (3), he shall make Talb-i-Khusumat in the court of competent jurisdiction to enforce his right of pre-emption."
22. 11.The petitioner as well as above referred witnesses did not narrate any specific time, venue, month or year which amounts to striking out the very roots of the concept of jumping demand, whose essence and beauty is its promptness and immediateness. The contention of the learned counsel for the petitioner that the dictum of the august Supreme Court of Pakistan in the recent judgments on the issue of performance of requisite Talbs cannot be applied to the present case with retrospective effect as the said suit was filed in the year 1996, is misconceived as in the pending matters, the latest view has to be prevailed and no discriminatory view can be adopted in the similar facts and circumstances merely on the point of time in filing the suit. In arriving at this view, I am fortified by a landmark judgment rendered by the august Supreme Court of Pakistan reported as Mian Pir Muhammad and others v. Faqir Muhammad through L.Rs. and others (PLD 2007 Supreme Court 302).
23. 12.The perusal of above referred landmark judgment reveals that pre-emptor is not only required to narrate the date, place and time regarding performance of Talb-e-Muwathibat in his plaint, but he is also required to prove the same by producing cogent and inspiring evidence. The said view has also been followed by the august Supreme Court of Pakistan in a case reported as "Muhammad Ismail v. Muhammad Yousaf" (2012 SCMR 911).
24. 13.Even in another landmark judgment of august Supreme Court of Pakistan reported as "Dilber Khan v. Muhammad Ashraf" (PLD 2013 Supreme Court 171), it has been reaffirmed that the judgment rendered in Mian Pir Muhammad's case has a retrospective effect. The operative part of the above esteemed judgment is reproduced as under:--- "Latest judgment of the Supreme Court, which enunciated a principle of law, in respect of a specific particular law by interpreting the same, should be given full effect and should be strictly followed till the time the lis stood .finally terminated/determined, meaning thereby that it (lis) was not pending before any forum; this was irrespective of the fact as to when the case was instituted or the decision was passed by the first Court or subsequent courts---Final and conclusive judgment of the apex (Supreme) Court deciding a question of law, or based upon or enunciating a principle of law, should have binding effect and should be adhered to in letter and spirit---Present case was squarely covered by the judgment of Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) at revisional stage and revisional Court (High Court) was duty bound to decide the matter as per thereto in terms of Art.189 of the Constitution---Pre- emptor was required to prove/establish particulars (of Talb-e-Muwathibat) but evidence showed that said particulars were conspicuously missing---None of the witnesses produced by the appellant with regard to Talb-e-Muwathibat had deposed about the date, time and venue of making the same---Appeal was dismissed in circumstances."
25. 14.No doubt the learned lower appellate court decided Issue No.4 against the present petitioner to the extent that pre-emptor failed to prove Talb-e-Ishhad and did not render any observation regarding the performance of Talb-e-Muwathibat but while exercising visitorial/ supervisory jurisdiction, this Court possesses all the command to check the finding of the courts below on all the factors pending before them. I conclude on the basis of evidence available on file that the pre- emptor failed to prove the requisite Talb-e-Muwathibat as well as Talb-e-Ishhad.
26. 15.The case has been remanded by the august Supreme Court of Pakistan vide order dated 27-8- 2009 reproduced in para 3 ante, with the clear direction on the consensus of the parties that Issues Nos.1 and 2 will also be redetermined by this Court irrespective of the fact that no cross objection was filed by the respondents. As such findings rendered by both the learned courts below on Issues Nos.1 and 2 are also being revisited by this Court. In the present case, no doubt the petitioner produced witnesses to prove the fact that the disputed property had been purchased by respondent No.1 from respondent No.2, but to defeat the right of pre-emption of the petitioner, the transaction was given the colour of exchange. The said oral assertion of the P.Ws. of pre-emptor is insufficient. Onus was on the petitioner/plaintiff to prove that the transaction was sale but he could not establish the circumstances or proving the transaction as sale. The exchange mutation (Exh.P5) was attested in the common assembly by the revenue officer while performing his public duties which attained presumption of truth. The oral evidence cannot exclude the documentary evidence. In the recent judgment reported as "Elahi Bakhsh through Legal Heirs and others v.
27. Muhammad Iqbal and another (2014 SCMR 1217), the identical proposition has been fully discussed while observing as under:--- "Burden of proof was on plaintiffs to prove that transaction in question was a sale and not exchange. "S" and "M" stated in their evidence in court that their transaction with defendants was one of sale and not exchange. Such oral statements from "S" and "M" varied the terms of the deed that they had entered into with defendants. Oral statement of a party to an instrument which varied or tended to vary its terms could not be admitted into evidence (Art.103 of Qanun-e- Shahadat, 1984), therefore, oral statements form "S" and "M" were inadmissible in evidence, Appeal was allowed accordingly and suit of plaintiffs was dismissed."
28. 16.On the touchstone of the above referred judgment it can safely be concluded that findings of both the courts below on Issues Nos.1 and 2 are based on misreading and non-reading of evidence, which are reversed and Issues Nos.1 and 2 are answered against the petitioner/pre- emptor and in favour of respondent No.1. Even right of pre-emption can be defeated by legitimate device like exchange and gift. Such device cannot be declared ineffective as law permits so. All that is necessary is that the device must possess all the essentials of exchange or gift. If the law exempts transaction of exchange from pre-emption it is open to a person to resort to the same in order to save his land from pre-emption and the courts of law always permit such device to be pursued, if the transaction of exchange is completed as defined in section 118 of the Transfer of Property Act. The reliance can be placed upon the cases reported as (1981 CLC 527), (PLD 1983 Peshawar 13) and (PLD 1961 Peshawar 62). The contention of learned counsel for the petitioner/pre- emptor that the alleged exchange mutation (Exh.P5) depicts inequality of the exchanged property, which proves that the transaction embodied in the mutation is in fact a show transaction without force, on this sole ground it cannot be held that the property in dispute was in fact sold out by respondent No.2 to respondent No.1 as inequality of property is no ground to discard an exchange and no restriction can be imposed upon discretion of owners of different properties to exchange with each other at their option merely on account of distinct value thereof. As such findings on Issues Nos.1 and 2 rendered by both the learned courts below are also reversed and the same are answered against the petitioner while declaring that the disputed land came in the ownership of respondent No.1 as a result of exchange.
29. 17.Sequel of the above discussion is that the instant civil revision filed by the petitioner having no merit is dismissed. Both the parties are left to bear their own costs.