' NASIR-UL-MULK, J.---Through this direct appeal, filed under Article 185(2) of the Constitution, the appellant/pre-emptor wails the judgment of the Lahore High Court dated 28-9-2011 passed in Regular Second Appeal No, 256 of 2010 whereby the appeal of the respondent/vendee, Tariq Mehmood, was allowed, the findings of the first Appellate Court were set aside and the pre- emption suit of the appellant was dismissed, on the ground that he had failed to prove through evidence the time, date and place of making of Talb-eMuwathibat mentioned in the plaint.
2. The appellant had pre-empted the transaction incorporated through Mutation No, 348 attested on 27-5-1998, whereby Mst. Anwari Begum had transferred 44 Kanals and 15 Marlas of land to the respondent Tariq Mehmood, shown as exchange for another piece of land measuring 16 Kanals. An issue (No,4) was framed on the question as to whether the transaction was sale or exchange. This Issue need not detain us further as in the first round of litigation the High Court, while disposing of Civil Revision No, 14 of 2010 on 19-3-2007, had stated that both the parties had agreed that Issue No,4 was correctly decided by the first Appellate. Court by holding the transaction was sale. The High Court had then remanded the case to the first Appellate Court to decide the issue relating to Talbs. After remand the first Appellate Court on 16-10-2010 found that the appellant had proved both the Talbs, i,e, Muwathibat and Ishhad, and consequently the judgment and decree of the Trial Court were set aside and the appellant's suit decreed. The High Court through the impugned judgment dismissed the suit.
3. Learned counsel for the appellant pointed out that the appellant had mentioned the date, time (Shaam) and place where he had made Talb-e-Muwathibat upon receiving information of the transaction furnished by Siraj Din. The learned counsel referred to the statement of the appellant (P.W.2) and submitted that contrary to the findings of the High Court the appellant had duly proved the date of making of Talb-e-Muwathibat with reference to the date of issuance of notice of Talb- e-Ishhad by stating that it was made four days prior to the issuance of the notice. That statement to the same effect was made by the informer, Siraj Din (P.W.3).
4. The learned counsel for the respondents Nos. 1 and 2 submitted that the time of making of Talb- e-Muwathibat must be mentioned with precision with reference to the time by the watch; that vague reference to the time does not fulfil the requirement of making of Talb-e-Muwathibat as it has to be made immediately upon receipt of the information. The learned counsel sought support from the definition of 'time' given in Black's Law Dictionary. He also relied upon the judgment of this Court in the case of Abdul Latif v. Dil Mir (2013 SCMR 1087). As to the date it was contended that it has to be mentioned in the evidence with reference to the calendar and expressed in the terms stated in the plaint:
5. The appellant in paragraph No, 4 of his plaint stated that he had made Talb-e-Muwathibat at Shaam (late evening) while sitting in his Baithak, upon receipt of information of the transaction on 21-6-1998. Two questions arise; firstly, whether the date of making of Talb-eMuwathibat has been proved through evidence by the appellant; and secondly, whether mentioning of the time of making Talb-e-Muwathibat with reference to the period of the day would fulfil the requirement of mentioning of time in the plaint. As regards the first question, the appellant as well as the informer had stated that Talb-e-Muwathibat was made four days prior to the issuance of the notice of Talb- e-Ishhad. The said notice appended with the plaint is dated 26-6-1998, whereas according to the plaint Talb-e-Muwathibai was made on 21-6-1998. The appellant was required to prove through evidence the date mentioned in the plaint on which Talb-e-Muwathibat was made. The day on which the Talb was made can be established through any means without specifically mentioning the date. In our view, the making of Talb-e-Muwathibat on 21-6-1998 stands proved by the appellant with reference to the date of issuance of notice of Talb-e-Ishhad.
6. As regards the meaning of 'time', reliance was placed by the learned counsel for the respondents on the definition given in Black's Law Dictionary. It defines the term 'time' as:-- "Time. The measure of duration. The word is expressive both of a precise point or terminus and an interval between two points."
According to the Chambers 21st Century Dictionary 'time' has been given a number of meanings and for our purpose, two of those are relevant:-- "Time. a particular point in time expressed in hours and minuies, or days, months and years and as can be read from a clock or watch, or told by a calendar; any system for reckoning or expressing time."
7. The above definitions, whether given in Black's Law Dictionary or Chambers 21st Century Dictionary, 'time' can either be expressed with precision by the clock or watch, expressed as an interval or with, reference to any recognized system for expressing time. Reference to 'time' cannot be exclusively tied to time by the clock or watch but may be expressed by other recognized modes, for example, dawn, morning, noon, afternoon, evening or night. Thus the statement of the appellant of making of Talb-e-Muwathibat with reference to a particular period of the day would meet the requirement of time. To hold otherwise and restrict the mentioning of time with reference to the clack or watch would deprive a pre-emptor from the enforcement of his right if at the time of receiving information of the transaction none in the Majlis was wearing a watch.
8. Reliance of the learned counsel for the respondents on Abdul Latif v. Dil Mir (ibid) is misplaced. In that case there was variation in the testimony of the witnesses of Talb-e-Muwathibat regarding time of its making, ranging between 10-00 a.m. To 2-00 p.m. The plaintiff/appellant had given the timing in the plaint as Shaam and it was held that though the term was vague, it met the requirement of mentioning of the time in the plaint and the variation made by the witnesses in their testimony was found to have fitted into such reference of time in the plaint.
9. The reference to the time of making of Talb-e-Muwathibat in the plaint and in the testimony of the witnesses is the same, namely, Shaam. The answer to the question whether the Talb was made immediately upon receipt of the information is to be found from the evidence. In the present case the appellant had averred in the plaint that upon receiving information, of the transaction from Siraj Din he straightaway declared his intention of to pre-empt the same. To the same effect is the testimony of the appellant. The immediacy of the making of the Talbs cannot be tested with reference to the time by the watch. If that argument is accepted, every witness to the Talb would be required to mention the E time by the minute or fraction of a minute of the receipt of the information and making of the Talbs. Such precision of timing by the minute or seconds would practically be impossible.
10. We thus hold that the High Court had erred in dismissing the suit of the appellant on the ground that he had not proved the date on which, he had made Talb-e-Muwathibat. The appeal is allowed, the impugned judgment of the High Court is set aside and that of the first Appellate Court restored. Resultantly, the suit of the appellant stands decreed.