1. AMIN-UD-DIN KHAN, J.---- With the concurrence of learned counsel for the parties this case is being treated as a "Pacca Case".
2. 2.Through this revision petition petitioners have challenged the judgment and decree dated 31-3- 2010 passed by learned Additional District Judge, Mailsi whereby appeal filed by the petitioners was dismissed and the judgment and decree dated 6-4-2007 passed by learned Civil Judge 1st Class, Mailsi whereby suit for pre-emption filed by the plaintiffs-petitioners was dismissed.
3. 3.Brieffactsofthecasearethatplaintiffs-petitionerson11-10-2005 filed a suit to pre-empt the sale of land in favour of defendants-respondents through registered Sale-deed No.908 attested on 14-6- 2005 and on the basis thereof Mutation No.2227 was also attested on11-8- 2005withregardtothesuitlandmeasuring368kanals,9 marlas, fully described in the head-note of the plaint. Case of the plaintiffs-petitioners that defendants purchased the suit-land secretly without any notice to the plaintiffs-petitioners. They on 1-10-2005 at 5:00 pm while sitting in the house of Haider Jamal, one of the plaintiffs, at Mauza Sahib Ali came to know about the sale of land through Muhammad Hassan and announced their intention of pre-emption forthwith. Thereafter, notice of Talb-e-Ishhad was sent to the defendants through registered post A.D. on 4-10-2005. According to the plaintiffs the sale was for a consideration of Rs.70,00,000 whereas in the sale-deed it has been mentioned as Rs.1,61,19,687. Written statement was filed. Suit was contested. Learned trial Court named the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closing the trial proceedings, after hearing learned counsel for the parties, the learned trial Court vide judgment and decree 6-4-2007 dismissed the suit. Appeal was preferred, same was also dismissed vide judgment and decree dated 31-3-2010. Hence, this civil revision.
4. 4.Learned counsel for the petitioners argues that learned trial Court has non-suited the plaintiffs- petitioners on the grounds that there are contradictions with regard to Talb-e-Muwathibat in the statements of the witnesses of the plaintiffs; that one of the plaintiffs appeared as witness whereas the other plaintiffs did not appear. Further states that as notice of Talb-e-Ishhad is signed by all the plaintiffs, therefore; it will be presumed that plaintiffs have issued the notice; that under section 14 of the Punjab Pre-emption Act, 1991 the Attorney can be appointed for performance of Talbs, therefore, states that the learned courts below fell in error while deciding the matter against the legal permissive position. Further argues that with regard to right of pre-emption as Shafi-i- Jar/contiguity both the courts below have not bothered to give finding on this right of pre-emption.
5. Even otherwise, states that the special rights attached with the suit property have also been established by the plaintiffs-petitioners that the teamed first appellate Court has also not recorded its findings issue-wise nor has framed point for determination of first appeal, therefore, it is clear violation of Order XLI, Rule 31 of C.P.C. Further adds that with regard to the price, issue has hot been decided by the courts below, therefore, prays for setting aside of the judgments and decrees passed by both the learned courts below and acceptance of this civil revision. While relying on "Altaf Hussain Shah and another v. Abdul Qadeer and 2 others" (2004 YLR 824), "Abdul Rasheed and 3 others v. Sajjad Amjad alias Sajjad Ahmed and another" (2004 MLD 1879), "Gul Muhammad and another v. Muhammad Latif" (2007 CLC 1563), "Raees Khan and others v. Mst. Naseeb Khatoon"
6. (2006 SCMR 1836), "Malik Aujagar Khan and 2 others v. Hassan Akhtar and 6 others" (2004 MLD 591), "Muhammad Sharif v. Muhammad Yousaf" (2008 MLD 307 "Khushi Muhammad v. Muhammad Yousaf" (2608 YLR 362), "Mst. Zargoon and others v. Mst. Shadana and others" (2002 CLC 1539) and "Sher Bahadur and others v. Mir Akbarandothers"(2004CLC1348)praysthatthispetitionbe allowed.
7. 5.On the other hand; learned counsel representing the respondents argues that there are concurrent findings of fact recorded by the two courts below and there is no infirmity, illegality or there is no misreading or non-reading on the part of learned courts below while deciding the matter in issue, therefore, states that ordinarily this Court does not reinterpret the evidence already interpreted by the courts below. States that there is no occasion to interfere with the findings recorded by the courts below; that in accordance with Order VI, Rules 2 and 4 of the C.P.C. the facts were required to be pleaded specifically and plaintiffs failed to comply with this provision of law; that complete documentary evidence produced in the trial Court has not been annexed with this civil revision, therefore, civil revision is liable to be rejected on this score alone. Learned counsel for the respondents has further argued on the basis of right of Shafi-i-Jar/contiguity by stating that a person claiming right of pre-emption must be full owner of the land contiguous to the suit-land.
8. States that without admitting the contiguity, even plaintiffs-petitioners are not full owner of the land they claim to be contiguous to the suit-land; that both the learned courts below have rightly held that plaintiffs-petitioners failed to establish performance of Talbs in accordance with law and sending/service of notice of Talb-e-Ishhad or refusal on their part for receiving the notice. Further that in accordance with section 14 of the Pre-emption Act an Agent can be appointed but there are some pre-conditions for appointment of the same and in the case in hand the alleged agent who appeared as one of the witnesses as P.W.1 was not appointed by observing the pre-requisites for appointment of the agent. Further that it is not on the record that whether the alleged notice of Talb-e-Ishhad is original one, which was sent to the defendants or any copy thereof has been produced in the evidence as Exh.P.l to Exh.P.6. Further that the plaintiffs were bound under the law to specifically plead in the plaint in accordance with the Order VI of the C.P.C. that on which specific basis they are claiming right of pre-emption on the suit-land. Further argues that the alleged notice of Talb-e-Ishhad is by the Advocate, therefore, plaintiffs were bound to show specific authority given to the Advocate for issuance of the same. Further contends that even P.W.5 Ch. Jabbar Hussain Gojar, Advocate when appeared in the witness-box has not even mentioned inability of the plaintiffs from issuance of the notice of Talb-e-Ishhad in the name of defendants.
9. Further that no service of notices, receipt thereof or refusal by the defendants has been proved, as Postman has not been produced. Argues that in accordance with Article 129-G of the Qanun-e- Shahadat Order, 1984 plaintiffs have withheld the best available evidence with them. If the Postman would have been produced, his statement would have been against the plaintiffs-petitioners.
10. Further that statement of P.W.6 Muhammad Shafique Tahir, Ex-Postmaster is not helpful to them as he is not the author of alleged receipt of sending of notices which have been produced as Exh.P.7 to Exh.P.12. Further that when in the written statement there was denial on the part of the defendants from receipt of any notice and also when one of the defendants appeared as D.W.1 has denied the receipt of notice, plaintiffs were bound to prove the service of notice upon the defendants or refusal thereof, which they have miserably failed to prove; that Exh.P.18 "Aks Masavi" has been produced without producing the Patwari to prove the same, therefore, this document is also not helpful to the plaintiffs-petitioners; that in the "Pert Warabandi" which has been produced as Exh.P.19 "Wara" of the petitioners-plaintiffs is at Sr.No.12 whereas "Wara" for the suit-land is at Sr.No.17; that Exh.P.20 relates, to "Sarkari Khal", therefore, on the basis of "Sarkari Khal" no right of pre-emption can be claimed. Further states that the sale was through registered sale-deed and the most of the consideration was paid through bank, therefore, against that payment rebuttal evidence was to be produced by the plaintiffs, which they have failed; that plaintiffs are residents of the same village and after registered sale-deed the mutation was also attested and the possession was also delivered under the sale but the same has not been denied by the plaintiffs-petitioners, therefore, showing the knowledge of sale after 109 days of the sale speaks volume. While relying on "Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957), "Muhammad Bashir and others v. Abbas Ali Shah"
11. (2007 SCMR 1105), "Ghulam Abbas and another v. Manzoor Ahmad and another" (2008 SCMR 1366), "Abdul Aziz Shahand another v. Abdul Ghafoor and another" (1985 SCMR 221), Irshad Ullah v.
12. Muhammad Arshad" (2005 CLC 1774), "Ajab Gul v. Ghulam Yasin" (2006 YLR 2405), "Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others" (2007 CLC 819), "Unair Ali Khanand others v. Faiz Rasool and others" (PLD 2013 Supreme Court 190), "RehmatDin and others v.
13. Mirza Nasir Abbasand others" (2007 SCMR 1560); "Atta-ur-Rehman v. Muhammad Anwar Khan and others" (2012 MLD 1282), "Wali Muhammad and others v. Mst. Zaib-un-Nisa" (2001 MLD 1705), "Bashir Ahmed v. Ghulam Rasool" (2011 SCMR 762), "Muhammad Akram and another v. Mst. Farida Bibi and others" (2007 SCMR 1719), "Muhammad Ayub and others v. Hazrat Mansha and others" (2006 MLD 1001), "Muhammad Yousaf v. Manzoor Ahmad" (2005 CLC 835), "Muhammad Nawaz and others v.
14. Gul Sher throughLRs" (PLD 2004 Supreme Court 493), "Iftikharuddin v. Jamshed K.A. Marker and 11 others" (PLD 1995 Karachi 608), "Iftikhar Mehmood v. Abdul Latif and others" (2009 CLC 462), "Muhammad Ramzan v. Muhammad Hussain" (2007 YLR 965), "Muhammad Ramzan v. Lal Khan"
15. (1995 SCMR 1510), "Wilayat Khan v. Muhammad Sharif through Mst. Irshad Bibi and others" (2004 CLC 240) and "Mst. Tahira Shamim and 6 others v. Shahid Rana" (2010 CLC 1945) prays that this petition be dismissed.
16. 6.I have considered the arguments advanced by learned counsel for the parties at full length and have also gone through the record with their able assistance as well as case-law submitted before this Court by them respectively.
17. 7.So far as sending of notice through registered post A.D. is concerned, in the light of law declared by the August Supreme Court of Pakistan reported as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) it is imperative upon the plaintiffs to sendnotice of Talb-e-Ishhad through registered cover acknowledgement due and also to prove the service of addressee as prescribed under the law. If acknowledgement card carries an endorsement of refusal or non-acceptance, a presumption of service would .arise unless rebutted. In this case neither the Postman has been produced nor there is any record of receipt of notice by the addressees or refusal on their part nor acknowledgement due has been produced by the plaintiffs-petitioners. As per learned counsel same have not been received back by the plaintiffs nor the service of original notice has been proved. Learned counsel for the petitioners has relied upon "Ghulam Abbas and another v. Manzoor Ahmad" (2008 SCMR 1366) to argue that non-production of the acknowledgement due is not a defect while proving the sending of notice. I have noticed that even in the referred case the postal authorities proved that the notice was delivered to the vendees and their signatures were available on the postal receipts, therefore, the case-law referred by the learned counsel for the petitioners is not helpful to the petitioners as the petitioners have not bothered to produce the Postman as well as the Record-Keeper of the post office with regard to service of notices. Even if the acknowledgement due receipt was not received back by the plaintiffs even then the service of registered letter could have been proved by producing original record from the Post Office because at the time of service of a registered post acknowledgement due the Postman before the delivery of the letter obtains signatures of the addressee on the acknowledgement due as well as on .a receipt which is kept in the record of Post Office for a specific period. If the acknowledgment due card is misplaced anywhere, the record of delivery of registered post remains with the postal department and plaintiffs-petitioners have not bothered to prove the delivery of the notice of Talb- e-Ishhad. In this view of the matter, they have failed to .discharge their duty to prove sending of notice through registered post acknowledgment due in the name of the defendants-vendees, therefore, they failed to prove making of Talb-e-Ishhad in accordance with law.
18. 8.So far as proving of notices of Talb-e-Ishhad is concerned, same have been produced as Exh.P.1 to Exh.P.6. These have been produced in the statement of P.W.1, one of the plaintiffs. The statement of the plaintiff is that these notices were prepared and written by Ch. Jabbar Hussain Gojar, Advocate and when P.W.5 Ch. Jabbar Hussain Gojar, Advocate appeared, he also stated that he has written the notices on the instructions of the plaintiffs. The point argued by the learned counsel for the respondents that if these are the original notices then what was sent to the defendants through alleged registered post. Learned counsel for the petitioners argues that ordinarily more than one original notices are prepared, one is sent to the addressee and other is kept with the plaintiffs in order to produce the same in the Court. I am afraid that on the basis of presumptions no point can be decided. As it is not clear that whether these were the original notices prepared then it is missing that what was sent to the addressees and if the original were sent o the addressees how the original are with the plaintiffs, therefore, notice of Talb-e-Ishhad has notbeenproved.SofarasobjectiononthenoticesofTalb-e-Ishhad that these are by the counsel and not by the plaintiffs is concerned, I do not agree with this objection as the notices are signed by all the plaintiffs.
19. 9.So far as proof of Talb-e-Muwathibat is concerned, one of the plaintiffs appeared as P.W.1 and he has not even stated in his statement that he is appearing on behalf of all the plaintiffs as Attorney and he has not stated that the demand Talb-e-Muwathibat he is proving on behalf of the other plaintiffs in the Court. I have noticed that the' statement of P.W.1 was recorded on 21-9-2006 whereas the power of attorney in his favour was filed in the, Court as well as got exhibited in the statement of learned counsel for the plaintiffs on 30-11-2006, it means that at the time of making statement no power of attorney was available on the file, therefore, statement made by one of the plaintiffs as P.W.1 will be presumed at he most to his extent only, as making of Talb-e-Muwathibat isapersonalactandapersonmustprovethesamebyappearing before the Court as a witness or specifically by appointing an attorney to prove the same on his instructions but same is missing in this case, therefore, Talb-e-Muwathibat has also not been proved in the above circumstances.
20. 10.So far as objection of learned counsel for the respondents with regard to non-filing of certified copies of the complete documentary evidence is concerned, I have noticed that the petitioners have filed C.M. No.323/C of 2013 and along with this application the certified copies of the exhibits have also been filed. Learned counsel for the petitioners states that originally when the Copying Agency issued certified copies of the documentary evidence, they have issued certified copies of the same documents but these were not the copies of the exhibited documents but were the same documents which were provided by the plaintiffs at the time of filing, of the suit but were not exhibited. At this stage of the case I see that this objection raised by the learned counsel for the respondents is too technical when the plaintiffs-petitioners have submitted complete certified documentary evidence, therefore, this objection is not sustainable at this stage.
21. 11.So far as objection of learned counsel for the respondents that no specific pleading has been made with regard to right of pre-emption and generally it has been pleaded that all the three rights of pre-emption are available with the petitioners. At the time of arguments learned counsel for the petitioners stated that he does not press right or Shafi-i-Sharik but stated that petitioners claim right of Shafi-i-Jar and Shafi-i-Khaleet. As I have noted above that "Aks Masavi" has been produced as Exh.P.18 but no Patwari has been produced to prove the same. The argument of learned counsel for the petitioners that as this "Aks Masavi" is certified copy obtained from the Tehsil office, therefore, there was no need to produce Patwari. Though the certified copy issued by Tehsil Office in accordance with Qanun-e-Shahadat Order, 1984 is admissible in evidence but the petitioners-plaintiffs were equally bound to prove Khasra numbers owned by the plaintiffs adjacent with that of the suit property and further if on the basis of contiguity right of pre-emption is claimed plaintiffs were bound to prove that their owned property is contiguous to whole of the property sold and the property sold is comprising of one block, if they prove the contiguity with some khasra numbers and if the suit property is consisting upon various independent blocks not contiguous to each other then how the right of pre-emption of the plaintiffs can be declared on the basis of contiguity with regard to blocks which are independent from that of contiguous with the plaintiffs' property. Even plaintiff himself when appeared as P.W.1 has stated that he does not know that which khasra numbers owned by the plaintiffs are contiguous to that of the suit-land. The oral assertion of the plaintiffs was not sufficient to determine that plaintiffs are having right of pre- emption on the basis of contiguity. Even otherwise, plaintiffs have produced "Jama Bandi" to show their ownership as Exh.P.16 and when Patwari has not been produced, learned counsel for the plaintiffs though tried to argue and asked this Court to undergo the process of connecting the khasra numbers mentioned in the Jama Bandi owned by the plaintiffs and of the suit property with the "Aks Masavi" to determine the contiguity. I am afraid that it is not the duty of the Court to undergo this process when plaintiff himself is not aware of the contiguity of the khasra numbers owned by the plaintiffs and further when the Patwari has not been produced. In this view of the matter, contiguity has also not been proved.
22. 12.The point raised by the learned counsel for the respondents that for determination of the contiguity plaintiffs must be full owners of the contiguous property and learned counsel states that according to Jama Bandi which has been produced as Exh.P.16 Khewat consists upon 4895 shares whereas petitioners are owner of 1202 shares only and rest of the property is owned by the other shareholders. I have noticed that only one page of this Jama Bandi has been produced. The point of the learned counsel that the plaintiffs must be full owner of the contiguous property, I do not agree with the argument advanced by learned counsel for the respondents.
23. 13.So far as providing copy of Wara Bandi as well as Naqsha Khal for establishing right of Shafi-i- Khaleet is concerned, for proving the same more special rights attached with the property sold available to the plaintiffs must be proved. In this case there is Pert Warabandi in which the suit- land is at Sr.No.17 whereas wara of plaintiffs' land is at Sr.No.12 and further that no private khal has been established in the Naqsha Khal produced, therefore, no special right attached with the suit property available to the plaintiffs can be presumed.
24. 14.So far as question of determination of the price is concerned, as the registered document has been produced by both the parties in which the sale price of Rs.1,61,19,687 has been written against which no solid evidence has been produced, therefore, I have no reason to disagree with the findings recorded by the learned Courts below.
25. 15.So far as objection of violation of Order XLI, Rule 31 of C.P.C. by the first appellate Court is concerned,thoughthefirstappellateCourthasignoredOrder XLI, Rule 31 of the C.P.C. but I have noticed that no prejudice has been caused to the appellants/petitioners. Furthermore, when I have heard the case at full length and recorded findings on all the points in issue, therefore, if there was any deviation from the procedure that has been cured.
26. 16.Resultantly, for what has been discussed above I see no force in this petition same stands dismissed.