' AMIN-UD-DIN KHAN, J.---Through this single judgment I intend to decide Civil Revision in hand as well as Civil Revision. No, 233 of 2008 titled "Hafiz Allah Bakhsh v. Muhammad Hussain etc." as both these matters have arisen out of the judgments and decrees passed in one suit.
2. Through this revision petition i,e, No,1725 of 2007, petitioner has challenged the judgment and decree dated 18-4-2007 passed by learned Additional District Judge, Piplan whereby appeal filed by the petitioner was dismissed and judgment and decree dated 1-9-2006 passed by learned Civil Judge, Piplan whereby suit for preemption filed by the plaintiff-respondent was partially decreed.
3. Brief facts of this Civil Revision (No, 1725 of 2007) are that respondent-plaintiff on 31-3-2001 filed a suit to preempt the land sold in favour of defendants through Mutation No, 2353 dated 30-1-2001.
Written statement was filed. Suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 1-9-2006 learned trial court while deciding Issue No, 2 found that Talbs have been proved against defendant No, 1 only, therefore, suit was partially decreed and to the extent of defendants Nos. 2 to 6 the suit was dismissed.
4. Through Civil Revision No, 233 of 2008 plaintiff-petitioner has challenged the judgment and decree dated 18-4-2007 passed by learned Additional District Judge, Piplan whereby appeal filed by the petitioner was dismissed and the judgment and decree of the learned trial court dated 1-9- 2006 passed by learned Civil Judge, Piplan whereby suit for pre-emption filed by the plaintiff- petitioner was partially dismissed.
5. Record shows that plaintiff and 'defendant No, 1 both filed, their separate appeals, which were dismissed, hence, Civil Revision in hand has been filed by defendant No, 1/vendee and the other Civil Revision No, 233 of 2008 by the plaintiff.
6. Learned counsel for the petitioner argues that in the plaint in Para-4 date of knowledge has been mentioned as 19-3-2001 at 9:00 a.m, in the house of the plaintiff. States that for valid proving of Talb-eIshhad pleading of specific date, time and place is necessary but neither specific place has been pleaded nor proved. Further while 'referring statement of plaintiff, who appeared as P.W.1 and his witness Muhammad Akram as P.W.3, states that they have also not stated specific place of knowledge in their statement-in-chief. Further argues that it was the duty of the plaintiff- respondent to prove sending of notice through registered post A.D and then to prove the receipt of notice by the addressee or refusal thereof and for this purpose plaintiff was bound to produce the Record-keeper from the Post Office Department as well as the Postman. States that the alleged receipts of sending notice were produced in the statement of the learned counsel as well as one acknowledgement due allegedly signed by the defendant. Argues that when the defendant have specifically denied from receipt of notice, it was the primary duty of the plaintiff to prove the same.
While relying upon "Pervaiz Hussain and another v. Arabian Sea Enterprises Limited" (2007 SCM R 1105) and -"Bashir Ahmad v. Ghulam Rasool" (2011 SCM R 762) argues that when the plaintiff has not complied with the substantial provisions of section 13 of the Punjab Pre-emption Act, 1991, therefore, he was not entitled to the decree.
7. On the other hand, learned counsel for the respondent-plaintiff states that when petitioner- defendant in the instant civil revision did not appear in the witness-box to rebut that Exh.P.27 does not contain his signatures, therefore, states that the decree has been rightly passed and further states that the other Civil Revision No, 233 of 2008 be also accepted and suit be fully decreed.
8. I have heard learned counsel for the parties at full length and have gone through the record with their able assistance.
9. As the suit was for pre-emption of the sale, before filing a suit to pre-empt the sale the prerequisites are that the plaintiff must perform Talb-e-Muwathibat and Taib A e-Ishhad in accordance with law and thereafter plead the same in the plaint referring therein the notice of Talb-e-Ishhad also. I have noticed that place of gaining knowledge as well as announcement of Talb-e-Muwathibat is not specifically mentioned in the plaint as well as in the notice, though while appearing as a witness plaintiff and his witness in cross-examination stated that the plaintiff came into knowledge of the sale in the "Baithak" of his house, therefore, pleading a general and big place of a house without specifying the specific place is not the strict compliance of section 13 of the Punjab Pre-emption Act, 1991 and also law referred by the learned counsel for the petitioner. As gaining knowledge and jumping demand both are the facts which plaintiff required to prove at the time of recording of his evidence in the shit, therefore, without pleading specific date, time and place the plaintiff cannot prove gaining knowledge of the sale at the specific time without pleading the above said three prerequisites and also the plaintiff has to prove the jumping demand. For proving the jumping demand it is necessary to prove first the gaining of knowledge of sale at specific time, place and date, only then plaintiff can prove the jumping demand. In this view of the matter, plaintiff failed to plead the specific place, which was a fatal defect in performance of Talb- e-Muwathibat.
10. So far as sending notice of Talb-eIshhad is concerned, alleged receipts through which registered post notices were sent, have been produced by the learned counsel in his statement.
Furthermore, when no Record-keeper from the Post Office as well as the Postman has been produced to prove the receipt of notices by the defendants, though the learned courts below have decreed the suit to the extent of defendant No, 1 only as both the courts below held that plaintiff failed to prove Talb-e-Ishhad to the extent of rest of the defendants. As admittedly, there is no record of receipt of notices by the defendants except defendant No,1 and also the original envelopes if returned unserved are also not on the record.
11. So far as legal question that if Talb-e-Ishhad has been proved against one of the vendees/defendants and to the extent of other vendees it is not proved and whether a decree for partial land can be passed, is concerned, there are further two limbs of this question whether the sale is divisible or joint in favour of the vendees, I myself has tried to see the answer of these questions under the present pre-emption law under the decisions of the august Supreme Court of Pakistan or this Court but I could not find any judgment. Then, a question was sent to the Research Center of this Court. The report has been received, there is no direct case-law on this point, therefore, I intend to decide the same. First I take the question about "Divisibility" of the sale, answer of this question can easily be extracted from the term "Sinker" which was developed by the judgments of the Courts under the repealed Punjab Preemption Act, 1913. Under the said law about the divisibility of a sale it is settled that if the specific land purchased by each of the vendee is mentioned in the sale document or mutation and also the specific price paid by each of the vendee only then the sale can be termed as "Divisible". If one of the above mentioned conditions is missing, the sale cannot be termed as "Divisible". In the case in hand, there are six vendees, no specific land has been mentioned in the impugned mutation purchased by each of the vendees, though share purchased by each vendee has been mentioned but the total sale consideration paid by all the vendees has been mentioned, E therefore, in the light of above principle this sale cannot be termed as "Divisible".
12. Now I come to the second question that if Talb-e-Ishhad has been proved against one of the six vendees and plaintiff failed to prove Talb-e-Ishhad against the remaining five vendees whether a decree could be granted to the extent of one vendee against whom Talb-e-Muwathibat as well as Talb-e-Ishhad have been proved, in my view in this case when the sale is not divisible, no decree can be granted to the extent of one of the vendees against whom Talb-e-Ishhad has been proved.
13. So far as Exh.P.27 the acknowledgement card is concerned, as I have noted above that when the defendants have denied the issuance and delivery of any notice of Talb-e-Ishhad then it was the duty of the plaintiff to prove the signatures upon the acknowledgement card that defendant No, 1 has received this registered envelope and the card has been received back as confirmation of the service of the notice. In this view of the matter, the delivery of notice to defendant No, 1 has also not been proved, therefore, plaintiff-petitioner failed to prove Talb-e- G Muwathibat and Talb-e- Ishhad in accordance with law in the light of law relied by the learned counsel for the petitioner mentioned supra. Resultantly, this civil revision is accepted and impugned judgments & decrees passed by both the learned courts below are set aside.
14. The upshot of the above discussion is that Civil Revision No, 1725 of 2007 is allowed whereas Civil Revision No, 233 of 2008 stands dismissed with no order as to costs.