MIRZA VIQAS RAUF, J. The petitioners have challenged the vires of judgment and decree dated 08.06.2006 passed by the learned Additional District Judge, Sargodha whereby in an appeal filed by the respondent the judgment and decree dated 14.02.2005 passed by the learned Civil Judge, Sargodha was set-aside.
2. Precisely, the facts necessary for the adjudication of instant petition are that the petitioners/defendants purchased the suit land vide mutation No.226 dated 30.10.1998. The said sale was pre-empted by the respondent/plaintiff by filing a suit for pre-emption before the learned Civil Judge, Sargodha.
In the suit the respondent/plaintiff averred that he has the superior right of pre-emption. He also pleaded that he attained the knowledge about the sale in question on 25.01.1999 through Muhammad Yaqeen and immediately thereafter, he pronounced his right of pre-emption on the said land.
3. The suit was resisted by the petitioners/defendants and they filed joint written statement. While submitting written statement, petitioners/defendants raised certain preliminary objections with regard to the maintainability of the suit and also controverted the facts contained in the plaint.
From the divergent pleadings of the parties, the learned trial Court framed the following issues:-
1. Whether the plaintiff has superior right of pre-emption qua the vendee/ defendants? OPP
2. Whether the defendants have made talabs according to the law of land? OPP
3. Whether the ostensible sale price of the suit land is Rs.1,50,000/- was not fixed in good faith and also not actually paid? OPP
4. Whether the plaintiff is entitled to get the suit land by way of pre-emption in consideration of Rs.50,000/-? OPD
5. Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
6. Whether the plaintiff has not come to the court with clean hands? OPD
7. Whether the plaintiff has not made talabs hence the suit is not maintainable? OPD
8. Whether the suit is not within time? OPD
9. Whether the description of the suit for the purpose of court fee and jurisdiction is incorrect? If so, what is the correct valuation? OPD
10. Whether the plaintiff is estopped by his own words and conduct to file this suit? OPD
11. Whether the suit is false and frivolous and the defendants are entitled to get special cost? OPD
12. Relief.
After framing of issues, both the parties were directed to produce their evidence.
4. The respondent/plaintiff himself appeared as PW1 whereas Muhammad Yakeen and Zaheer Ahmad were examined as PW.2 and PW.3, respectively. In documentary evidence, the respondent/plaintiff tendered notices of Talb-iIshhad as Exhibit-P1 to Exhibit-P3 whereas the acknowledgement receipts were produced as Exhibit-P4 to Exhibit-P6, respectively. Registered postal receipts were produced as Exhibit-P7 to Exhibit-P9. In addition to above, copy of register Haqdaran-e-Zamin for the year 1993-94 as Exhibit-P10, copy of mutation No.226 dated 30.10.1998 as Exhibit-P11, copy of register Haqdaran-e-Zamin for the year 1997-98 as Exhibit-P12, copies of register Haqdaran-e-Zamin for the year 1997-98 as Exhibit-P.13 & Exhibit-P14, copy of Khasragardawri as Exhibit-P15, copy of Akss Shajra as Exhibit-P16, copy of register of Warabandi as Exhibit-P17, copy of register Haqdaran-e-Zamin for the year 1997-98 as Exhibit-P18, copy of Akas as Exhibit-P.19, copy of judgment in the suit titled "Muhammad Hanif versus Muhammad Iqbal etc" as Exhibit P.21 were also produced. On the other hand, Muhammad Iqbal petitioner/defendant No.1 appeared as DW.1. He also examined Abdul Sattar as DW.2. In documentary evidence, copies of Khasragardawari were produced as Exhibit-D1 & Exhibit-D2 whereas Aks Shajra Parcha was tendered as Exhibit-D3.
5. After completion of evidence from both the sides, the learned trial Court vide its judgment and decree dated 14.02.2005 dismissed the suit. The respondent/plaintiff, feeling aggrieved from the said judgment and decree, filed an appeal before the learned District Judge, Sargodha. The appeal was consequently allowed vide judgment and decree dated 08.06.2006 and while setting aside the judgment and decree passed by the learned trial Court, the suit was decreed.
6. Learned counsel for the petitioners submitted that the respondent/plaintiff has failed to prove the necessary talbs in accordance with law and the suit was rightly dismissed by the learned trail Court. In support of his contentions, learned counsel has referred certain documents which were exhibited in the evidence of the respondent. Learned counsel contended that there are serious discrepancies in the pleadings as well as in the evidence of respondent. He argued that the suit was rightly dismissed but the learned Additional District Judge illegally set-aside the well- reasoned judgment of the learned trial Court. In support of his contentions learned counsel relied upon the cases of "Dayam Khan and others versus Muslim Khan"(2015 SCMR 222), "Munawar Hussain and others versus Afaq Ahmed"(2013 SCM R 721), "Subhanuddin and others versus Pir Ghulam"(PLD 2015 Supreme Court 69).
7. Conversely, learned counsel for the respondent defended the judgment of the learned Additional District Judge, Sargodha. He contended that in all eventuality, when there is conflict in the judgments of the Courts below the preference is to be given to the judgment of the learned lower appellate Court. In support of his contentions, learned counsel has placed reliance on the case of "Muhammad Nawaz thrugh L.Rs. Versus Haji Muhammad Baran Khan through L.Rs and others"(2013 SCMR 1300). Learned counsel further submitted that the respondent by sending the notices of Talb-i-Ishhad has duly proved its service and he cannot be non-suited on this score.
8. I have heard the learned counsel for the parties and also perused the record with their assistance.
9. The respondent pre-empted the sale which was effected through mutation No.226 dated 30.10.1998. It is the case of the respondent that he attained the knowledge of the sale in question on 25.01.1999 through Muhammad Yakeen in presence of Zaheer Ahmad where he pronounced that he will exercise his right of pre-emption as he has a superior right qua the vendees. Since sale in question was in favour of the petitioners/defendants so as per stance of the respondent/plaintiff he sent notices of Talb-i-Ishhad to them on 02.02.1999.
10. For the purpose of properly appreciating the matter in issue, issue No.2 is relevant which was framed with regard to the performance of talbs. Though the learned trail Court held that the respondent/plaintiff has failed to establish performance of Talb-i-Muwathibat and Talb-i-Ishhad but the findings were reversed by the learned Additional District Judge, Sargodha. I have examined the relevant evidence as well as the findings arrived at by the learned Additional District Judge qua the performance of talbs. I am of the considered view that the findings of the learned Additional District Judge do not find support from the available evidence, at least to the extent of Talb-i- Ishhad. Admittedly the sale mutation was effected in favour of all the petitioners/defendants.
Though the petitioner Nos.3 to 9 were minors at that time but even the notices of Talb-i-Ishhad upon petitioner Nos.1 and 2 were not served in accordance with law. Perusal of Acknowledgement receipts (Exhibit-P4 and Exhibit-P5), which were produced by the respondent himself, reveal that the notices were received by Haji Umar Din who was father of the petitioners. It is well settled principle of law that mere sending of notices is not the due compliance of Section 13 of The Punjab Pre-emption Act, 1991. The preemptor has to establish the due service of the notices upon the vendee. Since the notices were not served upon the petitioners personally so the service cannot be termed as effective in the eye of law. In this way the performance of second talb i.e. Talb-i-Ishhad is not proved. Reliance in this respect can be placed on the cases of "Dayam Khan and others versus Muslim Khan"(2015 SCM R 222), "Munawar Hussain and others versus Afaq Ahmed"(2013 SCM R 721) and "Khan Afsar versus Afsar Khan and others"(2015 SCMR 311)
11. There is yet another important aspect which pertains to the sale price of the suit land. As per stance of respondent/plaintiff in his plaint the suit land was sold with sale consideration of Rs.50,000/- but in order to defeat his right of pre-emption the same was mentioned as Rs.1,50,000/-. The respondent/plaintiff when appeared in the witness box as PW.1, he stated as under:- {{ URDU TEXT }} Whereas in the notice of Talb-i-Ishhad (Exhibit-P1) the same was mentioned as Rs.80,000/-. The stance of the respondent/plaintiff qua the price of the suit land is self-contradictory and even he failed to disclose the source of his information that the price mentioned in the mutation was not actual price. This unsubstantiated statement of the pre-emptor disentitles him from claiming the suit land on the basis of right of pre-emption.
12. The right of pre-emption is regulated under the injunctions of Islam and in terms of Section 3 of The Punjab Pre-emption Act, 1991 the Courts are directed to seek guidance from the Holy Quran and Sunah, while interpreting and applying the provisions of said Act, whereas Section 32 of the Act also mandates that in case any matter is not specifically covered under the provision of the Act the same shall be decided according to Shari'ah. Section 32 of the Act is reproduced below for ready reference:- "32. Matter ancillary or akin to the provisions of this Act.-Matters ancillary or akin to the provisions of this Act which have not been specifically covered under any provision thereof shall be decided according to Shari'ah"
In the light of above referred provision, the plaintiff undoubtedly lost the status of truthful witness.
Guidance in this respect can be sought from the case of "Subhanuddin and others versus Pir Ghulam"(PLD 2015 Supreme Court 69).
13. There is no cavil that normally in case of conflict in the judgments of the Courts below, the preference is given to the judgment of the learned lower appellate Court but this is not an inflexible rule. This Court, while exercising revisional jurisdiction in terms of Section 115 of The Code of Civil Procedure (V of 1908) has to exercise its supervisory jurisdiction in order to determine the legality of the judgments of both the Courts below and whenever it is found that any of them have committed material irregularity or illegality, warranting such interference, the said jurisdiction is to be exercised for curbing the pointed material irregularity or illegality irrespective of the fact that such judgment is of the Civil Court or the learned lower appellate Court. Since the learned Additional District Judge has committed a gross violation of law and completely misread the evidence so it is incumbent upon this Court to invoke its powers as per the mandate of Section 115 of The Code of Civil Procedure, 1908 to correct the said error.
14. For what has been discussed above, the instant petition is allowed and the judgment and decree dated 08.06.2006 passed by the learned Additional District Judge, Sargodha is hereby set- aside and in consequence thereof suit filed by the respondent/plaintiff is dismissed.