MIRZA VIQAS RAUF, J. The petitioner namely Muhammad Nawaz, through instant petition, has called in question the vires of judgment and decree dated 27th of February, 2006 passed by the learned Additional District Judge, Jhang, whereby the appeal filed by the petitioner, against the judgment and decree dated 09th of March, 2004 passed by the learned Civil Judge, Jhang, was dismissed.
2. Precisely, the facts necessary for the adjudication of instant petition are that the petitioner/plaintiff filed a suit for possession through pre-emption regarding suit land measuring 23 Kanals 04 Marlas situated in the Revenue Estate of Mauza Bagh Tehsil & District Jhang which was purchased by the respondents/defendants by way of mutation No.2105 dated 08th of April, 1997. The sale was pre-empted on the basis of superior right of pre-emption. The suit was resisted by the respondents/defendants, who submitted their written statement, wherein they not only controverted the assertions contained in the plaint but also raised certain preliminary objections with regard to its maintainability, including the question of limitation.
3. From divergent pleadings of the parties, the learned trial Court framed the following issues:- ISSUES
1. Whether the suit is barred by time? OPD
2. Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD
3. Whether the suit of the plaintiff is wrongly valued for the purpose of court fee and jurisdiction?
OPD
4. Whether the plaintiff has no cause of action or locus standi to bring this suit? OPD
5. Whether the suit is not maintainable in its present form? OPD
6. Whether the defendants are entitled to incidental charges in case of decree in favour of the plaintiff? OPD
7. Whether the suit is false and the defendants are entitled to special costs? OPD
8. Whether the sale price of the suit land Rs.7,00,000/- was fixed in good faith or actually paid? OPD If above issue is not proved, then what was the market value of the suit land at the time of its sale?
OPD 9-A. Whether the plaintiff has superior right of preemption qua the defendants/vendee? OPD
10. Whether the plaintiff asserted Tallabs lawfully? OPP
11. Relief.
4. After framing of the issues, both the parties were directed to produce their evidence. The petitioner/plaintiff produced Muhammad Nawaz as PW-1, Muhammad Aslam as PW-2. He himself appeared as PW-3, whereas Muhammad Iqbal was examined as PW-4, Sardar Ahmed as PW-5, Riaz Hussain as PW-6, Patwari Muhammad Nawaz as PW-7, Ijaz as PW-8 and Abid Hussain was examined as PW-9. In the documentary evidence, the petitioner produced receipt of registered notice No.40 as Exhibit-P1, acknowledgement receipt as Exhibit-P2, receipt of registered notice No.41 as Exhibit-P3, acknowledgment receipt as Exhibit-P4, copy of notices of Talb-i-Ishhad as Exhibit-P5 and Exhibit-P6, copy of register Haqdaran Zameen for the year 1993-94 as Exhibit-P7, copy of mutation No.2049 dated 07.07.1996 as Exhibit-P8, copy of attested mutation under challenge as Exhibit-P9, copy of mutation No.2072 dated 25.11.1996 as Exhibit-P10, copy of mutation No.2111 dated 27.3.1997 as Exhibit-P11, copy of mutation No.2282 dated 14.11.1998 as Exhibit-P12, copy of mutation No.2283 dated 14.11.1998 as Exhibit-P13, copy of registered Haqdaran Zameen for Khata No.129/123 as Exhibit-P14, copy of average sale price as Exhibit-P15, copy of mutation No.2102 as Exhibit-P16, attested copy of plaint titled as Mumtaz Ali Khan Vs. Muhammad Iqbal etc, as Exhibit-P17, attested copy of written statement as Exhibit-P18 and attested copy of plaint titled as Khizar Hayat Vs. Muhammad Khan as Exhibit-P19. On the other hand, respondents/defendants produced Rahim Bakhsh as DW-1, whereas respondent No.1/defendant No.1 himself appeared as DW-2. In addition to the oral evidence, the respondents also tendered mutation No.2105 as Exhibit-D1, copy of mutation No.2089 Exhibit-D2, copy of mutation No.2074 as Exhibit-D3, attested copy of mutation No.2080 as Exhibit-D4, copy of mutation No.2069 as Exhibit-D5, copy of mutation No.2048 as Exhibit-D6, attested copy plaint titled as Muhammad Nawaz Vs. Khizar Hayat, etc, as Exhibit-D7, attested copy of order dated 12.01.2002 as Exhibit-D8, copy of decree sheet as Exhibit-D9, attested copy of statement of Muhammad Iqbal as Exhibit-D10 and attested copy of mutation No.2100 dated 27.03.1997 as Exhibit-D11 in the documentary evidence.
5. Upon completion of evidence from both the sides, the learned trail Court dismissed the suit by way of judgment and decree dated 09th of March, 2004.
6. The petitioner, feeling aggrieved from the above said judgment and decree, filed an appeal before the learned Additional District Judge, Jhang. The appeal was also dismissed vide judgment and decree dated 27th of February, 2006.
7. Learned counsel for the petitioner submitted that both the Courts below have wrongly non- suited the petitioner on the basis of limitation. He maintained that the suit was filed well within time from the date of attestation of mutation. In support of his contentions, learned counsel relied upon the case of JALAL KHAN versus NAWAZISH ALI and others (2005 CLC 1087) and FAZAL REHMAN and others versus ABDUL QAYYUM and others (1996 SCM R 1201). Learned counsel argued that the informer was produced as PW-6 and though there was some minor discrepancies in his statement but the same cannot be termed as fatal to the case of the petitioner. Learned counsel further submitted that both the Courts below, while determining the sale consideration of the suit land has completely misread the evidence available on the record. Learned counsel argued that the petitioner has been non-suited on the basis of technicalities and both the Courts below have proceeded on wrong premises. In support of his contentions, learned counsel relied upon MUHAMMAD TARIQ and 4 others versus ASIF JAVED and another (2009 SCM R 240), WALI MUHAMMAD versus SAIF-UR-REHMAN (NLR 2004 Civil 329), KHUSHI MUHAMMAD and 3 Others versus SHER MUHAMMAD and 6 Others (PLJ 1986 Lahore 268) and ALLAH BAKHSH and others versus Mst. WILAYAT KHATOON (1998 CLC 1982).
8. Conversely, learned counsel for the respondents submitted that the date of knowledge is of significance importance for the exercise of right of pre-emption. He maintained that there are serious discrepancies in the evidence of the witnesses produced by the petitioner/plaintiff qua this fact. In order to substantiate his arguments, learned counsel has drawn the attention of this Court to the statements of PW-3 and PW-6. Learned counsel submitted that the witnesses produced by the petitioner/plaintiff were not the truthful witnesses. Learned counsel further contended that the suit of the petitioner was barred by time and it was rightly dismissed by both the Courts below. In the last, learned counsel submitted that the petitioner has failed to prove the performance of Talbs in accordance with law. Learned counsel placed reliance on the case of ZULFIQAR and others versus SHAHDAT KHAN PLD 2007 SC 582 and 1. ATIQ UR REHMAN. MINOR 2. DIN MUHAMMAD versus MUHAMMAD AMIN (NLR 2006 SCJ 424).
9. After having heard the learned counsel for the parties and perusal of record, it emanates that the petitioner/plaintiff was non-suited by the learned trial Court mainly on the ground of limitation and non-performance of Talbs in terms of Section 13 of The Punjab Pre-emption Act, 1991. In the plaint, the petitioner asserted that he acquired the knowledge of sale on 27th of March, 1997 through Riaz Hussain (PW-6). It is the case of the petitioner that the mutation was recorded on 10th of March, 1997 and though it was sanctioned on 08th of April, 1997 but for the purpose of sale, 10th of March, 1997 is the effective date. The time of knowledge of sale is mentioned as "12 pm". Record reveals that the suit was filed on 01st of September, 1997. The sale is defined in Section 2(d) of The Punjab pre-emption Act, 1991 as under:- "Sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of 'Hiba-bil-iwaz' or 'Hiba ba shart-ul- iwaz', but does not include i) transfer of an immovable property through inheritance or will or gift, other than 'Hiba-bil-iwaz' or 'Hiba ba shart-uliwaz'; ii) a sale in execution of a decree for money or of any order of a civil, criminal, revenue or any other Court or a Revenue Officer or any local authority; iii) exchange of agricultural land; and iv) transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of an immovable property by way of dower or composition in a murder or hurt case."
Whereas section 30 of The Punjab Pre-emption Act, 1991 provides the respective periods of limitation for filing a suit to enforce the right of pre-emption which reads as under:- "Limitation.---The period of limitation for a suit to enforce a right of pre-emption under this Act shall be four months from the date: a) of the registration of the sale-deed; b) of the attestation of the mutation, if the sale is made otherwise than through a registered sale- deed; c) on which the vendee takes physical possession of the property if the sale is made otherwise than through a registered sale-deed or a mutation; or d) of knowledge by the pre-emptor, if the sale is not covered under paragraph (a) or paragraph
(b) or paragraph (c)."
For the case in hand clause (b) of the above referred provisions of law is relevant which states that the period of limitation for a suit to enforce the right of pre-emption under this Act shall be four months from the date of attestation of mutation, if the sale is made otherwise than through a registered sale-deed.
10. It is the case of the petitioner/plaintiff that sale was actually effected on 10th of March, 1997 but he has not pleaded in his plaint that sale was completed before the attestation of mutation as in terms of Section 2(d) of The Punjab Pre-emption Act, 1991, the sale will be completed with an exchange for a valuable consideration. No evidence was led to prove that the sale price and the possession of land passed on vendee before the attestation of mutation. In absence of any evidence in this regard, the sale would only be deemed to be completed on the attestation of mutation and not before any date prior thereto. Thus, the effective date of sale for the said purpose is 08th of April, 1997 which means that the right of pre-emption will only accrue after the said date.
Reference in this context can be made to FAZAL REHMAN and others versus ABDUL QAYYUM and others (1996 SCM R 1201).
11. The petitioner/plaintiff, as per his own case, performed Talb-i-Muwathibat on 27th of March, 1997, thus in absence of any sale, the alleged performance of Talbs is of no consequence. Guidance in this respect can be sought from ZULFIQAR and others versus SHAHDAT KHAN (PLD 2007 SC 582).
Even otherwise, in order to prove the factum of attaining of knowledge and performance of Talb- i- Muwathibat, the petitioner/plaintiff produced Riaz Hussain as PW-6. Perusal of his statement reflects that he did not utter even a single word about the exact date of knowledge and in his cross-examination, he deposed as under: {{ URDU TEXT }} The above discrepancies are material which in no way can be termed as minor discrepancies as asserted by the learned counsel for the petitioner. Though the petitioner has given the date of knowledge in his plaint but the pleadings are not part of evidence. The sole statement of PW-6 is sufficient to destruct the whole case of the petitioner. There is yet another major discrepancy which is with regard to the time mentioned in the plaint as well as in the statement of petitioner which was recorded as PW-3 and the statement of Riaz Hussain (PW-6). Riaz Hussain (PW-6) in his evidence narrated the time as "12 pm" whereas Muhammad Nawaz petitioner/ PW-3 gave the time as "12:30 pm". In a recent judgment by the Hon'ble Supreme Court of Pakistan in the case of Mst.
ROOH AFZA versus AURANGZEB and others (2015 SCM R 92), delay of 10 to 15 minutes in performance of Talb-iMuwathibat has been held as fatal for the right of preemption. The relevant extract is hereby reproduced below:- "11. From the bare reading of the above portion of statement on oath by P.W.4 Abdul Kahar, we find that the case of the appellant for making Talb-i-Muwathibat in accordance with law stood demolished as without any justification she consumed 10-15 minutes to discuss the matter with her family members before taking the decision of exercising her right of pre-emption in respect of the suit land. In the statute, use of the word "immediate" in the context of "Talb-iMuwathibat" has its own meaning and significance, thus no redundancy can be attributed to it to accommodate a pre-emptor, who has not been vigilant in making such "Talb". The lapse of 10-15 minutes before the exercise of such right (Talb-i-Muwathibat) was, thus, fatal to the case of the appellant. If any case- law is needed for reference the case of Mian Pir Muhammad v. Faqir Muhammad (PLD 2007 SC 302) may be cited with advantage. In this judgment, a five member bench of the Supreme Court considered this issue in the context of section 13 of the Punjab Pre-emption Act, 1991, which is pari materia to section 13 of the Khyber Pakhtunkhwa Pre-emption Act, 1987, and the ratio/reasoning followed by the Court is fully applicable to the case in hand, The Court while referring to Black's Law Dictionary, as well as various other decisions of the superior Courts, concluded that the condition of immediate demand means that Talb-i-Muwathibat has to be performed in the same meeting and sitting, without any loss of time and as soon as information of the sale was received by the preemptor. Furthermore, in Muhammad Nazeef Khan v. Gulbat Khan (2012 SCM R 235) the Court while examining the definition of "sale" under section 2(d) and section 13(1) of the Khyber Pakhtunkhwa Pre-emption Act, 1987 held that the definition of "sale" in section 2(d) cannot be applied to the same expression used in section 13 as the pre-emptor is obliged to make the Talb immediately upon receiving information of the sale regardless of whether the conditions laid down for completion of sale have been fulfilled. This is because the stringent nature of the requirement of Talb-i-Muwathibat does not allow the pre-emptor to postpone the making of this Talb even if he is to make "..Further inquiry or probe as to whether or not the sale was complete in all respects. The Talb is to be made regardless of the credibility of the information".
In addition to the above, an examination of some Indian case-law also supports the claim of the respondents that slightest lapse of time is fatal to the case of the appellant. The cases of Sonabashi Kuer v. Chaudhary Ramdeo Singh (AIR 1951 Pat 521) and Muhammad Ahmad Said Khan v. Madho Prasad (35 Ind Cas 911) both clarified that the reasons why Talb-i-Muwathibat has to be performed with alacrity is because the purpose of making an immediate claim is to demonstrate that the pre-emptor has not relinquished his right of pre-emption."
Reference in this respect can also be made to 1. ATIQ UR REHMAN. MINOR 2. DIN MUHAMMAD versus MUHAMMAD AMIN (NLR 2006 SCJ 424) and GUL HUSSAIN SHAH versus MULAZIM HUSSAIN SHAH (1996 SCM R 294). In the light of above discussion, I have no hesitation in my mind to hold that the petitioner has failed to prove the requisite Talbs in terms of Section 13 of The Punjab Pre-emption Act, 1991.
12. While adverting to the question of limitation, it is observed that sale mutation was attested on 08th of April, 1997, so in terms of Section 30 of The Punjab Pre-emption Act, 1991, the petitioner was bound to bring his suit within four months from the date of attestation of mutation. The suit was filed on 01st of September, 1997 and in this way, the due date for filing of suit was 06th of August 1997. Since the summer vacations in the District Courts started from 1st of August, 1997 which remained operative till 31st of August, 1997, so the filing of suit on the next date of opening of Courts is within time. Thus findings of both the Courts below qua the issue of limitation are not sustainable and by holding the suit within time the same are set-aside. Reliance in this respect can be placed on GHULAM MURTAZA versus GHULAM HAIDER (1996 SCM R 1284) and WALI MUHAMMAD versus SAIF- UR-REHMAN (NLR 2004 Civil 329).
13. As far as the superior right of pre-emption is concerned. The petitioner/plaintiff has claimed his superior right, being co-sharer in the Khewet. In this regard Sardar Ahmed who appeared as PW-5 admitted in his cross-examination that the respondents/defendants are also co-owners in Khewet, thus the findings of both the Courts below on issue No.9-A where both the parties held equally entitled to the right of pre-emption require no interference. With regard to the market value of the property, learned trial Court framed issues No.8 & 9. I have minutely examined the findings of the learned trial Court as well as learned lower appellate Court on the said issues and I find myself in complete agreement with the said findings while determining the fate of said issues as all the relevant evidence produced in this regard was duly taken into consideration.
14. There are concurrent findings by both the Courts below which are based on proper appraisal of evidence and the petitioner/plaintiff has failed to point out any misreading or non-reading of evidence in this regard. The jurisdiction under section 115 of The Civil Procedure Code, 1908 can only be exercised for correcting a legal error committed by the subordinate Courts and even mere erroneous decision could not call for any interference unless it is established that the same is based on no evidence.
15. The nutshell of above discussion is that though the petitioner/plaintiff succeeded in establishing that his suit is well within time but in the light of evidence discussed above, the performance of requisite Talbs is not proved at all, which is sufficient to non-suit the petitioner/plaintiff. Thus while maintaining the findings of both the Courts below to the extent of all other issues except limitation, the instant petition is dismissed with no order as costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.