' Through this civil revision, the petitioners have challenged the judgment and decree, dated 13.06.2005 passed by learned Civil Judge, Class-II, Vehari and judgment and decree, dated 02.02.2006 passed by learned Additional District Judge, Vehari.
2. The facts of the case are that the predecessor-in- interest of the present petitioners namely Rana Abdul Majeed (deceased) filed a suit for possession through pre-emption in respect of the property ..Measuring 7 Kanal pertaining to Khewat No. 45, Khatooni No. 190, situated at Chak No. 72/WB, Tehsil Vehari purchased by Respondent No. 1 namely Mukhtar Ahmad through Sale Mutation No. 418 attested on 12.09.1998. The Respondent No. 1 filed a contesting written statement and upon divergent pleadings of the parties, the following issues were framed:--
1. Whether the plaintiff has got superior right over the suit property? OPP
2. Whether the actual price Rs. 120,000/- and ostensible price has been fixed Rs. 198,000/-? OPP
3. Whether the plaintiff has got no cause of action? OPD
4. Whether the plaint is liable to be rejected under Order VII Rule 11? OPD
5. Relief.
3. Initially the suit filed by the predecessor in interest, of the petitioners was dismissed on 26.10.2001.
However, in appeal, the judgment and decree dated 26.10.2001 was set aside by learned Additional District Judge, Vehari on 24.04.2002 and the case was remanded back to the trial Court with the observation that issues had not been properly framed and the direction was given to the learned trial Court for framing fresh issue about fulfillment of "Talbs" as required under Section 13 of the Punjab Pre-emption Act, 1991 and to take fresh evidence on this issue.
4. In pursuance to the judgment and decree, dated 24.04.2002 passed by learned Additional District Judge, Vehari an additional Issue No. 4-A was framed by the learned trial Court as under:-- 4-A. Whether the plaintiff has fulfilled requirements of Talabs in accordance with law? OPP
5. The learned trial Court after giving its elaborate findings on all the issues, especially, Issue No. 4- A dismissed the suit through judgment and decree, dated 13.06.2005.
6. Aggrieved by the judgment and decree, dated 13.06.2005 passed by learned Civil Judge, Class-II, Vehari an appeal was filed, which also met with the same fate by learned Additional District Judge, Vehari through iudgment and decree, dated 02.02.2006. Hence, this civil revision.
7. The learned counsel for the petitioners argued that the impugned judgments and decrees passed by both the Courts below are result of non-reading and mis-reading of evidence. It has been further argued that the suit was dismissed only on account of minor . Discrepancy in the evidence of the petitioners on the question of "Talbs". It has been further argued that under Article 77 of the Qanune-Shahadat Order, 1984, a copy of notice of Talb-i-Ishhad can be produced and the both the Courts below have wrongly dis-regarded the Ex. P/1.
8. Conversely, the learned counsels appearing for the respondents have vehemently supported the judgments and decrees passed by both the Courts below. It has been argued by learned counsels for the respondents that the predecessor-in-interest of the petitioners had miserably failed to prove the performance of statutory Talbs which is established from the evidence available on the file.
9. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record.
10. I would only confine myself to the question as the Talbs have been performed in accordance with the mandatory provision of Section 13 of the Punjab Pre-emption Act, 1991.
11. Muhammad Rafique/Petitioner No. 1 appeared as PW-3 and deposed that on 19.12.1998 one Saif Ullah informed his father in presence of Muhammad Riaz about the impugned transaction and his father declared his intention to pre-empt the same. During the cross-examination he admitted it as correct that after the information given by Saif Ullah, the predecessor-in-interest (Abdul Maieed) after consultation announced that the disputed sale would be pre-empted. Meaning thereby, that no jumping demand was made which is a sine qua non of "Talb-i-Muwathibat".
12. As far the performance of Talb-i-Ishhad is concerned, the case of the petitioners was that on 26.12.1998 notice for Talb-e-Ishhad attested by the witnesses was sent through registered post acknowledgement due but at the time of institution of the suit, the notice attached did not bear the signatures and thumb impression of the attesting witnesses namely Saif Ullah and Muhammad Riaz. An application was filed under Order 11 Rule 14 of CPC to seek a direction to the of the Respondent No. 1 to produce the original notice but the said application was dismissed by the learned trial Court through order dated 28.09.2001.
13. At this stage, it would be expedient to reproduce subsection (3) of Section 13 of the Punjab Pre- emption Act, 1991, which is as under:-- Section 13.
"Demand of pre-emption." -(1)--------------- (2)
(3) Where a pre-emptor has made Talb-e-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-iIshhad by sending a notice in writing attested by two truthful witnesses, under registered over acknowledgement due, to the vendee, confirming his intention to exercise the fight of preemption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishhad in the presence of two truthful witnesses.
14. It is noteworthy that Muhammad Riaz while appearing as PW-2 in cross-examination had deposed that he did not know what was written in the notice. Meaning thereby, that he was not aware of the contents of the notice. In my opinion where the witness is ignorant about the contents of the notice and admitted that he did not know what was written in the notice then the mandatory requirement of Section 13(3) of the Punjab Pre-emption Act, 1991 is not complied with and its non- observance would be fatal to enforce a claim of preemption. Since pre-emption is a feeble right, the formality required for its exercise and enforcement must be strictly observed and there must be a clear proof of it on record.. Where a. Witness to a notice admits that he only signed a blank document and is not aware of the contents,' of the notice nor the contents of notice were read over to him then in my opinion he cannot be termed as an attesting witness as provided in sub-section
(3) of Section 13 of the Punjab Pre-emption Act, 1991.
15. As far the service of notice under Section 13 of the Act ibid is concerned, the Hon'ble Supreme Court of Pakistan in a judgment reported in 2007 SCM R 1105 (Muhammad Bashir and others versus Abbas Ali Shah) has held that requirement of sending a notice in writing is followed by a rider i.e. Under registered cover acknowledgement due, which signifies that intention of law is not merely a formal notice on part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about the intention to pre-empt. If, merely sending of notice" was enough, it would make the expression acknowledgement due redundant. If acknowledgement card carries an endorsement of refusal or not accepted, a presumption of service would arise, unless rebutted.
16. In the present case, even the post man who was produced as PW-5 did not utter a single word that the notice had been served upon the Respondent No.1.The Hon'ble Supreme Court of Pakistan in a judgment reported in 2013 SCM R 866 (Allah Ditta through L.Rs. And others versus Muhammad Anar) has held that onus to prove the receipt of notice of Talb-i-Ishhad was on the pre-emptor; therefore it was obligatory on the pre-emptor to have proved the sending of notice by leading affirmative evidence; in present case, where the receipt of notice was denied by the Defendant/Respondent No.1.
17. The Hon'ble Supreme Court of Pakistan in judgments reported as 2007 SCM R 1105 (Muhammad Bashir and others versus Abbas Ali Shah), 2011 SCM R 762 (Bashir 'Ahmed versus Ghulam Rasool) and PLD 2013 Supreme Court 193 (Abdul Khan versus Ramzano Bibi) has laid down parameters in case where a vendee denies performance of Talb-e-Ishhad, how is the pre-emptor required to prove the same, as under:--
(a) Notice of Talb-e-Ishhad;
(b) Its two truthful attesting witnesses;
(c) Postal receipts'
(d) Acknowledgement due;
(e) Postman who effected the service (both acceptance or refusal).
' In the present case almost all the ingredients to prove Talb-e-Ishhad are missing which is mandatory to establish the right of possession through pre-emption.
18. It is an established proposition of law that findings of question of law and facts, howsoever erroneous, cannot be interfered with by High Court in exercise of its revisional jurisdiction under Section 115, CPC unless such findings suffer from jurisdictional defect, illegality or material irregularity.
19. For what has been discussed above, I am not inclined to disturb the concurrent findings recorded by the Courts below, since the learned counsel for the petitioners has failed to make out a case for interference by this Court. Resultantly, this civil revision is dismissed.