CH. MUHAMMAD IQBAL, J:- Through this civil revision, the petitioner has called in question the judgment & decree dated 17.01.2006 passed by the learned Civil Judge, Daska whereby the suit for possession through pre-emption filed by the petitioner/plaintiff was dismissed and judgment & decree dated 02.12.2006 whereby the learned Additional District Judge, Daska dismissed the appeal of the petitioner/plaintiff.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for possession through pre- emption in respect of land measuring 08-Marlas bearing Khewat No.262/461, Khasra No.1380/1325/635 situated at Mauza Mianwali, Tehsil Daska which was purchased by the respondents/defendants in exchange of Rs.10,000/- through mutation No.1127 dated 14.06.2000 on the basis of superior rights of pre-emption being Shafi Shareek, Shafi Khaleet and Shafi Jar qua vendee. Zia Ullah etc., the respondents/defendants contested the suit on the ground that the suit is liable to be dismissed under Order VII Rule 11 CPC; the suit is time barred; no proper court fee has been paid; the respondents/defendants have purchased the suit land in exchange of Rs.10,90,000/- and Zar-e-Soem should be submitted according to the value of Rs.10,90,000/-. From the divergent pleadings of the parties, learned trial Court framed the following issues:- "1. Whether the plaintiff has superior right of pre-emption being Shafi-e-Sharik, Shafi-e-Khalit and Shafi-e-Jar? OPP.
2. Whether plaintiff has performed all the requirement of Talbs in accordance with law? OPP.
3. Whether the impugned mutation was sanctioned in favour of defendant for Rs.10,90,000/- and proper Zar-e-Soam had not been deposited in Treasury hence, the suit is liable to be dismissed?
OPD.
4. Whether court fees of Rs.15,000/- was to be affixed on the suit, which was not deposited, hence, the suit is liable to be dismissed? OPD.
5. Whether the suit is liable to be dismissed under Order VII Rule 11 CPC? OPD.
6. Whether the suit is time barred? OPD.
7. Whether defendant expend Rs.60,000/- as registration charges and they are entitled to receive the same in case the suit is decreed? OPD.
8. Whether the defendants are entitled to receive special costs under Section 35-A CPC, if so, to what extent? OPD.
9. Relief."
3. To prove the case, the petitioner/plaintiff produced Muhammad Ghulam, Registry Clerk, Post Office, Daska as PW-1 who produced postal receipts No.180 and 181 dated 19.09.2000 as Exh. P-1 & Exh. P-2 alongwith A.D. receipts issued by the Post Office. Sanaullah/plaintiff appeared as PW2, Ishfaq Ahmed appeared as PW-3, Muhammad Younas appeared as PW-4, Muhammad Amjad Sohail Branch Post Master, Changhi appeared as PW-5. The plaintiff also produced attested copy of impugned mutation No.1127 as Exh. P-5, copy of record of rights for the year 1999-2000 of Khewat No.281, Khasra No.1380/1325/635 as Exh. P-6, copy of record of rights for the year 1999-2000 of Khewat No.18, Khasra No.1230/635 and 612 as Exh. P-7, copy of record of rights for the year 1995 96 of Khewat No.16/14 of Khasra No.612, 1230/635 as Exh. P9, copy of Aks Shajra of Khasra No.612 adjacent with the Khasra No.1230/635, 1380/1325/635 as Exh. P-10, attested copy of Roznamcha Waqiati dated 03.06.2000 as Exh. P-11 and receipt of Zar-e-Soem as Exh. P-12.
4. Mirza Muhammad Aslam appeared as DW-1 and stated that he is the witness of transaction of the suit property which was purchased by the defendants in exchange of Rs.10,90,000/- . Zahid Iqbal appeared as DW-2. Original owner/vendor, Abdul Ghafoor appeared as DW-3 and Muhammad Mansha appeared as DW-4.
In documentary evidence, the respondents/defendants produced impugned mutation No.1127 as Exh. D-1, attested copy of mutation No.1199 as Exh. D-2, attested copy of mutation No.1189 as Exh. D- 3, attested copy of mutation No.1200 as Exh. D-4, attested copy of mutation No.1127 as Exh. D-5 and attested copy of mutation No.1146 as Exh. D-6.
5. After recording the evidence of both the parties and hearing the learned counsels for both the parties, learned trial Court vide judgment & decree dated 17.01.2006 dismissed the suit of the petitioner/plaintiff. The petitioner assailed the said judgment & decree through appeal before the learned Additional District Judge, Daska who dismissed the said appeal vide judgment & decree dated 02.12.2006. Hence, this civil revision.
6. Learned counsel for the petitioner submits that both the Courts below miserably failed to evaluate the evidence brought on record and passed the impugned judgments & decrees on the basis of mis-reading and non-reading of evidence; that the petitioner proved Talbs whereas both the Courts below failed to appreciate that the petitioner had proved the Talbs.
7. Learned counsel appearing on behalf of the respondents submits that no notice of Talb-i-Ishhad ever received by the respondents/defendants; that the suit is barred by time under Section 13 (4) of the Punjab Pre-emption Act, 1991; that the petitioner/plaintiff has no cause of action to file the suit; that no acknowledgement due was produced before the learned trial Court.
8. Heard. Record perused.
9. Issue No.2 is regarding Talbs, the onus to prove this issue is placed on the plaintiff. In Para No.3 of the plaint, the plaintiff states that he came to know about the impugned sale on 18.09.2000 at about 10:00am when he and his son Muhammad Younas were sitting in Sindhu Rice Mills through his nephew Ashfaq Ahmad S/o Muhammad Sharif who has informed that Abdul Ghafoor has sold 08-Marlas property to Zia Ullah in exchange of Rs.10,000/- and at the same moment plaintiff announced to exercise his right of pre-emption. Subsequently, he sent the notices of Talb-i-Ishhad attested by Ashfaq Ahmed and Muhammad Younas to the defendants and stated as under:- {{URDU TEXT}} The plaintiff appeared as PW-2 and states as under:- {{URDU TEXT}} The petitioner/plaintiff did not disclose the name of his son in his examination-in-chief.
Ashfaq Ahmed, informer appeared as PW-3 and stated as under:- {{URDU TEXT}} This witness has not mentioned in his statement or evidence regarding the presence of Muhammad Younas, as such, this witness is not helpful to the case of the plaintiff regarding the prove of Talb-i-Muwathibat. Muhammad Younas appeared as PW-4 and states as under:- {{URDU TEXT}} PW-4 also has not mentioned in his statement regarding his presence in the Majlis when his father Sanaullah has made Talb-i-Muwathibat. It is proved on record that Muhammad Younas was not present at the time of Talb-i-Muwathibat, as such, Talb-i-Muwathibat was not proved as prescribed under Section 13 of the Punjab Pre-emption Act, 1991.
In para No.3 of his plaint, the petitioner/plaintiff states as under:- {{URDU TEXT}} But the petitioner/plaintiff did not mention in his plaint that when the said notices of Talb-i-Ishhad were scribed/written and sent to the respondents/defendants whereas in the notices Exh. P-3 and P-4, date is written as 19.09.2000 and Exh. P-1 & Exh. P-2 show that the notices were sent on 19.09.2000. In his statement, the plaintiff also has not disclosed the date of notice. Furthermore, in para No.5 of his plaint, he states as under:- {{URDU TEXT}} Whereas according to Exh. P-3 & P-4, the notices of Talb-i-Ishhad were written and dispatched on 19.09.2000. The suit was also filed by the petitioner/plaintiff on the same day i.e. 19.09.2000, as such, para No.5 of the plaint negates the version of the plaintiff that the defendants have denied his claim of right of pre-emption one day before filing of the suit. The plaintiff has no cause of action to file the suit on 19.09.2000 as there is no denial on the part of respondents/defendants. In this way, the petitioner/plaintiff failed to prove Talb-i-Ishhad.
The suit was filed on the basis of malafide intention of the petitioner created a concocted story in this regard. Under Section 13 (4) of the Pre-emption Act, after satisfying the requirements of Talb-i- Muwathibat and Talb-i-Ishhad, the preemptor shall make Talb-i-Khusumat but in this case on the same day the alleged notices were sent to the defendants and Talb-i-Khusumat has not been fulfilled by the plaintiff as prescribed. Section 13 (4) of the Punjab Pre-emption Act, 1991 which is reproduced as under:- "13. Demand of pre-emption. -- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:-
(a) `Talb-i-Muwathibat';
(b) `Talb-i-Ishhad'; and
(c) `Talb-i-Khusumat'.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under sub-section (2), and Talb-i-Ishhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
10. Issue No.3 is regarding the Zar-e-Soem which has not been deposited by the plaintiff. It is proved on record that the land in question was purchased by the defendants against Rs.10,90,000/-. The mutation No.1127 dated 14.06.2000 was cancelled and subsequently mutation No.1146 dated 04.10.2000 was sanctioned and the same price was mentioned i.e. Rs.10,90,000/-.
11. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in exercise of its revisional jurisdiction in absence of any misreading/non-reading of evidence and any illegality or any other error of jurisdiction. Reliance is placed on the cases of Malik Muhammad Hussain Vs. District Returning Officer & Others (2008 SCM R 488) & Zulfiqar Ali Vs. Judge, Family Court & 7 Others (2007 M LD 1710).
12. Learned counsel for the petitioner has not pointed out any evidence in the impugned order and judgment & decree passed by the learned Courts below and has also not identified any