' MAHMOOD AHMAD BHATTI, J. --- This revision petition is directed against the judgment and decree dated 15.2.1999 passed by an Additional District Judge, Burewala, District Vehari, whereby he reversed and overturned the judgment and decree dated 7.6.1997 passed by the learned Civil Judge, Burewala, thereby decreeing the suit for possession through pre-emption instituted by Syed Muhammad Naseer Shah, Advocate.
2. Concisely put, Syed Muhammad Naseer Shah, Advocate instituted a suit for possession through pre emption, seeking to pre-empt the sale mutation No. 511, dated 26.2.1992 attested in favour of Abdul Aziz deceased (now being represented by petitioners Nos. 1-a to 1-d) and Ilam Din, petitioner No. 2 herein in respect of land measuring 24 Kanals, situated in Chak No. 199/EB, Tehsil Burewala, District Vehari. It was averred in the plaint that the land was sold for a consideration of Rs.
2,65,500/- but an inflated value of Rs. 3,30,000/- was got entered in the sale mutation with a view to preventing and warding off the prospective pre-emptors. It was further maintained that the pre- emptor came to know of the sale in question on 20.3.1992 and he immediately declared that he would exercise his right of pre- emption. Thereafter, accompanied by two witnesses, he went to the house of the defendants/petitioners, confirming his intention to exercise his right of pre-emption.
He went a step further and sent notice of Talb-e-lshhad attested by two witnesses to the defendants. The plaintiff went on to allege in the plaint that he is Shafi Jar and Shafi Khalit with regard to the suit land, while the defendants were completely strangers in relation to it prior to their making the purchase of the suit land through mutation No. 511 dated 26.2.1992.
3. The defendants/petitioners entered appearance and filed written statement, controverting the pleas of the plaintiffs. It was specifically denied by them that they received any notice of Talb-e-lshhad allegedly addressed to them by the plaintiff. They prayed for the dismissal of the suit on the ground that the plaintiff did not fulfill the demands of pre-emption in accordance with the law.
4. Given the divergent pleadings of the parties, the learned Trial Court framed the following issues:- --
(1) Whether the plaintiff has fulfilled all the conditions of Talbs prior to the institution of the suit?
OPP
(2) Whether the plaintiff is possessed with superior right of pre-emption? If so, on what grounds?
OPP
(3) Whether the actual price of pre-empted property was paid in the sum of Rs. 2,65,500/ ? If so, whether the price in the sum of Rs. 3,30,000/- as displayed by the mutation is hypothetical and fictitious price? OPP
(4) Whether the plaintiff is entitled to decree of possession as prayed for in case, foregoing three issues are decided in his favour? OPP
(5) Has the plaintiff no cause of action and locus standi to file the suit? OPD
(6) Is the plaintiff estopped by principal of acquisance to file this suit? OPD
(7) Is this suit barred by limitation? OPD
(8) Whether the pre-empted land was mortgaged with bank and whether the defendants Nos. 1 & 2 had paid the mortgage money in excess of the sale price? If so. its effect? OPD
(9) Whether the defendants Nos. 1 & 2 have made improvements in the pre-empted land? If so to what amount and how? OPD
(10) Whether the suit is bad on account of failure to set out plea of Zarrar and Zaroort? OPD
(11) Whether Naqsha Jhad Paida war prepared and appended by the plaintiff is incorrect? If so, what is the correct valuation of the property? OPD
(12) Whether the defendants Nos. 1 & 2 have incurred incidental charges including mutation fee and District Council Fee besides improving the pre-empted land, if so how much? OPD
(13) Whether the defendant No. 3 is unnecessary party? If so, how? OPD
(14) Whether the defendants are entitled to compensatory cost under Section 35-A, CPC in case, falsehood of the suit is proved? OPD
(15) Relief.
5. In order to prove his case, the plaintiff produced Malik Baha-Ullah, Advocate as P.W.2, who drafted notice of Talb-e- lshhad (Exh.P.1). Muhammad Hanif was examined as P.W.3, who is the marginal witness to Exh.P.1 and the plaintiff himself appeared as P.W.1 as well as P.W.4. In documentary evidence, he produced Exh.P.1 to Exh.P.15 and closed his evidence.
6. In rebuttal, one of the defendants, Abdul Aziz, examined himself as D.W.1 and produced Muhammad Ismail as D.W.2 and Haji Kamal Din as D.W.3. and closed their evidence.
7. As it is, the learned Trial Court proceeded to dismiss the suit of the plaintiff vide judgment and decree dated 7.6.1997, holding that the plaintiff had failed to prove the fulfilment of Talb-e- Muwathibat. Feeling aggrieved, the respondent/plaintiff preferred an appeal, which was allowed vide impugned judgment and decree dated 15.2.1999. Hence this revision petition.
8. In support of this petition, the learned counsel for the petitioner submits that the learned Appellate Court reversed and overturned the well-reasoned judgment and decree passed by the learned Trial Court without any rhyme or reason. It is stressed by him that the plaint was liable to be rejected under Order VII, Rule 11, CPC for the reason that the plaintiff had failed to fulfill the demands of pre -emption. Attention of the Court was invited to paragraphs Nos. 3 & 4 of the plaint in which the plaintiff simply stated that he learnt of the sale on 20.3.1992 without specifying the time and the place as to when and where the disclosure of the sale sought to be pre-empted by him was made. It is also argued that the plaintiff neither examined the informer nor was the second witness to the notice of Talb-e-lshhad produced. Even no Postman was produced to prove that the notice of Talb-e-lshhad was actually delivered to the petitioners/defendants.
9. Syed Muhammad Naseer Shah Advocate was represented by Syed Liaqat Ali, Advocate. On 28.4.2015 he sought time for preparation. In his presence, the case was re-listed for today, i.e. 20.5.2015. However, for the reasons best known to him, he has not shown up. Consequently, the respondent is proceeded ex parte.
10. I have heard the learned counsel for the petitioner and perused the record annexed to the revision petition with his assistance.
11. From a bare perusal of the plaint, it is painfully obvious that the plaintiff did not make mention of the time and place as to when and where he learnt of the sale in question. He has not even disclosed as to who brought this fact to his notice. Even Exh.P.1, the alleged notice of Talb-e Ishhad is conspicuously silent on these particulars, without which a suit for pre-emption is not maintainable.
If any authority is required, reference may well be made to the judgments reported as "Mian Pir Muhammad v. Faqir Muhammad" (PLD 2007 S.C. 302), "Mst. Khaira Bibi V. Mst. Zakia Begum and 2 others" (2007 SCM R 515), "Khyber Khan and others v. Haji Malik Amanullah Khan" (2007 SCM R 1036), "Hall Muhammad Afzal v. Muhammad Zahid" (2007 SCM R 1830) Munawar Hussain v. Afaq Ahmed"
(2013 SCM R 721), "Ahdul Aziz v. Sheikh Fateh Muhammad" (2007 SCM R 336), "Fazal-ur-Rehman v.
Khurshid Ali" (2012 SCM R 635), "Muhammad Ali v. Mst. Humera Fatima" (2013 SCM R 178), "Ghafoor Khan v. lsrar Ahmed" (2011 SCM R 1545) and "Muhammad Ismail v. Muhammad Yousar(2012 SCM R 911).
12. In the case of "Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others"
(PLD 2007 S.C. 302) (supra), it was held by the Honorable Supreme Court of Pakistan as under: "According to the dispensation which has been reproduced herein above after performing Talh-i - Muwathibat. In terms of Section 13(2) of the Act, the pre-emptor has another legal obligation to perform i.e. making of Talb-i-lshhad as soon as possible after making Talb-i-Muwathibat but not later than two weeks from the date of knowledge of performing Talb i-Muwathibat, therefore, the question can conveniently be answered by holding that to give full effect to the provisions of sub- sections (2) and (3) of Section 13 of the Act, it would be mandatory to mention in the plaint date, place and time of performance of Talh-i Muwathibat because from such date, the time provided by the statute i.e. 14 days under sub-section (3) of Section 13 of the Act shall be calculated. Supposing that there is no mention of the date, place and time of Talb-i-Muwathihat then it would be very difficult to give effect fully to sub-section (3) of Section 13 of the Act, and there is every possibility that instead of allowing the letter of law to remain in force fully the pre-emptor may attempt to get a latitude by claiming any date of performance of Talh-i -Muwathibat in his statement in Court and then on the basis of the same would try to justify the delay if any, occurring in the performance of Talb-i-lshhad. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in a pre-emption suit, it may be argued that as the law has not specified about the timing then how it would be necessary to declare that the mentioning of the time is also necessary. In this behalf, it is to be noted that connotation of Talb-i-Muwathibat in its real perspertve reveals that it is a demand which is known as jumping demand and is to be performed immediately on coming to know of sale then to determine whether it has been made immediately, mentioning of the time would be strictly in consonance with the provisions of Section 13 of the Act."
(Emphasis added).
13. In the case of 2014 SCM R 667, the apex Court reiterated the law as follows:--- "This appeal, with the leave of the Court, was filed by the appellant/pre-emptor who has failed before the learned Trial Court on non-proving Talb-i-Muwathibat, but when such judgment and decree was assailed by the appellant before the learned Appellate Court the suit was decreed vide judgment dated 22-4-2000. We have questioned the learned counsel for the appellant, if as per the law laid down by this Court in the case reported as Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) the particulars of Talb-i- Muwathibat vis-a- vis time and place are mentioned in the plaint, to which he has attacked on the ground that the said judgment is per incuriam. We are not persuaded to hold the same. This appeal has no merit and is accordingly dismissed."
14. As stated above, the plaintiff did not disclose the name of the informer who spilled the beans either in the plaint or in the notice of Talb-e-lshhad (Exh.P.1) but when he examined himself as P.W.1, he attempted to improve upon his case. He stated that he was informed of the sale by Nawab Bibi.
Nawab Bibi is the person who sold the suit land to Abdul Aziz and Ilam Din, the defendants. Be that as it may, it was incumbent upon the plaintiff to have produced her as a witness. The evidence of an informer in a suit for pre-emption is of particular significance. This is evident from the observations of the Hon'ble Supreme Court of Pakistan made in the case of "Abdul Rehman v. Hall Ghazan Khan" (2007 SCM R 1491), the relevant portion where from is reproduced for the ease of reference here under:-- "A pre-emptor claiming right of pre-emption, as a matter of prudence, ought to seek corroboration to satisfy reasonably the judicial mind of the Court that Talb-i-Mowasibat was made by him enabling him to make the other demand (Talb-i-lshhad). In this case, failure to put the informer in witness-box, seen from that angle as well, raises a logical presumption that appellant feared that the witness, if examined, could not stand the test of cross-examination or that the witness would not support him or that his evidence would be against him. In this, we are fortified by case of Muhammad Mall Khan {2002 SCM R 235} (supra), in which it is observed that:--- "... therefore, in absence of any explanation by the plaintiff as to why he withheld Tayyab Khan (informer) from examining him as his witness the legal presumption would be that in case he had been produced then his deposition must have been against him..." (Emphasis added)
15. The law on the subject has been reiterated in a recent judgment reported as "Subhanuddin and others v. Pir Ghulam" (PLD 2015 S.C. 69). If I may say so with utmost respect, the evidence of an informer is a must for he is the person who sets off the events leading to the filing of a suit for pre- emption. If he is not examined or he refuses to enter the witness box, the inescapable conclusion would be that he was not willing and ready to support the assertions made by the plaintiff.
16. The suit of the respondent was to fail on another ground as well. It was specifically denied by the defendants/petitioners that they received any notice of Talb e-Ishhad. In the circumstances, the onus was on the plaintiff to prove this fact positively by leading the affirmative evidence. The examination of a Postman, who in fact, delivered the postal envelope containing notice of Talb-e - Ishhad to the defendants could have helped the plaintiff discharge the onus so put on him. Over time, the evidence of a Postman has taken the centre stage. In this respect, reliance is placed upon the judgments reported as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCM R 1105), "Bashir Ahmad v. Ghulam Rasool" (2011 SCM R 762), "Allah Ditta through L.Rs and others v.
Muhammad Anar" (2013 SCM R 866), "Dayam Khan and others v. Muslim Khan" (2015 SCM R 222) and "Khan Afsar v. Afsar Khan and others" (2015 SCM R 311).
17. I am tempted to reproduce a few paragraphs from the a fore-mentioned judgments.
18. In the case of "Muhammad Bashir and others v. Abbas All Shah" (2007 SCM R 1105), it was held that:--- "11. The requirement of "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it". (Emphasis added)
19. In order to prove that the notices were actually received by the defendants, the plaintiff had no option but to produce the postman concerned, as was held by the apex Court in the case of "Allah Ditta through L.Rs. and others v. Muhammad Anar" (2013 SCM R 866). The relevant excerpt therefrom is reproduced for ready reference:--- "As regards, the issuance of notice of Talb-i-lshhad is concerned, admittedly the postman has not been examined by the respondent-pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCM R 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-lshhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two Courts below."
20. It would be advantageous to reproduce an extract from the latest judgment of the apex Court reported as "Dayam Khan and others v. Muslim Khan" (2015 SCM R 222), which reads as under:-- "9. Moreover, it is also apparent that in order to prove the notices of Talb-i-Ishhad, it is to be seen whether the said notices have duly been served upon appellants Nos. 2 and 3 or not, but there is nothing on record to show that the same were duly delivered to them. In this regard, the respondent has not examined the postman, thus, it is violative of the law laid down by this Court in the case of Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCM R 866), wherein it has been held as under:-- "(2) As regards, the issuance of notice of Talb-i-lshhad is concerned, admittedly the postman has not been examined by the respondent pre-emptor in terms of the law laid down in Muhammad Bashir and others v. Abbas Ali Shah (2007 SCM R 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as D.W.1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of the notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two Courts below."
21. In quite a recent judgment reported as "Khan Afsar v. Afsar Khan and others" (2015 SCM R 311), this question was dealt with by the apex Court in the following manner:-- "7. The fact that the notice was merely sent would not suffice for the making of Talbi-lshhad. The vendee must be apprised about the intention of the pre -emptor. The acknowledgment due slip that was presented (Exhibit P.W.6/2) was also signed by the said Rashid Khan, and not by Muhammad Aslam Khan. Therefore, it cannot be stated that the requisite Talb-i-Ishhad had been made. The notice should have been served upon the vendee/addressee, Muhammad Aslam Khan.
Pre-emption is attended to by its own law and also provides for the manner of sending notice. The general law as contained in Section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.-W.F.P. Pre-emption Act, 1987 stipulates, "under registered cover acknowledgment due" (emphasis added) whereas the words "acknowledgment due" are not mentioned in Section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhawa. ' ' In the case of Muhammad Bashir (2007 SCM R 1105), it was held that:--- "11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emption conveying his intention to pre-emption but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant'. The service of the addressee as prescribed in law therefore is imperative. If the acknowledgement card carried an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah b. v. Election Officer [1980] 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it.
' The case of Muhammad Bashir was also followed by two different Benches of this Court, respectively in Bashir Ahmed (2011 SCM R 762) and Allah Ditta (2013 SCM R 866)."
22. Apparently, only one notice was sent to the two defendants. The policy of the law is that when there are more than one vendees, one notice each is to be sent to them to fulfill the requirements of Talb-e-lshhad. In this behalf, reference may well be made to the judgments reported as "Munawar Hussain v. Afaq Ahmed" (2013 SCM R 721) and "Dayam Khan v. Muslim Khan" (2015 SCM R 222).
23. There is another flaw in the case of the plaintiff. In his deposition, the plaintiff stated that he made Talb-e Muwathibat in the presence of two witnesses, namely, Muhammad Hanif and Younas Baig, who allegedly affixed their signatures or thumb impressions to the notice of Talb-e -Ishhad.
For reasons best known to him, the plaintiff did not produce Younas Baig. The law requires that in order to prove notice of Talb-e-lshhad, two witnesses must be examined. I cannot help quoting the law laid down by the apex Court in the judgments reported as "Akbar Ali v. Muhammad Abdullah"
(2007 SCM R 1233), "Dawa Khan v. Muhammad Tayyab" (2013 SCM R 1113), "Abdul Khan v. Ramzano Bibi" (PLD 2013 S.C. 193), "Mst. ROOH Afza v. Aurangzeb" (2015 SCM R 92) and "Muhammad Abdullah v. ljaz Ahmed" (2015 SCM R 394) on the subject.
24. In the case of "Akbar Ali v. Muhammad Abdullah" (2007 SCM R 1233), it was held by the Hon'ble Supreme Court of Pakistan as under: "On perusal of above provisions Mahomedan Law as well as of Punjab Pre emption Act it is clear the demand of Talb-i-Ishhad is to be expressly made in presence of two witnesses and for its prove, it is mandatory that both be examined and face the test of cross-examination to determine their truthfulness."
25. In the case of "Dawa Khan v. Muhammad Tayyab" (2013 SCM R 1113), it was held by the Hon'ble Supreme Court of Pakistan as under:--- "The provisions of Section 13(3) of the Act require examination of two truthful witnesses, to prove the contents of the notice of talb-i-ishhad, which is mandatory in nature. It is consistent view of this Court since 1995 that in order to prove a document, Article 79 of the Order of 1984, requires production of two attesting witnesses to testify the same in Court. The language of Section 13(3) of the Act makes it mandatory upon the party to examine two truthful witnesses of the notice to prove talb-i-ishhad, unless it is shown that one of the witnesses is untraceable and or has died, therefore, non-production of one of the witnesses, without showing sufficient cause and or plausible explanation would be violative of this mandatory requirement of proving talb-i-ishhad. The evidence produced before the Trial Court for proving the talb-i-ishhad by the respondent, therefore, was violation of Section 13(3) of the Act, as admittedly only one witness to the talbs was examined. The examination of the scribe by the respondent, in no way, can be construed to be in conformity with the language of Section 13(3) of the Act read with Article 79 of the Order. The scribe cannot be categorized as a truthful witness of talb-i-ishhad."
26. In the case of "Abdul Khan v. Ramzano Bibi" (PLD 2013 S.C. 193), the apex Court has held as under:--- "Reading the two noted provisions together, it is vivid that a document which is required by law, as in pre emption suits, the notice of Talb-i-lshhad is required by Section 13 (ibid) to be attested by two witnesses and it (the document) shall not be used in evidence until and unless two witnesses have been produced to prove the attestation of the same."
27. In the case of "Mst. Rooh Afza v. Aurangzeb" (2015 SCM R 92), the apex Court has held as under:-- "Besides, in our opinion, non-appearance of the other attesting witness of "Talb-i-lshhad" regarding the exercise of right of pre-emption, by the appellant is also fatal to her case. Moreso, as even if at the relevant time he was in Dubai, he could have come to Pakistan to appear in the witness box in support of his mother's claim. The submission of Mr. Kiyani in this regard with reference to Article 17 of the Qanun-e Shahadat Order, 1984 has also no relevance, as the said Article of the Qanun-e- Shahadat Order, 1984 has not diluted the affect of Article 79 of the said Order, particularly in a suit for pre-emption, which, as per legal requirement of Section 13 of the Khyber Pakhtunkhwa Pre- emption Act, required attestation of the notice of Talb-i-lshhad by two truthful witnesses, who could depose as to the same before the Court."
28. In the case of "Muhammad Abdullah v. ljaz Ahmed" (2015 SCM R 394), the apex Court has held as under:-- "In order to prove Talb-i-lshhad, two truthful attesting witnesses, independent of the person, issuing and or sending notice, are required to be examined to prove the factum of Talb-i-lshhad. Besides, the execution of a document could only be proved by examining two attesting witnesses of the document as provided by the Article 79 of the Qanun-e-Shahadat Order, 1984.
3. In the aforesaid appeal, the appellant having examined only one attesting witness against the mandate of Section 13(3) of the Punjab Pre-emption Act, 1991, consequently, he failed to prove validity of Talb-i-lshhad. This appeal for the aforesaid reasons is dismissed."
29. In view of the discussion made above, the impugned judgment dated 15.2.1999 passed by the learned Appellate Court is not sustainable in the eyes of law. The Appellate Court exceeded its jurisdiction to decree the suit of the respondent. On the face of it, this judgment is contrary to the law declared by the Hon'ble Supreme Court of Pakistan in its various judgments. Consequently, this revision petition is allowed and the impugned judgment and decree dated 15.2.1999 is hereby set aside while restoring that of the learned Trial Court dated 7.6.1997, thereby dismissing the suit for possession through pre-emption constituted by the respondent.