' MUHAMMAD SAJID MEHMOOD SETHI, J. --- Through this petition filed under Section 115, C.P.C., petitioner has challenged judgments and decrees passed by learned Civil Judge, Bhalwal, and learned Addl: District Judge, Bhalwal, whereby suit and appeal filed by petitioner was respectively dismissed.
2. Brief facts of the case are that petitioner/plaintiff filed a suit for pre-emption against' respondents claiming his superior right of pre-emption over the suit property, which was contested by respondents by filing written statement. Out of divergent pleadings of the parties, learned Trial Court framed issues. After recording of evidence and hearing arguments of learned counsel for parties, learned Trial Court dismissed the suit vide judgment and decree dated 17.02.2015. Feeling dissatisfied, petitioner preferred appeal before learned Appellate Court, which was also dismissed vide judgment and decree dated 13.11.2015, hence instant revision petition.
3. Learned counsel for petitioner submits that impugned judgments and decrees are result of mis- reading and .Non-reading of evidence brought on record. He adds that statement of PW-2 has been mis-read to the effect that petitioner got the knowledge of sale on 25.09.2010 at 11:00 a.m. By Mumtaz, who told him that land was sold on 24.09.2010, thus, mis-reading is quite apparent rendering impugned judgments and decrees not sustainable in the eye of law.. In support of his contention, learned counsel for petitioner has relied upon Abdul Hakeem v. Mst. Jannat Bibi (2005 SCMR 1228), Allah Ditta through L.Rs, and others v. Muhammad Anar (2013 SCMR 866), Muhammad Afzal v. Ali Muhammad (2014 YLR 87), Muhammad Taj and others V. Muhammad Nawaz (2014 MLD 1300), Noor Muhammad Sultan v. Hafiz Allah Bakhsh (2014 YLR 1381), Muhammad Hayat v. Zafar lqbal and others (2014 CLC 308), Khadim Hussain v. Ghulam Farid, etc. (PL 2014 Lahore 921) and Ghulam Muhammad and another v. Mien Abdul Karim through L.Rs, (2014 YLR 774).
4. On the other hand, learned .Counsel for respondents defends the impugned judgments and decrees and submits that learned counsel for petitioner has failed to point out any illegality or material irregularity in the same, which are liable to be upheld.
5. Arguments heard and record perused.
6. The operative part of judgment and decree passed by learned Appellate Court is reproduced hereunder:- "11. From the depositions of PW-2, PW-3 and PW4 it stands proved that Mumtaz (informer) PW-3 got knowledge about the alleged sale on 25.09.2010 at about 9:30 a.m, but the plaintiff appearing as PW-2 deposed that he got knowledge on 24.09.2010 regarding sale of land by Fateh Muhammad and he 1 told him on 25.09.2010. As such, there is material contradiction regarding gaining knowledge by PW-3 about the alleged sale and consideration amount. It is inferred from the statements of the PWs that the store as to performance of jumping demand i.e, Talb-i Muwathbat, has been maneuvered rather n meeting/Majlis was held on the said date, time and place. Thus, the plaintiff has miserably failed to prove the fulfillment of requisite Talabs as per law.
12. So far as Talb-i-lshhad is concerned, in view Section 13 of the Act ibid, the plaintiff is bound t prove that he sent a registered cover notice A.D. The defendants. The plaintiff has not tendered an receipt of sending the said notice to the defendant through acknowledgement due. The plaintiff as PW stated that he sent notice under registered cover A.D to the father of defendants. However, defendant No, is minor, so the notice of Talb-i-lshhad was sent to hi father and he tendered photocopy of notice Ex.P.1 As per PW-2, the notice was sent to the father of the defendants. The impugned mutation is scanned which shows that the defendants purchased suit land fro Fateh Muhammad, etc. Vide Ex.D1, in the sum of Rs 43,00,000/-. Defendants Naveed Mohsin and Saee Mohsin, are major whereas Waleed Mohsin is a minor. According to law of pre-emption, the plaintiff is bound to prove service of notice of Talb-i-lshhad, to the defendants, but the notice was allegedly sent to their father. As such, service of notice to the defendants was neither proved nor tendered any receipt of A.D. By the plaintiff. The pre-emptor has not established that service of notice of Talb-i-Ishhad was made through registered post with A.D. The plea raised by the pre-emptor was not backed by any law and therefore was not tenable. Reliance is placed on the case-law "Munawar Hussain and others----Appellants v. Afaq Ahmad----Respondents" (2013 SCMR 721).
13. In view of the above discussion, the findings of learned Trial Court on issue No, 2 are upheld.
7. Perusal of impugned judgments and decrees shows that question of performance of Talbs has been discussed in length by both the Courts below and concurrently concluded that the requirements for performance of Talb-i-Muwathibat as well as Talb-e-lshhad had not been fulfilled. Law on the subject is quite clear that Talb-i-Muwathibat was to be announced in a meeting/Majlis in presence of informant and two witnesses. Reference in this regard can be made to Mutali v. Khizar Hayat and others (PLD 2012 Lahore 1), Muhammad Rafique v. Muhammad Shafique and others (2013 MLD 31) and Abdul Sattar v. Mian Muhammad Attique and others (2010 YLR 31). In the case of Mutali (supra), this Court while the meaning of words "sitting", "meeting" and "Majlis" used in Explanation I of Section 13(1) of Punjab Pre-emption Act, 1991, held as under:--- "12. The word "sitting" or "meeting" used in this provision of law is of an important significance. It shows that the jumping demand should be before the persons, the meeting, sitting and Majlis means a group of persons not a single person. The reason for mentioning the above word is obvious that right of pre-emption is mostly exercised in villages where most of the sale are under threat of pre-emptor and residences in village are not like cites and the village people used to assemble at one given place commonly known as "Chopal" where the village people sit together and decide their local problems, the law maker wants that jumping demand should be before group of people who may all know the demand of pre-emptor. It is an established principle of law that right of pre-emption is a weak right and it should be proved through clear and primary direct evidence. It is a feeble right and as such its existence and enforcement require strict proof. The intention of legislature shows that "Talo-i-Muwathibar should be before a group of persons and not before single person and at least before two persons before whom the informer informs about the sale. A single person does not constitute sitting, meeting or Majlis. In the present case admittedly the petitioner was alone when according to him the informer informed him about the pre-empted sale. P.W.3 came subsequently. The petitioner has failed to prove that he announced his jumping demand in a meeting or before Majlid. The petitioner allegedly announced to exercise his right of pre-emption before the informer and as such the requirement of Section 13 of Punjab Pre-emption Act, 1991 has not been proved. The learned Appellate Court has rightly came to the conclusion that petitioner has failed to prove Talb according to law. Reliance is placed on Abdul Kareem v. Mst.
Jannat Bibi (2005 SCMR 1228), Qaisar Mansoor Malik v. Mst. Jhando through Legal Heirs and 13 others (2004 YLR 537), Abdul Karim Khan v. Asif Ali Khan and others (PLD 2001 Supreme Court 137).
8. In the instant case, admittedly said demand was not made in "Majlis" as law embodied physical presence of informant and at least two witnesses together and said important ingredient is missing in the case in hand. In these circumstances mis-reading of statement of PW-2 regarding date and time of knowledge, as pointed out by the learned counsel for the petitioner, would not be of much help to the case of the petitioners as, even otherwise, the requirements of making Talb-i- Muathibat have not been fulfilled.
9. Petitioner, in order to prove Talb-i-Ishhad, was required to prove service of notices to the respondents through registered cover acknowledgment due. Both the Courts below have observed in the impugned judgments that no receipt of sending said notices to respondents has been tendered by him in evidence. Petitioner sent notice to father of respondents who is guardian of only one minor vendee (respondent No, 3), thus, service of notices upon other respondents, who were major and admittedly not residing with theft father in the village, was not proved. In this regard reference can be made to the examination-in-chief of the petitioner as PW2. When notice of Talb- i-Ishhad is not sent to all the vendees or is not received by the vendee but by some other person or receipt thereto is denied by the vendee, the requirement of notice of Talb-i-Ishhad, as provided under Section 13(3) of the Punjab Pre-emption Act (IX of 1991), is not fulfilled. Reference can be made to Khan Afsar v.Afsar Khan and others (2015 SCMR 311) and Munawar Hussain v. Afaq Ahmed (2013 SCMR 721). Regarding making of Talb-i-lshhad by service of notice under registered cover acknowledgment due, Hon'ble Supreme Court of Pakistan, in the case of Khan Afsar (supra), has held as under:---, "7. The fact that the notice was merely sent would not suffice for the making of Talb-i-Ishhad. 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-lshhad 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 acknowledge dement 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 Pakhtunkhwa. In the case of Muhammad Bashir (supra) 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 "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 and Allah Ditta (supra). That since admittedly the said notice was received by Rashid Khan (and not Muhammad Astam Khan and the receipt thereof was denied by the vendee notice of Talb-i-lshhad as prescribed by Section '1'3(3) of the N.W.F.P. Pre-emption Act, 1987 was nut served upon the vendee and a necessary component to succeed in a pre-emption suit was not fulfilled. The impugned judgment of the High Court which had dismissed the said suit therefore does not call for any interference and the appeal is dismissed with costs."
10. Although there are some omissions in the findings of learned Court below, as pointed out by learned counsel for the petitioner as to the date of knowledge and mis-reading of statement of PW-2, but the same are not of much substance.
11. The concurrent findings of facts arrived at by learned Courts below could not be interfered with unless and until the Court had come to the conclusion that the findings were perverse, patently against evidence or so improbable that acceptance thereof will tantamount to grave miscarriage of justice. Power to be exercised under Section 115 of the Code of Civil Procedure, 1908, should not be considered analogous to the powers exercised in appeal. While exercising revisional jurisdiction, High Court should satisfy itself upon three matters; firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice. Learned counsel for petitioners has failed to bring his case within the four corners of the said exceptions of law, which are sine qua non for exercising revisional jurisdiction.
12. In view of the above discussion, instant revision petition is hereby dismissed. No order as to costs.