1. AMIN-UD-DIN KHAN, J--- Through this civil revision petitioner has challenged the judgment and decree dated21.3.2006 passed by the learned Additional District Judge, Sialkot whereby appeal filed by the respondent-vendee was accepted and the judgment and decree passed by the learned Civil Judge, Sialkot dated 12.7.2005 decreeing the suit for preemption filed by the petitioner was reversed.
2. This rev.Ision was heard by the learned Single Judge of this Court on 12.12.2013 and matter was referred to the Hon'ble Chief Justice for constitution of a larger bench for revisiting the interpretation made by another learned Single Judge of this Court with regard to "sitting" or "meeting" (Majlis) mentioned in Section 13 of the Punjab Pre-emption Act, 1991, which judgment has been reported as PLD 2012 Lahore 1 "Mutali v. Khizar Hayat and 6 others", therefore, the Hon'ble Chief Justice referred the matter to the Division Bench headed by me (Amin-ud-Din Khan, J.). Record shows that subsequently due to docket of this case the same was placed before our learned brother Ch. Muhammad Masood Jahangir, J. The Hon'ble Judge while noting the previous reference order of Hon'ble Chief Justice again referred the matter to the Hon'ble Chief Justice and again vide order of Hon'ble Chief Justice dated 13.10.2014 the matter was referred to this Division Bench, therefore, we have heard learned counsel for the parties.
3. Learned counsel for the petitioner argues that the interpretation made by learned Single Judge of this Court in the judgment reported as PLD 2012 Lahore 1 "Mutali v. Khizar Hayat and 6 others", is not sustainable under the law nor it is the intention of the legislature and even the interpretation made by the learned Single Judge of this Court is against whole of the scheme of law. Learned counsel for the respondent has not assisted with regard to point of reference but he has advanced the arguments with regard to merits of this case.
2. ' Before starting discussion on the point of reference we feel it appropriate to reproduce text of Section 13 of the Punjab Pre-emption Act, 1991 as well as meaning of words "sitting" or meeting (Majlis) available in various dictionaries and "Feroz-ul-Lughat Urdu".
3. ' Section 13: "Demand of pre-emption.-(1) The right of Pre-emption of a person shall be extinguished unless such person makes demands of preemption in the following order, namely:-
(a) Talb-i-muwathibat;
(b) Talb-i-ishhad; and
(c) Talb-e-khusumat."
4. ' Explanation.---(I) "Talb-i-Muwathibat" means immediate demand by a pre-emptor in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre-emption.
5. ' Note.---Any words indicative of intention to exercise the right ofpre-emption are sufficient.
6. (II). "Talb-i-Ishhad means demand by establishing evidence.
7. (III). "Talb-i-Khasumat" means demand by filing a suit.
8. (2). When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make "Talb-i-Muwathibat".
9. (3). Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption: ' 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.
10. (4). Where a pre-emptor has satisfied the requirements of Talbi-Muwathibat under subsection (2), and Talb-i-Ishhad under subsection (3) he shall make Talb-iKhusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
11. ' According to Oxford Advanced Learner's Dictionary 8th Edition:- Meeting" means an occasion when people come together to discuss or decide. Word "The Meeting" means a situation in which two or more people meet together, because they have arranged it or by chance.
12. "Sitting" (at the same time) means a period of time that personspends sitting and doing an activity.
13. ' According to The Chamber's Dictionary 12th Edition:- Meeting" means coming face to face for friendly or hostile ends.
14. "Sitting" means state of being seated or act of taking a seat.
15. ' According to Judicial Dictionary 16th Edition by K J AIYAR:- The word "meeting" when not defined under the relevant statute, it has to be construed only in its popular sense. If a common sense view of the matter is taken, it is quite clear that for a meeting there must be at least two persons, because a man cannot meet himself. The word "meeting" prima facie connotes coming together of persons for certain purpose. In substance it is a gathering of persons with a specific object in view. (Awadhoot v. State of Maharashtra AIR 1978 Born 28, p 39)
16. ' According to Black's Law Dictionary 8th Edition:- Meeting" means the gathering of people to discuss or act on matters in which they have a common interest.
17. "Sitting" means a court session.
18. ' According to Feroz-ul-Lughat Urdupublished by Feroz Sons Ltd.:- ' As we know that the present pre-emption act has been re-enacted and its purpose has been mentioned in the preamble, which is reproduced:-- "WHEREAS, it is expedient to reenact the existing law relating to pre-emption, so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah."
19. ' Previous to the present enactment Punjab Pre-emption Act, 1913 was in force while in the principles of Muhammadan Law by D.F. Mulla concept of Islamic Law of preemption was available. With regard to demand of pre-emption Section 236 is available therein which is re-produced for ready reference:-- "Demands for pre-emption. ----No person is entitled to the right of pre-emption unless----
(1) He has declared his intention to assert the right immediately on receiving information of the sale. This formality is called Talb-imowasibat (literally, demand of jumping, that is, immediate demand); and unless
(2) He has with the least practicable delay affirmed the intention, referring expressly to the fact that the Talb-i-niowasibat had already made, and has made a formal demand-
(a) either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and
(b) in the presence at least of two witnesses. This formality is calledTalb-i-ishhad (demand with invocation of witnesses)."
20. Even in the present legislation the necessary first demand has been mentioned as Talb-e- Muwathibat and no-doubt the series of judgment of this Court as well as of august Supreme Court of Pakistan are available, terming it to be a jumping demand and the basic theme behind enactment of this demand is that without any delay just coming to know about the sale the person interested to pre-empt the sale should show his intention. So far as matter of reference in hand is concerned, with regard to interpretation of meaning of sitting or meeting (Majlis) the words are available in the explanation of Talb-eMuwathibat whereas original text of section 13 sub section 1(a) states only performance of Talb-e-Muwathibat and in section 236 of the Muhammadan Law by D.F.Mulla referred supra sub section (1) states immediately declaring intention to assert the right. It has been further elaborated that Talb-i-muwathibat is (literally, demand of jumping, that is, immediate demand). The basic fact remains that it must be immediate. In our view when overall effect of the meaning as we have noted supra in various dictionaries and Feroz-ul-Lughat be considered, the same lead us to conclude that sitting means where the person receiving information was sitting or available and gains the knowledge through informer. Here meeting (majlis) shows the meeting of the informer with the preemptor. We are conscious of the fact that words used in any statute are to be interpreted in accordance with the intention of the legislature if visible from overall view of the statute, if not given specific meaning, the words which are understood in common parlance and in popular sense. No-doubt in the enactment the meaning ofsitting or meeting (majlis) have not been mentioned, overall view of the enactment as well as of section 236 of the Muhammadan Law by D.F.Mulla lead us to conclude that Talb-e-Muwathebat is the immediate demand and the explanation one given in section 13 mentioning that sitting or meeting (majlis) does not give the meaning of a group of persons as given in the judgment of learned Single Judge of this Court reported as PLD 2012 Lahore 1 "Minali v. Khizar Hayat and 6 others". If these meanings are given then unless in presence of at least two or more persons the plaintiff gains knowledge of sale he cannot pronounce Talb-e-muwathebat. Meaning thereby his knowledge if received only by the informer when he was alone cannot be said to be the information which interpretation will certainly be against the intention of the legislature.
4. In our view when a person gains knowledge of sale by any person, to whom we term as informer, this meeting of preemptor with informer is meeting (Majlis) in the light of explanation I to Section 13 of the Punjab Pre-emption Act, 1991, announcement of intention to pre-empt the sale by pre- emptor in the presence of informer alone is sufficient compliance of Talb-i-Muwathebat.
21. Furthermore we are of the view that the person even gaining knowledge on telephonic conversation through the informer if announces his intention to exercise his right to pre-empt the sale and a person who gains knowledge of sale through any means including a message through cell phone etc. If confirms his intention to pre-empt the sale through his reply to informer, this is sufficient compliance of Talb-e-Muwathebat. His knowledge through telephonic conversation or any other means will be meeting with theinformer in the sense mentioned in explanation 1 of section 13 of the Punjab Pre-emption Act, 1991. We have also gone through the judgment reported as 2014 YLR 774 "Ghulam Muhammad and another v. Mian Abdul Karim through L.Rs" wherein sitting and meeting have been defined, it has been held that "sitting" and "meeting" mentioned in section 13(1) does not require presence of more than two persons. In this view of the matter, we do not agree with the meaning given to "sitting" and "meeting" (Wills) mentioned in explanation 1 of section 13 of the Punjab Pre-emption Act, 1991 in the judgment reported as PLD 2012 Lahore 1 "Mutali V. Khizar Hayat and 6 others".
5. So far as merits of this case areconcerned, the plaintiff has pleaded in Para No. 3 of the plaint that plaintiff came to know about the sale on 22.9.1999 at 10:00 a.m through Muhammad Maalik in the presence of Nazeer Hussain in his house and he announced his intention to pre-empt the sale.
22. The plaintiff appeared as PW-1 but at the time of appearing as his own witness the plaintiff did not mention the presence of Nazeer Hussain at the time of knowledge of sale whereas Muhammad Maalik has stated the presence of Nazeer Hussain at the time of giving information of sale to the plaintiff. When Nazeer Hussain was produced as PW-5 he stated that he does not know that when, where and through whom plaintiff came to know about the sale. PW-5 has not supported the plaintiff. The outcome of this discussion is that plaintiff did not state in his statement about the presence of Nazeer Hussain at the time of knowledge of sale. There is only statement of Muhammad Maalik who shows the presence of said Nazeer Hussain but Nazeer Hussain when appeared as PW-5 has denied his presence at the time ofknowledge of sale to the plaintiff. The argument of learned counsel for the petitioner-plaintiff that the concession made by PW-5 to the plaintiff can be ignored, we are afraid that this contention has no force, statement of PW-5 shatters whole of the case of the plaintiff-petitioner when in the examination-in-chief he made the following statement:- ' It shows clear denial of presence of said witness at the time of knowledge of sale to the plaintiff.
23. 6.Further we have noticed that when this statement was made by the said witness in his examination-in-chief no effort was made by the plaintiff to get the said witness declared as hostile and no permission was sought from the court to let the counsel of the plaintiff to cross-examine the said witness. When it is so the statement made by the said witness is binding upon the plaintiff as plaintiff has produced him with his own choice. As we have noted supra the evidence of plaintiff with regard to "Talb-eMuwathibat" is contradictory. Admittedly pleading cannot be considered as evidence. When the pleadings about Talb-eMuwathibat mentioned in Para 3 of the plaint are supported by the only statement of PW-4 Muhammad Maalik and plaintiff himself has not stated the case pleaded by him whereas PW-5 has controverted the case of the plaintiff. In this view of the matter, we are of the considered view that plaintiff failed to prove performance of Talb-e- Muwathibat in accordance with law on the basis of contradictory evidence produced by him. We are fortified with the judgment of august Supreme Court of Pakistan reported as 2013 SCMR 721.
24. "Munawar Hussain and others v. Afaq Ahmed".
7. So far as Tarb-e-Ishhad is concerned, though in the written statement the defendant-vendee has admitted that notice was issued on 28.9.1999 but he has not admitted the receipt of notice. The witness who allegedly served the alleged notice of Talb-e-Ishhad, who produced the acknowledgement receipt as Exh.P1 is not specific about the fact that who received the notice, therefore, his statement is not helpful for the plaintiff as he stated that the registered letter was received by son of the vendee-defendant and simultaneously stated that the registered envelope was received by the defendant-vendee himself. He has admitted that on the acknowledgement receipt there is no signatures of the vendee-defendant. The statement of PW-3 Record Keeper is also not helpful as he is not the person who issued the receipt Exh.P.2. In this view of the matter, Talb-e-Ishhad has also not been proved. As it is clear now that in the light of the pronouncement of the august Supreme Court of Pakistan reported as 2007 SCMR 1105 "Muhammad Bashir and others v. Abbas Ali Shah", therefore, we are of the view that plaintiff failed to prove performance of Talb-e- Ishhad also in accordance with law. Though we do not agree with the findings recorded by the learned first appellate court with regard to Talb-e-Muwathebat and Talb-e-Ishhad, as a novel interpretation has been made by the learned Additional District Judge, but result is the same that plaintiff failed to perform Talb-e-Muwathebat and Talb-e-Ishhad, therefore, this civil revision stands dismissed.