MUHAMMAD AMEER BHATTI, J. --- This single judgment shall dispose of Civil Revision No,688-D/2011 and Civil Revision No, 689-D/2011 having same title i,e, 'Hasham Khan vs. Waheed Ahmed', as both these petitions involve common question of law, between the same parties, and directed against the concurrent findings of fact recorded by both the learned Courts below, whereby the suits instituted by the respondent-plaintiff were decreed by the learned trial Court vide judgments and decrees dated 23.09.2010 and appeals whereof, preferred by the petitioner-defendant were dismissed by the learned first Appellate Court vide its impugned judgment and decree dated 08.06.2011.
2. The facts relevant for decision of aforesaid revision petitions have been adequately elaborated in the impugned judgments; therefore. its needless to detail facts of the case. Suffice it to say that land-in-question in Civil Revision No,688-D/2011 measured as 17 marlas bearing Khasra No,2492, Khewat No,654/1032 whereas in Civil ,Revision No,689-D/2011 land is measuring 5-kanals 9marlas bearing Khasra No,2493, Khewat No,655/1033, both situated in the revenue estate of Village Sarwala, Tehsil and District Attock.
3. The principal point argued with vehemence by both the learned counsel for the parties, pertains to performance of Talb-i- Ishhad_ The two Courts below concluded that the Talbs have been performed by the pre-emptor in accordance with the provisions of Section 13 of the. Punjab Pre- emption Act, 1991, culminating in decreed the suit.
It is contended by the learned counsel for the petitioner that the Courts below have not only misread the evidence led by the pre-emptor-respondent but also overlooked the law pronounced by Hon'ble Supreme Court as well as this Court qua performance of Talb-i-lshhad. To substantiate his contention that notice of Talb-i- lshhad must be served sepcifically upon the vendee by obtaining his signatures on Acknowledgement due slip and not on some other person, he has placed reliance on 'Nawab Ali through General Attorney vs. Javaid Iqbal Nabi and others (PLD 2009 Lahore 49), Bashir Ahmed vs. Ghulam Rasool (2011 SCMR 762) and Khan Afsar vs. Afsar Khan and others (2015 SCMR 311).
Conversely, learned counsel for the respondent contends that both the learned Courts below have not committed any illegality or irregularity while rendering the impugned judgments, whereby suit of the respondent was concurrently decreed. Further contends that evidence produced by the plaintiff-respondent was properly and legally appreciated by two Courts leaving no room for this Court to exercise the jurisdiction, as contemplated by Section 115, C.P.C., as no misreading or non- reading of evidence has been committed by said Courts. Learned counsel has also placed reliance on Pervaiz and another vs. Muhammad Nawaz (2006 SCMR 4), Muhammad Tariq and 4 others vs. Asif Javed and another (2009 SCMR 240), Khan Afsar vs. Afsar Khan and others (2015 SCMR 311), Muhammad Shafi through L.Rs, and another vs. Aamir Hameed and others (2013 CLC 131), Khuda Bakhsh and others vs. Shams-udDin (2013 YLR 2674), Hayat Muhammad and others vs. Mazhar Hussain (2007 PSC 154), Dost Muhammad vs. Muhammad Inayat and 3 others (2004 CLC 1022) and Umar Khan vs. Abdul Ghaffar (2003 CLC 838).
4. I have carefully examined record of the case with able assistance of the learned counsel for the parties and also considered their arguments keeping in view the case law cited at bar.
5. It is admitted rather established from the record that the notice of Talb-i-Ishhad was sent by the plaintiff-respondent through registered post acknowledgment due at the address of the defendant-petitioner, as indicated on sale mutation, recorded in favour of the petitioner-vendee, so as to meet the mandatory requirement of law. It is also established and not disputed by any of the party that notice reached at the given address but owing to non-availability of the addressee- petitioner at his said address, the Postman returned the envelope alongwith the acknowledgement due with a report that the addressee was living abroad and this fact was sufficiently supported by producing the Postman as well as clerk of the Post-office. Particularly when that sealed envelope was tendered in evidence and same was opened by Court in presence of the parties and accordingly exhibited bare reading of which confirmed that notice of Talb-i-lshhad was correctly drafted showing the confirmation of the Talb-i-Ishhad but to fulfill the requirement of law as introduced in Section 13 of the Act ibid. Apparently, the basic and essential requirement to serve the notice upon the addressee-vendee-petitioner seems to have been fulfilled; however, it has to be examined on the touchstone of the law laid down by Hon'ble Supreme Court in the afore-referred judgments from both sides. The arguments of both the parties gave rise to the following question to be resolved:-- "Whether the notice, which undeniably was correctly sent at the address of the vendee, if not received on account of his absence established by producing Postman, would be presumed to be the true fulfillment of required Talb in accordance with the provisions of Section 13 of the Punjab Pre-emption Act, 1991?"
To find-out the answer of this query. I would first place reliance on the judgment referred by the learned counsel for the petitioner in Nawab Ali's case (PLD 2009 Lahore 49). In this case, the notice was sent to mother of vendee. who admittedly was living abroad and High Court held that notice ought to have been sent in the name of vendee at his permanent address in the country instead of his mother. However, it is added that if their address outside country could be ascertained, it could also be sent there as well, but the notice issued in the name of another person i,e, brother, mother, father of the vendee, has been disapproved. The ratio decidendi of the judgment forced me to conclude that the notices must have been sent at the permanent address of the vendees in the country and it will be considered sufficient compliance of the mandatory provision of law. However, exercise of sending of notices abroad if address is known, (where the vendee was residing/ living temporarily) in addition to sending of notice at his permanent address, has also been appreciated but not considered compulsory. Except this referred judgment by both the parties, no other case- law covers the issue of effect of service upon the defendant to be necessary and it has to be established by the pre- emptor through cogent evidence that the notice has been received by the addressee and in case of its non-receipt, the service will not be considered service upon the vendee.
6. In the case of Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) it was held as under:-- "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-empty but a notice served on the addressee to apprise him about his intention to pre-empty. 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."
22. Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun- e-Shahadat Order stood rebutted and it was for, the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done."
(2011 SCMR 1105), receipt of notice was refused, therefore, it was returned to the pre-emptor with report of 'refusal to receive' by the Postman. Accordingly the postal receipt and Acknowledgment Due containing the report of Postman qua the refusal to receive, were tendered in evidence but Postman was not produced to authenticate his report. Consequently Hon'ble Supreme Court held that when there is specific denial on behalf of the vendee regarding service of notice, the Postman must be produced to substantiate the effect of service upon the vendee.
In the case of Khan Afsar (2015 SCMR 311), despite the fact that acknowledgement due and receipt of dispatched notice was produced, the Postman, who got the signatures of the addressee, had not been produced and another Postman appeared in his statement; hence, the evidence of another Postman was discarded by the apex Court by holding that the same Postman was not produced, who obtained signatures of Rashid Khan and it was also held that Rashid Khan was not the addressee, the concerned person. All these judgments squarely provide support to the case of respondent, who not only produced all the relevant documents-postal receipt & Acknowledgment Due but also produced Postman, who verified his report although he deposed that he was informed by some female inside the house of the addressee about his non- availability at the address at the relevant time whereas in the report, it was specifically mentioned that the addressee was living abroad. Putting aside this minor discrepancy, it stands proved from the record that the notice, which was found at the opening of sealed envelope by the learned trial Court and exhibited accordingly, was correctly addressed as provided, in the disputed mutation.
Other than this. it was admitted by the petitioner-vendee while appearing as DW-1 that the address mentioned at the envelope and acknowledgment due was the same address where he was permanently residing and this address was also used for other communications/ correspondence. Since the respondent has sent the notice at the permanent address of the petitioner-vendee through registered post acknowledgment due, which was returned back with the report of Postman, who also verified the same while entering in the witness box as PW-2: viewed in this perspective, to my mind. requirement of law as envisaged under Section 13 of the Act ibid, stands fulfilled. In a case reported as Allah Ditta through L.Rs and others Vs Muhammad Anar (2013 SCMR 866), it was held that in case of denial of service or refusal to accept the notice, the Postman must be produced to verify that fact, which has sufficiently been discharged by the plaintiff-pre- emptor respondent by producing the Postman and no other mechanism was available to him to prove dispatch sending of notice by establishing that the permanent address of the vendee was correctly incorporated on the envelope and acknowledgment due and same was dispatched/ shipped through registered post acknowledgement due and all these relevant documents alongwith receipt of the Post office have been placed on record to prove this actuality that notice found its way to the addressed destination thus leaving no room for doubt for this Court to infer that requirement of law has not been fulfilled as provided by Section 13 ibid. "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."
22. Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun- e-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done."
The ratio of the above referred judgments is that the service of the vendee will be deemed to be effective regardless of the fact that either the notice was received by the addressee himself or it was returned back with the endorsement of the Postman qua refusal to receive the notice etc., but the service of other person whosoever he is, will not be acceptable even if the Postman is produced to prove that fact, The rationale behind this explication, as High Court inferred from reading of all the judgments available on this point is that in case of refusal or other endorsement like case in- hand, the same envelope alongwith acknowledgment due and receipt are always tendered in evidence and opened in Court to confirm that the notice of Talb-i-Ishhad has been correctly/validly drafted showing confirmation of Talb-iMuwathibat and sent and reached at its destination (to the addressee-vendee) to fulfill the requirement of Talb-i-lshhad as intent in Section 13 of the Act ibid. As regard the case of delivery of this notice to a person other than the addressee, whom the vendee has categorically denied remained unconfirmed, that is to say, whether the notice addressed to the vendee-address was the same tendered by the plaintiff in his evidence and production of Postman would also be not considered helpful.
7. No argument was urged on any other point from both sides.
8. In sequel to the above, it is held that concurrent findings are based on evidence led by the respondent and conclusions drawn by both the learned Courts below are in consonance with the dictum laid down by the apex Court of this country, which have the binding force in view of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. Consequently, I do not find any substance in both these petitions and the same stand dismissed with no order as to costs.