SHAHID WAHEED,J. Undaunted by failure in two Courts below the pre-emptor has filed this petition under Section 115 CPC to seek revision of the decrees whereby his suit for possession through pre-emption was dismissed.
2. Dispute in this case related to land measuring 16-kanals comprising khewat No.53 khatuni No.149 to 159 situated at Mauza Boray Outhi, Tehsil Ferozewala, which was owned by one Riasat Ali. The suit property was sold to the respondents vide registered sale deed No.6822 dated 28.11.1998 for a consideration of Rs.160,000/-. The sale was sought to be pre-empted by the petitioner on the ground of his superior right with the assertion that he had made requisite Talbs in accordance with law. The claim set up in the plaint was controverted by the respondents-vendees through a written statement. It was maintained in the written statement that since the petitioner had failed to make requisite Talb in accordance with law, he was not entitled to the decree as prayed for in the plaint.
3. On pleadings issues were framed and parties were directed to adduce evidence in support of their respective claims. Evidence was accordingly led before the learned Trial Court. Pivotal issue in the instant case was additional issue No.2, that is, "whether the plaintiff has fulfilled the requirements of Talbs in accordance with law".
On consideration of the matter, the learned Trial Court came to the conclusion that the petitioner after getting knowledge of the sale of the suit property had not made his immediate demand declaring intention to exercise the right of pre-emption in accordance with Section 13 of the Punjab Pre-emption Act, 1991. On the basis of said conclusion learned Trial Court decided the said additional issue No.2 against the petitioner; and, as a result thereof the suit was dismissed vide decree dated 25.04.2011 through judgment of even date. The petitioner appealed against the decree of the learned Trial Court, which met the same fate. The learned first Appellate Court while concurring with the findings of the learned Trial Court dismissed the appeal vide decree dated 24.01.2012.
4. The ground to challenge the decrees of the learned Courts below is that the petitioner/pre-emptor after getting knowledge of the sale of the suit property had made immediate demand, that is, Talb-i- Muwathibat, by declaring his intention to exercise his right of pre emption and this fact stands established from his statement which he made before the learned Trial Court while appearing as PW-5; and, that since the statement of the petitioner and other witnesses was mis read and non-read, the decrees of the Court below are not sustainable in law .
5. The above stated ground raises a mixed question of law and facts. The law on the subject is that a person who intends to advance a claim based on the right of pre-emption qua the property which has been sold to another, must immediately on receiving information of the sale, express in explicit terms his intention to claim the property.
The intention must be formulated in the shape of a demand. Though no express formula is necessary yet the assertion of the right (or what is called a demand) must be expressed in unequivocal language. Now in the light of above stated principle of law, the statement which was made by the petitioner/pre-emptor in his examination-in- chief is evaluated. The petitioner while appearing before the learned Trial Court as PW-5 stated that he got knowledge of the sale of the suit property on 07.03.1999 at 4:00 p.m. at his Dera through Karamat Ali, (PW-1) in the presence of Nisar Ahmad (PW-4) and Asghar Ali (PW 2); that after getting information he declared that he had a superior right of pre-emption; and, that he was in need of the land. The exact words uttered by the petitioner in his examination-in-chief are as follows: {{URDU TEXT}} The above statement does not evince any desire on the part of the petitioner to avail himself of his right. Since the right to pre-emption is strictissimi juris, failure to perform first demand, that is, Talb-i Muwathibat by the petitioner declaring his intention to exercise the right of pre-emption in accordance with requirement of the law would defeat the claim.
6. There is another aspect of the matter . In the present case the suit property was sold to the respondents vide registered sale deed No.6822 dated 28.11.1998 for a consideration of Rs.160,000/-. It was the claim of the petitioner that he got knowledge of the said sale on 07.03.1999 through Karamat Ali (PW-1) at his Dera. In order to prove this assertion the petitioner got examined Karamat Ali. This witness in his cross examination admitted that after 2/ 2 /2 months of sale he got information about the sale of the suit property through his sister; and, that on the same date he informed the petitioner about the sale of suit property . The afore said statement suggests that Karamat Ali (PW-1), computing the perio d from the date of registration of sale deed, got knowledge of the sale somewhere in mid-February 1999; and, that the petitioner also got knowledge of the sale of the suit property on the same date. This date did not tally with the date (i.e 07.03.1999) on which allegedly the petitioner got knowledge of the sale of the suit property . This creates doubt in respect of making of Talb-i Muw athibat in accordance with law and, thus, benefit thereof must go to the vendees-respondents.
7. The second Talb which was required to be proved by the petitioner was Talb-i-Ishhad. It was maintained in the plaint that on 15.03.1999 notices of Talb-i-Ishhad duly attested by two truthful witnesses under registered cover acknowledgement due were sent to the respondents. It is now well-settled that it is imperative for the plaintif f/pre- emptor , in order to succeed in a suit for pre-emption, to produce evidence, including concerned postman to prove that in fact notices of Talb-i-Ishhad were served upon the vendees or that they refused to accept the notices, which were sent at their correct addresses. In this regard reference may be made to the cases of Bashir Ahmad v Ghulam Rasool (2011 SCMR 762) and Allah Ditta through his LRs and other v Muhammad Anar (2013 SCMR 866) and KHAN AFSAR v. AFSAR KHAN and others (2015 SCMR 311). The petitioner being conscious of the said requirement of law produced Abdul Hameed, postman, post office Shahdara (PW-3) before the learned Trial Court. The said witness in his examination-in chief stated that postal receipts bearing Nos.813 to 818 were issued from his post office. The said witness, however, did not produce record as the same had allegedly been destroyed. Thus statement of this witness was inconsequential. The petitioner was required to produce concerned postman to prove service of notice of Talb-i Ishhad which was not done. This omission indicates that notices of Talb-i-Ishhad were not served upon the respondents-vendees and, therefore, making of second Talb is not proved.1
8. Since the petitioner had failed to make Talbs in accordance with Section 13 of the Punjab Pre-emption Act, 1991, he was not entitled to the decree for possession of the suit property as prayed for in the plaint. The decrees of the Courts below do not suffer from any jurisdictional defect or procedural irregula rity and, thus, no interference therewith is called for .
9. In the sequel, this petition is dismissed with no order as to costs.