SHAHID WAHEED, J. The defendant has brought this second appeal to challenge the affirmative decree dated 21.07.2014 passed in a suit for possession through pre-emption by the Additional District Judge, Sheikhupura, on the grounds contemplated in: (i) Section 100(1) (a) CPC that decision is contrary to law; and (ii) Section 100 (1) (c)
CPC that a substantial error or defect in the procedure provided by the Code of Civil Procedure has produced error or defect in the decision of the case upon merit.
2. Dispute in this case related to land measuring 11-kanals 12 marlas situated within the revenue estate Buttar Tehsil and District Sheikhupura, which was sold to the predecessors of the appellants, that is, Wali Muhammad for a consideration of Rs.300,000/- vide mutation No.2015 dated 28.02.2006 (Ex.P4). This land was owned by Liaqat Ali, who was brother of the respondent-plaintif f, Ghulam Nabi. The case of the respondent-plaintif f was that although sale of the suit land was made surreptitiously yet he got knowledge of the same on 18.04.2006 at 8.00 a.m through Muhammad Siddique (PW-1) and Maqbool Ahmad (PW-4) at the Baithak of his house; that after getting knowledge a declaration to exerci se right of pre-emption was made by him on the ground of superior right; and, that Talb was repeated through a notice whereby request was made to the vendee to transfer the suit land in his favour . The averments made in the plaint were traversed by the vendee, Wali Muhammad, through a written statement. It was maintained in the written statement that plaintif f-respondent had neither made requisite Talbs in accordance with law nor was entitled to exercise right of pre-emption as he had participated in the sale of suit land.
3. The divergent stances canvassed in the pleadings were reduced into issues by the Trial Court vide order dated 18.10.2006. The instant appeal is only concerned with issue No.1 viz "whether the plaintif f has fulfilled requirements of Talbs?" The onus to prove the said issue was placed upon the plaintif f-respondent. The respondent-plaintif f as his own witness appeared before the Trial Court as PW-6. He in his statement admitted that vendor , Liaqat Ali, was his real brother and they were living without any conflict in a joint house situated in a village.
He also deposed that he got knowledge of the sale of the suit land on 18.04.2006 at 8.00 a.m. through Maqbool Ahmad and Muhammad Siddique; that on getting information a declaration to exercise right of pre-emption was made; that on 25.04.2006 the whole state of affairs was disclosed to Maqbool Ahmad clerk, who prepared the notice which was attested by Maqbool Ahmad and Muhammad Siddique and was dispatched from Post Office Kutchehry under registered cover . The first witness, who appeared on behalf of the plaintif f, was Muhammad Siddique (PW-1). This witness in his examination-in-chief did not disclose time at which he informed the plaintif f- respondent about the sale of the suit land. However , during course of cross examination he stated that he went to Ghulam Nabi at 10.00 a.m. The statement of this witness regarding the date of making Talb-i Muawathbit was consistent with the averments made in the plaint. As regard notice of Talb-i-Ishhad he stated that same was drafted by Maqbool Ahmad clerk which was signed by him and was dispatched through post office. The other witness who appeared on behalf of the plaintif f-respondent was Maqbool Ahmad (PW-4). He in his examination stated that on 18.04.2006 the plaintif f-respondent was informed about the sale of the suit land; that on getting information Ghulam Nabi on the ground of his superior right made declaration to exercise his right of pre-emption; that on 25.04.2006 Maqbool Ahmad clerk on our statements prepared a notice which was signed by him and dispatched to the vendee, Wali Muhammad. The respondent-plaintif f also produced Mirza Manzoor Ahmad, Postman, (PW-2). This witness in his statement stated that he was postman of the revenue estate Buttar; that he delivered the registered post No.189 to one girl at the house of Wali Muhammad; and, that he also obtaine d signatures of that girl on the acknowledgement card. He, however , did not produce the record as same had been destroyed. The pre-emptor also produced Riaz Ameen (PW-3). He was postal clerk in the Kutchehry Post Office, Sheikhupura. He in his statement stated that postal receipt No.189 dated 25.04.2006 (Ex.P1) was issued from his office. The last witness who appeared on behalf of the plaintif f-respondent was Maqbool Ahmad clerk (PW-5). He in his statement stated that notice of Talb-i-Ishhad (Ex.P2) was drafted by him which was read over to the plaintiff-respondent and witnesses; that notice was signed by the witnesses; and, that notice was sent under registered cover (Ex.P1) to the defendant. The counsel for the plaintiff-respondent in his statement tendered acknowledgement card (Ex.P3), copy of mutation No.2015 (Ex.P4), copy of Jamabandi for the year 1997-98 (Ex.P5) and a copy of Khasra Girdwari (Ex.P6). The evidence of the plaintiff-respondent stood closed vide order dated 29.09.2010.
4. After recoding plaintif f-respondent' s evidence the defendant, Wali Muhammad, died. According to order dated 09.02.2010 the date of death of the defendant was 26.12.2009. In the wake of death of defendant, his legal heirs, that is, present appellants were impleaded as defendants in the suit. The amended plaint impleading present appellants was filed. The present appellants, however , did not file amended written statement but relied upon the earlier written statement filed by their predecessor . On the side of the appellants only Shafaaqat Ali (appellant No.2) appeared before the Trial Court as DW-1. This witness in his examination-in-chief stated that respondent- plaintif f was aware of the sale of the suit land as he was the person through whom the sale was finalized in favour of his deceased father-vendee, Wali Muhammad; and, that the respondent-plaintif f had neither made any Talb nor sent any notice to his father . He, howev er, during course of cross examination admitted that Ghulam Nabi got knowledge of the sale of the suit land on 18 .04.2006.
5. On consideration of the matter , the Trial Court came to conclusion that although there was a very minor and trivial discrepancy as regard time, yet respondent-plaintif f and his witnesses had been consistent qua the date and place of making Talb-i-Muwathibat and thus it stood proved. As regard Talb i-Ishhad it was held that the same was proved by examining attesting witnesses of the notice of Talb-i-Ishhad (Ex.P2) . On the basis of afore-stated findings the Trial Court issued decree in favour of the pre-emptor-plaintif f, that is, respondent through judgment dated 08.09.201 1.
6. The defendant, feeling aggrieved, appe aled against the decree of the Trial Court. It was duty of the Court of first appeal to deal with all issues, as first appeal was a valuable right in which both questions of law and facts were to be considered and judgment in the first appeal was to address itself to all the issues of law and facts and decide them by giving discreet reasoning. Law is well settled that an appeal under Sectio n 96 CPC is a substantive right conferred by the Statue and it is continuation of the proceedings, which comes entirely upon the first Appellate Court carrying with it a right of re-hearing of law and facts as well as reviewing pleadings and evidences afresh. In the present case, the Additional District Judge, while deciding issue No.1, after recapitulating the statements of the witnesses cited some case law and recorded, " I fully endorse the findings of the trial court that there is very minor and trivial discrepancy as regard time of the Talb-i-Muwathibat in the cross examination of Muhammad Siddique who mentioned that we went to plaintiff at 10.00 a.m." As regard Talb-i-Ishhad the first Appellate Court returned its findings by holding "same has been proved by the plaintiff by producing marginal witnesses of the notice of Talb-i- Ishhad and in that notice Talb-i-Muwathibat has been reiterated." The Additional District Judge without recording his own reasons had just repeated the findings of the Trial Court and dismissed the appeal vide judgment and decree dated 21.07.2014. This was nothing but dereliction of duty and complete failure to exercise jurisdiction rendering the judgment and decree dated 21.07.20 14 perverse and arbitrary apart from grossly illegal. Ordinarily in these circumstances the case is remanded to the first Appellate Court to give its findings after proper appreciation of evidence. However , I am not inclined to adopt this course of action so as to save parties from the agony of further litigation.
7. First objection of the appellants is that since the respondent had not proved the making of Talb-i-Muwathibat, he was not entitled to the decree as prayed for in the plaint. Elaborating this objection the appellants' counsel submits that in order to be entitled to the right of pre-emption the pre-emptor-plaintif f should have proved through convincing evidence the date, time and place of making Talb-i-Muwathibat; and, that the statement of the plaintif f qua the time of making Talb-i-Muwathibat did not tally with the statement of PWs and thus it could not be held that the plaintif f-respondent had proved the making of Talb-i-Muwathibat. Responding to this objection respondent' s counsel submits that the plaintif f-respondent in paragraph 2 of the plaint stated that he had got knowledge of the sale of the suit land on 18.04.2006 at 8.00 a.m. This averment stood corroborated from the statement which was made by the respondent while appearing before the Trial Court as PW-6; and, that the time stated by Muhammad Siddique (PW-1) in his cross examination , that is, 10.00 a.m though did not match with the time stated by plaintiff- respondent, yet it could be ignored being trivial in nature. He concluded that since statements of witnesses are consistent with regard to date and place of making Talb-i-Muwathabit, findings of the Trial Court warrant no interference.
8. The arguments canvassed at Bar are to be addressed according to the provisions of Section 13 of the Punjab Pre-emption Act, 1991 which envisage that for claiming right of pre-emption strict proof for observance of formalities of making of Talbs would be essential. The date, time and place are essential components to prove valid making of Talb-i-Muwathibait. In the present case difference of opinion between the learned counsel for the parties is with regard to time of making Talb-i-Muwathibat. Thus, in order to resolve this difference, it is expedient to examine contents of the plaint and statements of the witnesses. The plaintiff in paragraph 2 of the plaint stated that he had got knowledge of the sale of the suit land at 8.00 a.m. This time was reiterated by the pre-emptor in his statement before the Trial Court while appearing as PW-6. The plaintiff-respondent was required to prove this fact through evidence. He, therefore, produced Muhammad Siddique, one of the informers, before the Trial Court as PW-1. This witness in his examination-in-chief did not state the time at which the plaintiff made Talb-i-Muwathibat. However, during course of cross examination he stated that he went to the plaintiff at 10.00 a.m. This time did not match with the time stated in the plaint or by the plaintiff in his statement. The other witness was Maqbool Ahmad (PW-3). The statement of this witness is silent about time at which the plaintiff got knowledge and made Talb-i-Muwathibat. Thus, his statement was inconsequential to prove time. Here a question arises whether the discrepancy with regard to time stated by the plaintiff and his witness Muhammad Siddique (PW-1) was ignorable being trivial in nature. Answer to this question is in the negative for the reason that law insists on utmost promptitude in the making of first Talb i.e. Talb-i-Muwathibat. To prove factor of time convincing, reliable and consistent statements of the witnesses is mandatory requirement of law, as from the date and time of making Talb-i-Muwathibat, the period for sending notice of Talb-i-Ishhad is calculated. This is exactly what the Hon'ble Supreme Court of Pakistan has held in the case of Mian Pir Muhammad and another v Faqir Muhammad through LRs and others (PLD 2007 SC 302). In this precedent case the Full Bench of the Hon'ble Supreme Court of Pakistan while examining importance of date and time of making Talb-i-Muwathibat has held that great emphasis and importance is to be given to this word in making Talb-i-Muwathibat and it is necessary that as soon as the pre-emptor acquired knowledge of the sale of pre-empted property he should make immediate demand for his desire and intention to assert his right of pre- emption without the slightest loss of time. According to the dispensation which has been reproduced hereinabove after performing Talb-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-Ishhad 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 subsections (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 Talb-i Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (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 Muwathibat then it would be very difficult to give effect fully to subsection (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 Talb-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-Ishhad. 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 perspective 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. This Court in the case of Rana Muhammad Tufail v Munir Ahmed and another (PLD 2001 SC 13), declined to grant leave to appeal maintaining the judgment of the learned High Court as there was four hours delay in making the Talb-i-Muwathibat from the time of receiving the knowledge of the sale. In the case of Mst. Sundri Bai v Ghulam Hussain (1983 CC 2441) High Court of Sindh, held the delay of 1-1/2 hour in making Talb-i-M uwathibat to be fatal to the scheme of Shufa when the pre-emptor was residing on the first floor while the purchaser/respondent was residing on the ground floor of the same building. In another case of Mst.Kharia Bibi v Mst. Zakia Begum and 2 others (C.A.1618 of 2003) this view was endorsed ". On the basis of principle settled in the case of Mian Pir Muhammad' s case the discrep ancy between statements of the plaintif f (PW-6) and Muhammad Siddique (PW-1) qua the time of making Talb-i-Muwathibat was not trivial and, thus, could not be ignored. In fact, it was a material discrepancy which created doubt in respect of making Talb-i- Muwathibat and benefit thereof would go to the vendee. The conclusion, therefore, is that respondent-plaintif f had not made first Talb, that is , Talb-i-Muwath ibat immediately on getting information about the sale of suit land. Thus, objection raised by the appellants is valid and findings of the Courts below with regard to making of Talb-i- Muwathibat are hereby reversed.
9. The second objection of the appellants is that the respondent had also not made Talb-i-Ishhad in accordance with law. The grouse of the appellants is that since notice of Talb-i-Ishhad (Ex.P2) was not personally served upon the vendee, that is, Wali Muhammad, and, thus, merely on the basis of statement of the attesting witnesses of Ex.P2 it could not be held that second Talb was made by the respondent-plaintif f in accordance with law.
Controverting this objection, respondent' s counsel submits that notice of Talb i-Ishh ad (Ex.P2) was attested by two witnesses, i.e. Muhammad Siddique (PW-1) and Maqbool Ahmad (PW-3) and the same was sent to the vendee under registered cover acknowledgment due; that the said facts stand proved from the statements of witnesses; and, that on the basis of principle settled by the Hon'ble Supreme Court of Pakista n in the case of Ghulam Abbas and another v Manzoor Ahmad and another (2008 SCMR 1366 ), Courts below rightly returned their findings that making of Talb-i-Ishhad was proved. The law governing this objection is contained in subsection (3) of Section 13 of the Punjab Pre-emption Act, 1991 which envisages that where a pre-emptor has made Talb-i-Muwathibat, 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 acknowledgment due, to the vendee, confirming his intention to exercise right of pre-emption. It means that Talb-i-Ishhad shall be made by (a) written notice; (b) attested by two truthful witnesses; (c) sent under registered cover; and (d) acknowledgment due.
These four formalities are mandatory where the facility of post office is available. Admittedly in the present case, facility of post office was available to the pre-emptor (respondent) and, therefore, onus was on him to prove that while making Talb-i-Ishhad said formalities were strictly observed. In order to discharge the burden of proving Talb- i-Ishhad, the pre-emptor -respondent was required to first aver in his plaint that notice (Ex.P2) was sent under registered cover along with acknowledgment due request. In the present case, not only contents of the plaint but also statements of all the witnesses, who appeared on behalf of the pre-emptor-respondent, are silent with respect to sending of notice (Ex.P2) with acknowledgment due and, therefore, unless perm itted by the Trial Court, the pre- emptor-respondent could not have produced any evidence on the point of notice under registered cover being posted with acknowledgment due. Though the acknowledgment due card (Ex.P3 ) was tendered without getting permission of the Trial Court but as per principle settled by the Hon'ble Supreme Court of Pakistan in the cases of Abdul Majid Mia v Moulvi Nabiruddin Pramanik and 3 others (PLD 1970 SC 465), Khan Muhammad Yousaf Khan Khattak v S.M. Ayub and 2 other s (PLD 1973 SC 160) and Federation of Pakistan through Secretary Ministry of Defence and another v Jaffar Khan and others (PLD 2010 SC 604) it could not be taken into consideration as the same was not brought on record through any witness but in the statement of counsel.
Consequently , keeping in view the pleadings and evidence on record it can safely be held that the respondent-pre- emptor had not been able to discharge his burden to prove that notice of Talb-i-Is hhad was issued in accordance with requirement of Section 13 (3) of the Punjab Pre-emption Act, 1991. Such default as per principle settled by the Hon'ble Supreme Court of Pakistan in the cases of E.A. Evans v Muhammad Ashraf (PLD 1964 SC 536), Abdul Qayyum v Muhammad Rafique (2001 SCMR 1651 ) and Basharat Ali Khan v Muhammad Akbar (2017 SCMR 309) was fatal.
10. There is another aspect of the matter which lends credence to the objection that second demand, Talb-i-Ishhad, was not made in accordance with law. According to subsection (3) of Section 13 of the Punjab Pre-emption Act, 1991 the pre-emptor is required to send notice of the Talb-i-Ishhad to the vendee confirming his intension to exercise right of pre-emption. The expression "sending a notice" occurring in subsection (3) of Section 13 of the Punjab Pre-emption Act, have been under consideration of the Hon'ble Supreme Court of Pakistan. The first judgment on the subject was rendered in the case of Ghulam Abbas and another v Manzoor Ahmad and another (2008 SCMR 1366). This judgment was made on 24.12.2003. In this case three Members Bench of the Hon'ble Supreme Court of Pakistan held that when a notice of Talb-i-Ishhad was sent through registered post acknowledgement due at the correct address of the vendee then by virtue of Section 26 of the General Clauses Act it would be presumed that it had been delivered to the vendee. The second judgment in the series is Muhammad Bashir and others v Abbas Ali Shah (2007 SCMR 1105). This judgment was delivered on 23.02.2007. In this case three Members Bench of the Hon'ble Supreme Court of Pakistan took a different view and interpreted expression "sending a notice" as serving a notice and while doing so it was held that it was imperative for the plaintiff, in order to succeed in a suit for pre-emption, to produce evidence, including postman to prove that in fact notice was personally served upon the vendee or that he refused to accept the notice, which was sent at his correct address. The principle settled in the case of Abbas Ali Shah (supra) was affirmed and reiterated in the case of Bashir Ahmad v Ghulam Rasool (2011 SCMR 762) and Allah Ditta through his LRs and others v Muhammad Anar (2013 SCMR 866). Finally, the three Members Bench of the Hon'ble Supreme Court in the case of Khan Afsar v Afsar Khan and others (2015 SCMR 311) again examined the provisions of Section 26 of the General Clauses Act, 1956 and requirement of making of Talb-i-Ishhad. After examining provisions of law and different precedents, the Hon'ble Supreme Court of Pakistan held that general law as contained in Section 26 of the General Clauses Act, 1956 would not be applicable in the case of making of Talb-i- Ishhad. In the light of above, it now stands settled that expression "sending a notice" has been used in Section 13
(3) of the Punjab Pre-emption Act, 1991 in a wider sense to convey the idea of "serving a notice" upon vendee. In the case on hands the appellants had denied the receiving of any notice of Talb-i-Ishhad, thus, a heavy burden was upon pre emptor-respondent to prove that notice of Talb-i-Ishhad (Ex.P2) was served upon the vendee. In order to discharge this burden, the respondent produced Manzoor Ahmad, Postman, (PW-2). This witness in his examination-in-chief stated that registry No.189 was delivered to one girl at the house of Wali Muhammad, vendee.
Even name of that girl was not disclosed by the said witness. The statement of PW-2 gives rise to a question as to whether the delivery of notice of Talb-i-Ishhad to a girl, whose name and relation with the vendee was unknown, would be valid. Answer to this question may be given by referring to the case of Munawar Hussain and others v Afaq Ahmad (2013 SCMR 721). In that case vendees were two brothers and both notices of Talb-i-Ishhad were sent upon one vendee. It was pleaded therein that service upon co-vendee would be sufficient to make Talb-i- Ishhad. This plea was repelled, and it was held that service of notice on co-vendee was not backed by any provisions of law and, therefore, it was not tenable. Admittedly , in the present case, service of notice of Talb-i- Ishhad (Ex.P2) was not personally effected upon the vendee, Wali Muhammad and, thus, taking light from the case of Munwar Hussain (supra), it is held that it was not service in the eye of law. In these circumstances the only conclusion which may be drawn is that the respondent had failed to make Talb-i-Ishhad in accordance with law .
11. Needless to observe here that in order to be entitled to the right of pre emption a pre-emptor should make Talb-i-Muwathibat and Talb-i-Ishhad. They are condition precedent to exercise right of pre-emption. The respondent-pre-emptor, in the present case, had not made Talbs in accordance with law and, therefore, he was not entitled to decree as prayed for in the plaint. This aspect of the matter was not considered by the Courts below and, therefore, their decisions being contrary to law are not sustainable in the eye of law. This second appeal is, therefore, allowed. Decrees of the Courts below are set aside and consequently suit of the respondent is dismissed with no order as to costs.