MALIK SHAHZAD AHMAD KHAN, J.--- This civil revision under section 115 of C.P.C. has been filed against the impugned judgment and decree dated 20.02.2010, passed by learned Civil Judge, Sohawa, whereby the suit for possession through the right of preemption, filed by Mst. Naseem Akhtar (respondent/plaintiff), was decreed, as well as, against the impugned judgment and decree dated 30.05.2012, passed by the learned Additional District Judge, Jhelum, whereby the appeal filed by Mst. Amna Bi and 05 others (petitioners/ defendants) against the abovementioned judgment and decree dated 20.02.2010, passed by the learned Civil Judge, Sohawa, was dismissed.
2. As per brief facts of the present case, the respondent/plaintiff Mst. Naseem Akhtar, filed a suit for possession through the right of preemption, in respect of the land, fully described in the head- note of the plaint. The predecessor-in-interest of the petitioners/defendants namely Muhammad Shafi contested the said suit by filing his written statement but he died during the pendency of the suit and after his death the petitioners being legal heirs of Muhammad Shafi were impleaded as defendants in this case. Out of the divergent pleadings of the parties, the learned Civil Judge, Sohawa framed the following issues:- ISSUES.
1.Whether the suit is mala fide? OPD 2.Whether Rs.50,000/- was bonafidely fixed as sale price of the suit property and actually paid?
OPD 3.If issue No.2 is answered in the aegative, what was the market value of the suit property at the time of alleged sale? OPPs - 4.Whether the plaintiff has superior right of pre-emption against the defendant? OPP Whether the plaintiff has fulfilled the requirements of Talbs? OPP 6.Whether the plaintiff is entitled to the decree of possession through pre-emption as prayed for?
OPP 7.Relief.
After recording of evidence and hearing arguments of learned counsel for the parties, the learned Civil Judge, Sohawa decreed the suit, filed by the respondent/plaintiff vide the impugned judgment and decree dated 20.02.2010. An appeal was filed by the petitioners/defendants against the said judgment and decree of the learned Civil Judge, Sohawa, which was dismissed by the learned Additional District Judge, Jhelum vide the impugned judgment and decree dated 30.05.2012, hence the present civil revision before this court.
3. On the last date of hearing the instant case was adjourned on the request of learned counsel for the respondent as he wanted to further prepare his case but today despite repeated calls since morning with different intervals, no one has entered appearance on behalf of the respondent. The name of learned counsel for the respondent is duly reflected in the cause list issued for today but there is no intimation regarding any reason of his absence. The court time is about to be over As it is a civil revision, which pertains to the year 2012 and the same has been printed in the red cause list issued by the office regarding the category of oldest cases and it has specifically been mentioned in the said list that no adjournment will be granted in the "oldest case" category, therefore, the respondent is proceeded against ex-parte and I proceed to decide the instant civil revision after hearing arguments of learned counsel for the petitioner and perusal of the record.
4. It is contended by learned counsel for the petitioners that the respondent/plaintiff has miserably failed to prove the performance of Talbs in accordance with the law; that respondent/plaintiff herself did not appear in the witness box and as the fact regarding the making of Talb-i- Muwathibat is based upon personal knowledge which cannot be proved through attorney, therefore, the suit filed by the respondent/plaintiff was liable to be dismissed; that the courts below have wrongly held in their impugned judgments that as the respondent/plaintiff was an old Parda Nasheen lady, therefore, she can produce evidence through her attorney because the abovementioned ground was not mentioned in the plaint of the respondent; that the attorney deed (Ex.P3) was executed by the respondent/plaintiff in favour of her husband namely Muhammad Jawan (PW-3) on 13.01.2007, whereas the Talbs in this case were performed in the year 2005 and as the attorney deed (Ex.P3) was not executed by the respondent/plaintiff before the making of Talbs, therefore, no evidence about the performance of Talbs can be produced in this case by the respondent/plaintiff through her attorney; that Muhammad Jawan (PW-3), who was attorney of the respondent/plaintiff appeared in the witness box as PW-3 but he did not mention the place of making of Talb-i-Muwathibat, which is fatal to the case of the respondent/plaintiff; that the respondent/plaintiff did not produce the postman in the witness box in order to establish that the notice of Talb-i-Ishhad was served upon the predecessor-in-interest of the petitioners/defendants and as such the suit of the respondent/plaintiff was liable to be dismissed; that the predecessor-in-interest of the petitioners was also a co-sharer in the suit land and this fact was admitted by the attorney of the respondent/ plaintiff namely Muhammad Jawan (PW-3) during his cross-examination but the Courts below have misread the evidence of the above- mentioned witness while passing the impugned judgments and decrees; that the impugned judgments and decrees have been passed against the law and facts of the present case and the same are result of misreading and non reading of evidence, therefore, the same may be set aside.
In support of her contentions, learned counsel for the petitioners has placed reliance on the judgments reported as "Mst. Lalan Bibi and others v. Muhammad Khan and others" (2007 SCMR 1193), "Sh. Sajid Mahmood and others v. Fazal Ahmed and others" (2004 SCMR 86), "Falak Sher Khan and another v. Mir Qalam Khan and another" (1995 CLC 1077), "Mst. Gul Rangeena v. Khushal Khan"
(1999 CLC 831) and "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866)
5.Arguments heard. Record perused.
6.The pre-emption is a feeble right and the respondent/pre-emptor was bound to prove the performance of Talbs strictly in accordance with the law, as provided under section 13 of the Punjab Pre-emption Act, 1991. I have noted that Muhammad Jawan, who was attorney of the respondent/plaintiff appeared in the witness box as PW-3. Although he has mentioned the date and time of making of Talb-i-Muwathibat by the respondent/plaintiff but he did not mention the place of making of the said Talb. The abuvementioned omission on the part of Muhammad Jawan (PW-3) was fatal to the case of respondent/plaintiff because the respondent/plaintiff was duty bound to prove the specific date, time and A place of making of Talb-i-Muwathibat in order to establish that she made the said Talb in the same Majlis, before its dispersion, where she received information about the sale of suit property and as no place about the performance of Talb-i- Muwathibat has been mentioned by the attorney of the respondent/plaintiff i.e., Muhammad Jawan (PW-3) in his statement recorded by the learned trial court, therefore, the suit of the respondent/plaintiff was liable to be dismissed on this score alone. Reference in this respect may be made to the case of "Mian Pir Muhammad and another v. Faqir Muhammad" (PLD 2007 Supreme Court 302).
7.It is also noteworthy that the predecessor-in-interest of the petitioners/defendants, in his written statement, denied the performance of Talbs by the respondent/plaintiff. In the circumstances, the respondent/plaintiff was obliged to prove the performance of Talb-Isahhad in accordance with the law and service of notice of Talb-iIshhad on the predecessor-in-interest of the petitioners/defendants.
Although the respondent/plaintiff produced in the witness box Muhammad Farooq, Registry Clerk of the Post Office Sohawa as PW-1 and Muhammad Riaz, Branch Postmaster of the post office Gadarriam, Tehsil Sohawa as PW-2, but the concerned postman namely Muhammad Altaf, who statedly effected the service of notice of Talb-i-Ishhad on the predecessor-in-interest of petitioners/ defendants has not been produced in the witness box, which was also fatal to the case of the respondent/ plaintiff but the said fact has not been properly appreciated by the Courts below while passing the impugned judgments and decrees. Reliance in this context may be placed on the case of "Allah Ditta through L.Rs and others v. Muhammad Anar" (2013 SCMR 866). Relevant part at page 868 of the said judgment reads as under:-- "As regards, the issuance of notice of Talb-i-Ishhad is concerned, admittedly the postman has not been examined by the respondent pre-emptor in terms of the law laid down in 'Muhammad Bashir and others v. Abbas Ali Shah' (2007 SCMR 1105). The argument of the respondent's side that the attorney of the petitioner while appearing as DW-1 has admitted the receipt of the notice and, therefore, the respondent-plaintiff was not obliged to prove the same, suffice it to say that the affirmative onus to prove Talb-i-Ishhad was on the plaintiff and as the petitioner had denied the factum in the written statement, therefore, notwithstanding any subsequent admission of the defendant's 'attorney, it was obligatory on the plaintiff-pre-emptor to have proved the sending of notice by leading affirmative evidence, which undoubtedly required the production and examination of the postman. This vital aspect has also eluded the attention of the two Courts below."
Similar view was taken by the apex court of the country in the cases reported as "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) and "Bashir Ahmed v. Ghulam Rasool" (2011 SCMR 762).
8. I have also noted that respondent/plaintiff did not appear in the witness box to prove the performance of Talbs and she attempted to prove the performance of Talbs through her husband/attorney namely Muhammad Jawan (PW-3). The learned Courts below accepted the evidence produced by the respondent/plaintiff through her attorney on the ground that the respondent/plaintiff was an old and Parda Nasheen lady, therefore, she can produce evidence through her attorney. Although Muhammad Jawan (PW-3) stated that his wife (respondent/ plaintiff) was a sick and Parda Nasheen lady, therefore, she has appointed him (Muhammad Jawan) as her attorney to adduce evidence in this case on her behalf but in the special power of attorney (Exh.P3), the respondent/plaintiff has simply mentioned that she was a female, therefore, she has appointed her husband namely Muhammad Jawan as her attorney to adduce evidence on her behalf. She has nowhere mentioned in the said document (Exh.P3) that she was a Parda Nasheen, sick or old lady. Moreover, no such ground was taken by the respondent/ plaintiff in her plaint, therefore, she cannot lead evidence out of her pleadings. The evidence produced in this respect by the respondent/ plaintiff which was out of her pleadings has wrongly been relied upon by the courts below. Reliance in this respect may be placed on the judgments reported as "Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another"
(2000 SCMR 1172) and "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336).
9. It is further evident from the perusal of record that Talb-i-Muwathibat was made by the respondent/plaintiff on 10.04.2005, Talb-i-Ishhad was made on 13.04.2005 and Talb-i-Khusumat was performed by her on 18.04.2005, whereas the attorney deed (Exh.P3), in favour of Muhammad Jawan (PW-3) was executed by the respondent/plaintiff on 13.01.2007. Talbs were made in the year 2005, whereas the attorney deed (Ex.P3) in favour of Muhammad Jawan (PW-3) was executed by the respondent/plaintiff in the year 2007 i.e., after about two years from the making of Talbs. It is, therefore, clear that at the time of making of Talbs Muhammad Jawan (PW-3) was not an attorney of the respondent/plaintiff. As Muhammad Jawan (PW-3) was not attorney of the respondent/plaintiff at the time of making of Talbs therefore, he cannot prove the performance of Talbs in this case on behalf of the respondent/plaintiff. I may refer here, the case of "Salma and another v. Manzoor Hussain and another" (1996 CLC 623), wherein at page No.626, this Court has held as under:- "Both the pre-emptors did not figure in the witness box to assert and establish this aspect of the matter and an adverse presumption can easily be drawn against them. I pass an order accordingly. The fact of the matter is that both Mst. Salma and Mst. Naziran petitioners/pre- emptors did not make Talb-iMuwathibat as agitated by them. The statements of the P. Ws in this matter are nothing enough, Talb-i-Muwathibat made by Muhammad Ramzan husband of Mst.
Salma and behnoi of Mst. Naziran has no legal force. It is in the cross-examination of the said Muhammad Ramzan that when Talb-i-Muwathibat was made by him he was not the Special Attorney of both the pre-emptors. According to Explanation I to subsection (1) of Section 13 of the Punjab Pre-emption Act, 1991 Talb-i-Mmvathibat 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. There is no provision in the Punjab Pre-emption Act, 1991 that a husband or a Behnoi, on behalf of the female pre-emptor is entitled to make Talb-i-Muwathibat.
In the eyes of law the person includes a male and a female. In the scheme of Punjab Pre-emption Act, 1991 no distinction has been made between the male and female in the matter of exercise of right of pre-emption starting from Talb-i-Muwathibat to Talb-i-Khushmat. The women in the country are demanding the equal rights on merits and no exception can be granted/allowed towards the enforcement of any statutory/legal right. As such within the purview of section 13 of the Punjab Pre-emption Act, 1991 it was incumbent upon both Mst. Salma and Mst. Naziran pre- emptors to establish that they made the demand of pre-emption in the sitting or meeting (Majlis) in which they had come to know of the sale. This being the factual and legal position the matter which emerges is that Talb-iMuwathibat has not been established by both Mst. Salma and Mst.
Naziran pre-emptors. (Underlying and bold supplied for emphasis).
Similarly in the cases of "Mst. Salma Bibi v. Manzoor Hussain and others" (1996 SCMR 1067) "Mst.
Waziran alias Faiq Elahi v. Abdul Sattar and others" (1996 CLC 682), it was held that the performance of Talbs cannot be proved through an attorney, who was not appointed as an attorney of the plaintiff/pre-emptor, at the time of making of Talbs.
10. The judgment relied upon by the Courts below in this regard in the case of "Muhammad Hanif v.
Mst. Munawar Bi alias Munawar Noor" (1999 SCMR 2230), is not helpful to the case of respondent/ plaintiff because the said judgment was passed on the ground that the plaintiff of the said case was a Parda Nasheen old lady, therefore, she had the right to produce evidence through her attorney, whereas, at the cost of repetition, it is observed that neither the ground of old age nor the ground of Parda Nasheen lady was taken by the respondent/plaintiff in her plaint or in her attorney deed (Ex.P3). In the case of Talb-iMuwathibat, which is a pure act of personal nature, the performance of said Talb can be proved by the pre-emptor himself/herself as the said fact can only be described amicably by the party himself/herself. The bonafidies of a pre-emptor/plaintiff can only be checked when such plaintiff/pre-emptor volunteers as a witness and surrenders to subject himself/herself for cross-examination. The failure of the plaintiff/respondent to appear personally in the witness box and to depose about the Talb-i-Muwathibat without furnishing any valid reason for her non-appearance is a factum that seriously reacted on the bona fidies and credibility of the respondent/pre-emptor. I may refer here the case of "Falak Sher Khan and another v. Mir Qalam Khan and another" (1995 CLC 1077), where in at page No.1079, it is observed as under:- - "5. Another damaging aspect of the case is that the suit was brought by two pre-emptors namely Mir Qalam and Mir Ghani Shah. The entire evidence qua Talb-e-Muwathibat remains confined to Mir Ghani Shah who stands non-suited in the present case leaving ONLY Mir Qalam in the field who has never appeared in Court to allege as to when he made the Talb and when he attained the knowledge of the transaction. The technical argument that it is legal for him to appear through a special attorney, is not valid and appreciable in case of Talb-e-Muwathibat which is a pure act of personal nature and which can be described amicably by the party himself. The bona fides are also checked when such plaintiff volunteers as witness and surrenders to subject himself for cross-examination which, in case of 'Talabs' is lengthy as well as intricate. The failure of Mir Qalam, the only decree-holder to appear personally and to depose about 'Talb-eMuwathibat', is a factum that seriously tells upon his credibility and bona fides. This factum was not appreciated by the two Courts below in its true perspective. They have fallen into material irregularity.
6. Consequently the revision petition is accepted, the impugned judgments of both the Courts below are set aside and the preemption suit of Mir Qalam Khan is hereby dismissed with costs".
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of "Mst. Lalan Bibi and others v. Muhammad Khan and others" (2007 SCMR 1193), wherein at page No.1201, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "Plaintiff has made first Talb on 2-9-1994 and second Talb was made on 5-9-1994. Ghulam Hassan was appointed by the plaintiff as his attorney on 12-9-1994. It is an admitted fact that plaintiff late Muhammad Khan did not appear before the trial Court, therefore, making of Talbs in terms of section 13 was not proved and this fact was not considered by all the Courts below in its true perspective. Judgments of all the Courts below are not in consonance with the law laid down by this Court in Mst. Salma Bibi's case 1996 SCMR 1067. The aforesaid proposition of law is also supported by the following judgments-
(i) Salma Bibi's case 1996 CLC 623, (ii) Mst. Wazeeran's case 1996 CLC 682.
The trial Court has decided the case in violation of the dictum laid down by the superior Courts in the foresaid judgments, therefore, trial Court has committed material irregularity. See Kanwal Nain's case PLD 1983 SC 53, Oil and Gas Development Corporation's case PLD 1970 Karachi 332 and Muhammad Hashim's case PLD 1971 SC 793. The First Appellate Court has also committed the same mistake which were not rectified by the learned High Court in the impugned judgment. The conclusions arrived at by all the Courts below that pre-emptor complied with the requirement of Talbs are erroneous, therefore, it was the duty and obligation of the learned High Court to exercise its revisional jurisdiction. See Hakim Muhammad Buta's case PLD 1985 SC 153"
11.Keeping in view all the aforementioned facts, I have come to this conclusion that the respondent/plaintiff has miserably failed to prove that she performed Talbs in accordance with the law, therefore, her suit was wrongly decreed by the learned Civil Judge, Sohawa, District Jhelum vide the impugned judgment and decree dated 20.02.2010 and the appeal filed by the petitioners/defendants has erroneously been dismissed by the learned Additional District Judge, Jhelum vide the impugned judgment and decree dated 30.05.2012.
12.As I have concluded that the respondent/plaintiff failed to prove the performance of Talbs in accordance with the law and her suit has wrongly been decreed which was liable to be dismissed on this sole ground, therefore, there is no need to discuss the findings of the courts below on the remaining issues.
13.In the light of above discussion, this civil revision is accepted, the impugned judgment and decree dated 30.05.2012, passed by the learned Additional District Judge, Jhelum, as well as, the impugned judgment and decree dated 20.02.2010, passed by the learned Civil Judge, Sohawa are hereby, set aside. Resultantly the suit for possession through the right of pre-emption, filed by the respondent/plaintiff stands dismissed.