By filing the instant civil revision, the petitioner has assailed concurrent, judgments and decrees dated 12.04.2007 and 8.10.2007 passed by the learned Courts below, by which the pre-emption suit filed by the present petitioner and appeal stood dismissed respectively.
2. The compendious facts of the pre-emption suit, culminating into this Civil revision and necessary for its fair adjudication, are that Jamshaid Ali-Respondent No, 1 (respondent) purchased the suit property through mutation of sale No, 124 attested on 02.08.1997 for consideration of Rs, 4000/-. The present petitioner filed pre-emption suit on the qualification "Shafi-i-Sharik", "Shafi-i-Khaleet" and "Shaft-i-jar" alleging that on 09.08.1997 at 10.00 a.m. he was informed by Abdul Shakoor-PW-2 regarding the sale transaction, thereupon he immediately made Talb-i-Muwathibat. On 12.08.1997 he got issued notice of Talb-e-Ishhad attested by Riaz Hussain-PW-4 and Muhammad Zafar-PW-5 and the same was sent to the respondent through registered letter A.D. The respondent during the pendency of the suit, vide mutation of. sale No, 138 attested on 25.04.1998 transferred the suit property to the remaining Respondents No, 2 to 8, obviously for that reason, respondent has not appeared in the Court at initial stage and as such he was proceeded against exparte. Rest of the respondents (subsequent purchasers) contested the pre-emption suit.
3. To resolve the controversy in between the parties, the learned Civil Judge framed following issues:--
1. Whether the plaintiff has fulfilled the requisite talbs in accordance-with law? OPP.
2. Whether the plaintiff has right of pre-emption qua the vendee/defendant? OPP.
3. Whether the ostensible sale price of Rs, 40001- was fixed in good faith and actually paid by the defendant as sale price of the suit land at the time of its sale? OPP.
4. If above Issue No, 3 is not proved, in affirmative, then what was the market value of the suit land at the time of its sale? OPP.
5. Whether the defendant is entitled to receive Rs, 2,00,0001-incase of decree as development charges? OPD.
6. Whether the suit is false, baseless, against law and act and defendant is entitled to recover special costs u/S. 35A, CPC? If so, what extent? OPD.,
7. Relief"
4. After recording of evidence of the parties and hearing arguments, vide judgment and decree dated 12.4.2007 the learned Civil Judge, Taunsa Sharif dismissed the pre-emption suit of the petitioner while concluding that the petitioner has failed to make "talbs" in accordance with law.
Thereafter the petitioner filed an appeal before the learned Additional District Judge, Taunsa Sharif which stood dismissed vide impugned judgment are, decree dated 08.10.2007.
5. Feeling dissatisfied with the impugned concurrent judgments and decrees passed by the learned Courts below, the petitioner has filed the instant civil revision/ mainly on the grounds that the same are against facts, law and based on mis-reading and non-reading of evidence.
6. Arguments heard. Record perused.
7. The petitioner as PW-3 has deposed that on 09.08.1997 at 10.00 a.m. he met with Abdul Shakoor/PW-2, who intimated him about sale under pre-emption and he immeadltely made "Talb-e-Muwathibat". On 12.08.1997, he got scribed notice of Talb-e-Tshhad Exh.P-3 attested by Riaz Hussain/PW-4 and Muhammad Zafar/PW-5 and the same was sent to the respondent through registered letter A.D. Abdul Shakoor, PW-2/revenue patwari has supported the version of petitioner regarding making of "Talb-e-Muwathibat". Whereas Riaz Hussain/PW-4 and Muhammad Zafar/PW-5 have deposed that notice of Talb-e-Ishhad Exh.P-3 was got scribed by the petitioner in their presence on 12.08.1997 and both of them attested the same. Rab Nawaz/PW-1, post master proved, receipt of registered letter A.D. Exh.P-2.
8. In its rebuttal, Muhammad Afzal, one of the respondents, as DW-1 deposed that petitioner/pre- emptor has not issued any notice of Talb-e-Ishhad to the original vendee. During the curse of cross-examination, he showed his lack of knowledge that the petitioner on 09.08.1997 on information of Abdul Shakoor, Patwari PW-2 came to know about sale of suit property and he immediately made "Taib-e-Muwathibat". He rejected suggestion that the petitioner has sent notice of Talb-e-Ishhad to the respondent by a registered letter A.D. on 12.08.1997. Ameer Muhammad/DW-2 has also deposed in the same fashion.
9. The careful scrutiny of above noticed evidence leads to an irresistible conclusion that the petitioner has neither produced receipt of "acknowledgment due" nor produced postman, who has served the notice of "Talb-e-Ishhad" upon the vendee/respondent. As such the petitioner has miserably failed to establish that notice of "Talb-e-Ishhad" was served upon the respondent.
Whereas it was mandatory for the petitioner to produce the postman to establish the service of notice of "Talb-e-Ishhad", in compliance with Section 13 of the Punjab Pre-Emption Act, 1991, as interpreted in case "Allah Ditta through L.Rs and others versus Muhammad Anar" (2013 SCMR 866).
In case Muhammad Bashir and others versus Abbas Ali Shah" (2007 SCMR 1105), while interpreting Section 13(1)(B) of Punjab Pre-Emption Act, (IX of 1991) it has been held as under:-- "The requirement of, "sending a notice writing" is followed by a rider i,e, "under registered cover acknowledgment due", which signifies-that the intention of law is not merely a formal notice on the part of 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" was enough, it would make the expression "acknowledgment due" redundant. Service of addressee, as prescribed in law; therefore, is imperative. If acknowledgment card carries on 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."
This view has been followed in "Aqal Zaman and others versus Balqlat .Khan and others" (2016 MLD 245 Peshawar). "Falak Niaz versus Amal, Din and another" (2016 YLR 2047 Peshawar IBannu Bench)) and "Basharat Ali Khan versus Muhammad Akbar" (2017 SCMR 309).
10. Learned counsel for the petitioner has maintained that on 09.12.2006, Jamshaid Ali, respondent has got recorded his (better) statement to the effect that the petitioner/pre-emptor has fulfilled all the "talbs" and he has received notice of Talb-e-Ishhad dispatched by the petitioner and as such from his admission, it is established that the petitioner has made requisite talbs in accordance with law and the learned Courts below were not justified to discard his statement. In the same context, it has been further argued that subsequent transferees/Respondents No, 2 to 8 have purchased the suit property during pendency of the suit and such sale transaction is hit by the principle of "lis pendence". In support of this contention, reliance has been placed on case "Abdul Yameen Khan versus Ashrat Ali Khan and others" (2004 SCMR 1270), "Mst. Fatima Bibi through legal Heirs and others versus Mst. Irshad Begun' and others" (2015 YLR 1352 Lahore) and "Khalil Mehmood versus Najib Khan and 2 others" (2001 MLD 1323 Azad J & K). To my view this statement of vendee is not reliable as on the date of making conceding statement he had lost interest in the suit property due to its sale in favour of remaining respondents. In case "Saleem and another versus Malik Jalaluddin and 7 others" (PLD 1982 SC 457)" while dealing with Section 18 of Evidence Act (I of 1872), (corresponding to Article 31 of Qanun-e-Shahadat Order, 1984), following principle has been laid down: "A plain reading of this provision makes it clear that statement of a person, from whom a party to the suit has derived his interest in the subject-matter of the suit proceedings, are receivable as admissions against the latter, if the statements were made during the continuance of the interest of the former. It is only in regard to such statements, that the party against whom the statement is tendered in evidence, can be said to be in "privity" with the person making a statement. Once the interest of the maker of such statement ceases to exist, the privity comes to an end and no statements thereafter can bind successor-in-interest on any principle. The ground upon which such statements are received as admissions is that the maker of the statement and the person who has derived his interest from him are identified in interest. Thus, it was ,held in Bhagirathi v.
Panait Onkar Nath (1) AIR 1924 Qudh 17, that under Section 18 of the Evidence Act, statements made by persons from whom the parties to the suit have derived their interest in the subject- matter of the suit are admissible as admissions, only when the admissions are of a date prior to the date of transfer. Since in the present case, the so-called admission was made by Respondent No, 1 much after he transferred his interest in favour of Respondent No, 4, clearly this statement cannot be received as an admission binding on the latter." (emphasis ssupplied by me)
Similar view has been taken in case "Qasim Ali versus Khadim Hussain through Legal Representatives and others" (PLD 2005 Lahore 654). As such the contention of learned counsel for the petitioner that due to admission of respondent, the petitioner has succeeded to establish making of "Talbs" is devoid of any force.
11. It is well settled law that concurrent findings of learned Courts below cannot be interfered with in revisional jurisdiction of this Court, when the same are based on proper appreciation of evidence on record. Reliance is placed on "Ghulam Qadir and others versus Sh. Abdul Wadood and others that Development through EACO Bhahkkar and others versus Ali Muhammad" (2012 SCMR 730) and "Shaft Muhammad and others versus Khanzada Gul and others" (2007 SCMR 368).
12.Learned counsel for the petitioner has failed to point out any mis-reading or non-reading of evidence or illegality or material irregularity in the impugned judgments and decrees resulting in injustice to the petitioner and justifying interference by this Court in exercise of its revisional jurisdiction. Consequently, the instant civil revision, being devoid of merits, is dismissed.