Ch. Muhammad Masood Jahangir, J:- The precise facts of the case emerging from the pleadings of parties are that Sajjad Ahmad and others, title holders of land measuring 08-Kanals 07 Marlas falling in Khewat No.73, sold it out to the appellant vide oral sale mutation No.2005 of 4th July, 2007, which was pirated through institution of a suit for pre- emption by the respondent/pre-emptor claiming her superior right being Shafi Shareek, Shafi Khaleet, Shafi Jar as well as due performance of requisite demands, averring therein that she accompanied by Malik Ghulam Farid (PW8) and Riaz Hussain (PW9) was available in her house on 21.10.2007 at 10.00 a.m. where, Ghulam Rasool (PW5) appeared and passed on information about the sale of suit property, the respondent in the said gathering spontaneously pronounced her intention to pre-empt it. No doubt, it was pleaded that Notice Talb-i-Ishhad through registered post was consigned to the appellant, but the date of its execution, dispatch as well as names of the marginal witnesses, who attested it were not disclosed. It was also not specified that the Post containing Notice Talb-i- Ishhad was acted upon the vendee or it being unserved was received back.
The appellant after his due appearance submitted written statement specifically denying pre-emptive right of respondent as well as performance of requisite Talbs by her. The learned Trial Court after settlement of issues recorded evidence of parties and as a result of its appreciation decreed the suit vide judgment of 31st May, 2012, which was also congealed by the Appellate Court on 11th July, 2012 and now bootless appellant has approached this Court to assail their said concurrent judgments through the Appeal in hand.
2. M/s. Abdul Rasheed Bodla and Sabir Ali Cheema, Advocates learned counsel for appellant emphasized that the exact time as referred in plaint about fulfillment of first demand could not be proved and difference in this regard between the contents of plaint as well as disclosure made by PWs in the witness-box was a major contradiction, but both the learned Courts below erred in law to ignore it. They further added that non-mentioning of date and names of witnesses to divulge that when and by whom the Notice Talb-i-Ishhad was scribed, attested as well as dispatched was a vital setback, but it was overlooked as well. They also argued that it was not pleaded in the plaint that Notice was delivered to the vendee, as such the evidence examined to prove a fact not narrated in plaint was to be ignored as per principle of secundum allegata et probata.
The learned counsel for the appellant while referring documents tendered on behalf of the pre-emptor pleaded that it was sine qua non on behalf of the latter to establish her superior pre-emptive right at three crucial stages, but she could not maintain the same, whereas both the learned Courts below failed to appreciate Exh.P 4, 6, 7 and 8 in its true perspective, as such their findings being illegal, erroneous and tainted with misreading and non-reading of evidence are not sustainable in the eye of law.
3. In contra, M/s. Tahir Mehmood and Malik Mohammad Latif Khokhar, Advocates, learned counsel for respondent submitted that concurrent findings of fact arrived at by learned Courts below being result of well appreciation of the evidence of parties as per its gist and substance cannot be interfered with by this Court while invoking jurisdiction vested in it under section 100 of the Code, 1908. It was further argued by them that their counterpart could only point out minor discrepancies in the statements of PWs, which were recorded after a considerable delay and while dispensing with justice, these were rightly ignored by the Courts below. It was also stressed in the interest of pre- emptor by her counsel that not only quantitative rather qualitative evidence was examined to prove superior right as well as performance of due demands and learned Courts below were perfect to appreciate it in returning affirmative finding on the pivotal issues struck in this regard.
4. Arguments heard. Record scanned with able assistance of learned counsel for parties.
5. The crux of the case detailed by the pre-emptor in para-3(iii) of the plaint being significant to comprehend is reproduced below:- {{URDU TEXT}}
6. In the light of above referred part of pleadings, the learned Trial Court rightly formulated issues No.2 and 3 among others and only the formers being relevant are detailed as under:
2. Whether the plaintiff has superior right of pre emption qua the defendant? OPP
3. Whether the plaintiff has fulfilled the requirements of Talabs as required under the law of pre emption? OPP
7. Dealing with issue No.3, it will be useful to make a reference to Section 13 of the Punjab Pre-emption Act, 1991 in extenso:-
13. Demand of pre-emption. (1) The right of pre emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders, namely:-
(a) 'Talb-i-Muwathibat';
(b) 'Talb-i-Ishhad'; and
(c) 'Talb-i-Khusumat'. Explanation I. 'Talb-i-Muwathibat' 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.
Note. Any words indicative of intention to exercise the right of pre-emption are sufficient.
II. 'Talb-i-Ishhad' means demand by establishing evidence.
III. 'Talb-i-Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talb i- Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), 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 acknowledgement due, to the vendee, confirming his intention to exercise the right of pre emption: As we all are aware of the fact that a Full Bench of the Supreme Court of Pakistan comprising five Hon'ble Judges in the case cited as Mian Pir Muhammad and another Us. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302) after plausibly discussing all the authorities and references has already made it incumbent upon the pre-emptor to specifically mention the time, date and place of making Talb-i-Muwathibat in the plaint, so that calculation of fixed period for the performance of next Talb can be exactly made and possibility of concoction as well as improvement can be eschewed. It is requirement of law that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed, which should not be dubbed as mere technicality, but at times it acquires such dimension that it becomes more important than the superior right because it essentially is a sine qua non of the right of the pre emption. Talb-i- Muwathibat is termed as immediate demand and must be performed as early as possible on receiving the information about the sale and its immediate performance is, in fact, its beauty and if such fact is not proved, then definitely it can safely be held that demand was not performed in its true spirit.
In the present case, as per contents of plaint referred hereinabove, the moment transaction was disclosed by the informer, Ghulam Rasool, pre-emptor vocally announced her intention at 10.00 a.m. before Ghulam Farid and Riaz Hussain. No doubt, in his statement the informer (PW5) sticked to the timing as specified above, whereas Ghulam Farid (PW8) although in first part of his statement-in-chief maintained that Majlis was constituted at 10.00 a.m., but in second part he stated that after loss of 10 to 15 minutes, the transaction was disclosed by the informer (PW5), forcing pre-emptor to pronounce Talb-i-Muwathibat. He in his cross-examination further delineated in the following words:- {{URDU TEXT}} The other partaker, Riaz Hussain (PW9) further doubted the performance of first demand by making statement that after another 30 minutes to 10.00 a.m. it was pronounced and the exact words, he uttered in his statement-in- chief, are:- {{URDU TEXT}} On the same motif pre-emptor (PW10) also exposed a difference of 15/20 minutes about fulfillment of first demand than pleaded in the plaint. When in Mian Pir Muhammad's case, the mentioning of timing besides other detail was made imperative for the pre-emptor, then of course it was also obligatory for him to veraciously prove it. The due performance of Talb-i-Muwathibat is the foundation of the case of the pre-emptor and once his evidence becomes shaky or his rival succeeds to make a dent therein, the superstructure has to collapse. The timing being one of the basic/vital ingredients to prove the fact of constitution of Majlis and prompt performance of first demand was not maintained as pleaded in this case, but lower fora committed material irregularity and illegality to conclude that Talb-i -Muwathibat was duly performed.
8. The other setback of the case was that pre-emptor failed to mention the date of execution and dispatch of the Notice Talb-i Ishhad in the contents of plaint. No doubt, copy of the same was brought on record, but as per principle settled by the apex Court in cases reported Mian Pir Muhammad and another Vs. Faqir Muhammad through L.Rs. and others (PLD 2007 SC 302), Mst. Saleem Akhtar Vs. Ch. Shauk Ahmed (2009 SCMR 673) and Muhammad Ismail Vs. Muhammad Yousaf (2012 SCMR 911), it was obligatory upon the pre-emptor to disclose the same in the plaint, whereas the Courts below again failed to take Notice of the ratio of the afore-noted judgments. Moreover, no doubt, Ghulam Farid and Riaz Hussain, the attesting witnesses of Notice Talb-i Ishhad, were examined as PWs 8 and 9, but out of them, the former during cross examination (at page 22) in unequivocal terms stated as under:- {{URDU TEXT}} Although the other attesting witness, PW9 in his statement-in-chief stated that Notice was scribed and attested on 22.10.2007, but during the test of cross-examination which is a tool to elucidate truth, he fairly deposed that:- {{URDU TEXT}} Whereas, PW9 was purported participant of the gathering in which allegedly one day prior first demand was made.
This all proved that the PWs were tutees, who exposed only that detail, which was learnt to them, but in the cross test they failed to keep up their tuition.
There is much substance in the argument of learned counsel for the appellants that pre-emptor failed to plead that Notice Talb-i-Ishhad was acted upon the vendee, as such the evidence so adduced to prove this fact by the pre- emptor could not be considered. The scrutiny of record unfolds that mutation under pre-emption was sanctioned on 04.07.2007, first talb on 21.07.2007 and the next one was performed on the following day. Whereas according to Booking Receipt (Exh:P1), the Notice was booked on 22.07.2007 and perusal of A.D. Card (Exh:P2) as well as statement of Postmen (PW3 and 4), shows that Exh.P1 was delivered to the vendee on 30.07.2007 and Exh:P2 might have been received back to addressor/pre-emptor within next two three days, but suit was instituted by the latter after about three months of the alleged delivery on 30.10.2007. In such situation there was no deterrent to plead this fact, but it was held back for the reasons best known to the pre-emptor and as per principle secundum allegata et probata any evidence led to prove a fact, which was omitted to be pleaded, had to be ignored. See Muhammad Wali Khan & another vs. Gul Sarwar Khan & another (PLD 2010 SC 965) and Haider Ali Bhimji v. Vith Additional District Judge, Karachi (South) & another (2012 SCMR 254). So this lacuna was also fatal for the pre-emptor. In view of above discussion, the respondent/pre-emptor failed to prove fulfillment of requisite demands as per requirement of law and the principles settled by the superior Courts, but lower fora decided it otherwise and their findings being illegal and result of misreading and non-reading of evidence cannot be sustained, hence their decision on issue No.3 is reversed and answered against the pre-emptor.
9. Adverting to issue No.2, both learned counsel for the contesting parties are in agreement on the legal phrase that in order to succeed in a suit for pre-emption, the pre-emptor has to show that he has superior right of pre-emption qua the vendee(s) at three stages; firstly on the day of sale, secondly, when the suit is to be instituted and lastly the date when it is finally culminated. In this regard, reference may be made to Baldeo Misir Vs. Ramlagan Shukul (AIR 1924 Alahabad 82), Rai Tulley Khan Vs. Ahmed Hassan Khan and others (1981 SCMR 1075), Muhammad Khan and others Vs. Muzaffar (PLD 1983 SC 181) and Hasil and another Vs. Karam Hussain Shah and others (1995 SCMR 1385). Needless to state that well-founded rule laid down by the apex Court has also been recognized by introducing Section 17 in the Punjab Pre-emption Act, 1991.
In this case, the mutation (Exh.P4) under pre-emption was sanctioned on 04.07.2007 with regard to land forming share of Khewat No.73. To prove that pre-emptor was also Shafi Shareek, along with Exh.P4, copy of Jamabandi for the year 2000-01 was tendered as Exh.P6 and its study exposed that pre-emptor was not recorded as sharers of impugned Khewat, rather her father, Ghulaman was mentioned in the column of owners. So this document was of no significance for the pre-emptor to prove that she was a co-sharer. Moreover, Exh:P6 pertained to an earlier era, which otherwise was not relevant. The other two copies of Register Haqdaran Zameen (Exh:P7 and 8) for the year 2004-05 and 2008-09 respectively although reflected pre-emptor being co-owner but not of the disputed Khewat No.73, rather it pertained to Khewat No.74/73 and 74/74. No other document was exhibited to prove that pre emptor was Shafi Shareek, whereas all the documents available on her part were insufficient to prove that at any of the three stages referred hereinabove the pre-emptor/respondent was sharer in the joint holding wherefrom part of it was mutated to the vendee/appellant. Furthermore, there is nothing in black and white on the record to prove that property of pre- emptor was adjacent to the subject land having common passage and source of irrigation. In this regard, it was imperative upon the pre-emptor to bring on record copy of Aks Shajrah besides examination of its maker and the copy of Warabani to prove that she was Shafi Jar as well as Shafi Khaleet, but withholding of such evidence has forced this Court to draw adverse inference against her under Article 129 illustration (g) of Qanun-e-Shahadat Order, 1984, as such, the findings of the Courts below on issue No.2 are also not sustainable, which too are reversed and said issue is answered against the respondent.
10. Now diverting towards the contention of learned counsel for the respondent that this Court cannot set aside concurrent judgments of the lower Courts in exercise of the powers vested under Section 100 of the Code, 1908. No doubt, in Second Appeal ordinarily this Court is reluctant in disturbing the unanimous decisions, but it is not a rule of thumb and this Court cannot close its eyes where Courts below misinterpreted the available material in its true perspective or overlooked to comprehend it. The manifest injustice cannot be permitted to perpetrate simply for the reason that in Second Appeal reappraisal of evidence is not permissible by this Court even if ended in wrong conclusion or contrary to law. In forming this view, I have to my credit cases titled Muhammad Aslam Vs. Mst. Ferozi and others (PLD 2001 SC 213), Khushi Muhammad Vs. Liaquat Ali represented by Muhammad Irshad and others (PLD 2002 SC 581), Iftikhar through legal heirs and others Vs. Capt. Khadim Hussain through legal heirs and others (PLD 2002 SC 607) and Muhammad Khan Vs. Mst. Rasul Bibi (PLD 2003 SC 676).
In the latter case, the apex Court held:- Ordinarily concurrent findings recorded by the Courts below could not be interfered with by the High Courts while exercising jurisdiction in the Second Appeal, howsoever erroneous the findings may be, unless such findings had been arrived at by the Courts below either by ignoring a piece of evidence on record or through perverse appreciation of evidence. High Court, in the present case, was justified in interfering with concurrent findings, after noticing that the judgments of the Courts below suffer from acute miscarriage of evidence and exclusive of material available on the record, resulting in gross miscarriage of justice.
This view has again been affirmed by the same Court in Muhammad Yousaf Baig Vs. Rehmat Ali (2009 SCMR 642).
11. The epitome of the above discussion is that both the Courts below failed to appreciate evidenced in its true perspective as well as applying correct law on the subject and it is a fit case to be interfered with by this Court while invoking jurisdiction vested u/s 100 of the Code, 1908. Hence this Appeal is allowed, judgments of the two Courts below are hereby set aside and suit of the pre-emptor is dismissed with no order as to costs.