Unsuccessful plaintif f has brought this petition under Section 115 Code of Civil Procedure, 1908 to seek revision of the concurrent findings returned by the Courts below whereby his suit for possession through pre-emption was dismissed.
2. The relevant facts for the decision of the instant petition are that on 13.4.2010 suit for possession through pre- emption was instituted by the petitioner . Dispute in this case related to land measuring 15-Kanals and 10-Marlas, which stood transferred in the name of the respondent, namely , Abid Hussain vide Mutation No.942 dated 16.12.2009 for a consideration of Rs.400,000/-. Claim of the petitioner was that he had a superior right of pre- emption and had also made the requisite Talbs in accordance with law; and, that actual sale consideration was Rs.170,000/- but the same was ostensibly mentioned as Rs.400,000/-.
3. The respondent-vendee contested the suit and denied the claim made in the plaint. On pleadings issues were framed and evidence was recorded. After appraising evidence the learned Trial Court vide judgment and decree dated 13.11.2014 dismissed the suit. The petitioner thereupon preferred appeal, which met the same fate and was dismissed vide judgment and decree dated 6.12.2017. So, this petition.
4. Impeaching the decrees of the Courts below , the learned counsel for the petitioner stated that the impugned judgments and decrees passed by the learned courts below are against the law, facts and record, therefore, are liable to be set aside; that these two decrees are result of misreading and non-reading of evidence, as well as, the material documents on record, hence the learned courts exercised their jurisdiction illegally and with material irregularities; that both the learned courts below have not followed the law as laid down by the superior courts; and, that the said learned courts have decided the matter in a hasty manner while brushing aside the lawful rights of the petitioner .
5. I have gone through the pleadings of the parties, oral as well as documentary evidence brought on record, and the impugned judgments and decrees of the learned Courts. In view of the pleadings of the parties, as discussed above, the learned trial court had framed as many as 9 issues and the most crucial issue being No. 8 viz, 'Whether the plaintif f has fulfilled requirements of Talbs in accordance with law? OPP'
6. The law governing the above cited issue No.8 is provided in Section 13 of the Punjab Pre-Emption Act, 1991, which reads as under:- 'Section 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 order , namely--
(a) 'T alb-i-Muwathibt';
(b) 'T alb-i-Ishhad'; and
(c) 'T alb-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) 'T alb-i-Ishhad' means demand by establishing evidence.
(III) 'T alb-i-Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make Talb-i- Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under sub-section (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: Provided that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make T alb-i-Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under sub-section (2) and Talb-i- Ishhad under the sub-section (3), he shall make Talb-i-Khusumat in the court of competent jurisdiction to enforce his right of pre-emption.
7. Conjoint reading of sub-sections (1) and (2) of Section 13 of the Punjab Pre-Emption Act, 1991 suggests that first step to structure the right of pre-emption is to make immediate demand in the sitting or meeting (Majlis) in which the pre-emptor has come to know of the sale through any source, declaring his intention to exercise the right of pre-emption. Such demand is called Talb-i-Muwathibat . The element of immediacy is embedded in this demand as otherwise it stands extinguished on a delay of the shortest interval. It is for this reason the Hon'ble Supreme Court of Pakistan in the cases of Mian PIR MUHAMMAD and another v. FAQIR MUHAMMAD through L.Rs and others (PLD 2007 SC 302), Mst. Bashiran Begum v. Nazar Hussain and another (PLD 2008 SC 559), Haq Nawaz v. Muhammad Kabir (2009 SCMR 630), Section Officer, Government of the Punjab, Finance Department and others v. Ghulam Shabbir (2011 SCMR 1545 ), Fazal ur Rehman v. Khurshid Ali and another (2012 SCMR 635), and Muhammad Ismail v. Muhammad Yousaf (2012 SCMR 911) has held that it is mandatory for the pre-emptor to mention in the plaint the place, date, time and name of the witnesses before whom the Talb-i- Muwathibat was made; and, that non-compliance thereof is fatal.
8. This brings me to examine the plaint of the suit, giving rise to the present petition. The petitioner in his plaint maintained that the factum of sale was kept secret; and, that upon getting knowledge of the sale on 16.01.2010 at 10:00 A.M. at his medical store through Haji Ahmad in the presence of Sher Khan declaration to exercise right of pre-emption was made. The petitioner was under burden to prove above assertion through reliable evidence.
The petitioner thus, appeared as his own witness as PW-1 and during cross-examination stated on oath the facts which were contrary to the averments made in the plaint. He stated that he was informed about the sale, as well as, the mutation No. 942 by the officials of the revenue department. He admitted that he came to know about the said sale 4/5 days ago before announcing his intention for exercising the right of pre-emption. He further stated that he took the copy of the mutation to the lawyer and he expressed his intention to exercise his right of pre-emption for the first time before his lawyer. He also stated that he went to his lawyer along with his witnesses. Thereafter, he stated that he expressed his intention before the lawyer and his clerk heard it. He also stated that he had not expressed his intention anywhere else. He further stated that he was not aware about at what time he went to his lawyer's office, however, added that he visited during the office timings. He also admitted that he did not remember as to where the lawyer was sitting when notice was being written or when the intention to exercise his right to pre-emption was expressed. Thereafter, he stated that when this was done, he and his witnesses were present, then he further stated that on 25.01.2010 the witnesses came to him when he was sitting at his shop. At the end of his cross-examination he also admitted that the complete story of pre- emption was written by the clerk on the direction of Sheikh Arif, Advocate and he, as well as, his witnesses were quiet at that time. It is also pertinent to mention here that petitioner did not produce the informer/witness of the said Talb, namely, Haji Ahmad as his witness. Although, during cross-examination he stated that said Haji Ahmad had died but no evidence regarding his death was brought on record by him.
9. If the facts stated in the plaint are compared to the statement made by the petitioner during his cross- examination, then contradiction appears in the date and place where allegedly a declaration to exercise right of pre-emption, was made, which in turn creates doubt in making the first Talb, that is, Talb-i-Muwathibat in accordance with law. Since right of pre-emption is strict in character , the benefit of doubt would go to the vendee and conclusion would be that the petitioner had failed to prove the making of Talb-i-Muwathibat in accordance with the prescribed conditions of law. In this regard reliance may be placed on the case of Mehmood Alam v. Mushtaq Ahmed, etc. (2017 Law Notes 238).
10. Now, I address the second Talb, that is, Talb-i-Ishhad . It is to be noted that in the present case facility of post office was available to the petitioner . He was, therefore, required to confirm his intention to exercise the right of pre- emption by sending a written notice to the vendee-respondent. According to sub-section (3) of Section 13 of the Punjab Pre-emption Act, 1991 this written notice was not only required to be attested by two truthful witnesses but also sent:
(i) within two weeks from the date of making T alb-i-Muwathibat;
(ii) Under registered cover; and
(iii) Acknowledgment due card.
In order to discharge the burden of provin g Talb-i-Ishhad , the petitioner as per settled principle was required to first aver in his plaint not only that notice was sent under registered cover alongwith acknowledgment due request but also to disclose the names of attesting witnesses and thereafter to prove the making of Talb-i-Ishhad through convincing and reliable evidence. In the case in hands the petitioner though in the plaint had stated that notice attested by two truthful witnesses was sent to the respondent through registered post alongwith acknowledgement due card but during the course of evidenc e neither the acknowledgement due card nor the postman, who delivered the notice, was produced before the learned Trial Court. This omission was fatal. In this regard reference to the case of Bashir Ahmad v. Ghulam Rasool (2010 SCJ 643) would be appropriate wherein it was held that it was the duty of the pre-emptor to have produc ed the postman through whom notice was allegedly got served upon the vendee to prove that notice was actually sent to him at the right address and he received it or refused to receive it; and, that in order to establish Talb-i-Ishhad the pre-emptor has to prove that notice was sent to the vendee through registered post acknowledge due card and its acknowledgment receipt was received by the pre-emptor after its service on the vendee. This principle has been reiterated in the case of Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309 ).
11. There is one other aspect of the matter at hand, which is worth consideration. The petitioner had instituted the suit against Abid Hussain son of Abdul Rehman. The documents that have been appended by the petitioner with the instant civil revision depict that Abid Hussain at the time of sale, that is, 16.12 .2009 was 6 or 6 & 1/2 years of age and was a student of Class 2 in the year 2014. A certificate from the office of Principal, Oxford Public High School, Darya Khan (Bhakkar) was also placed on the record as Mark-A notifying his parenthood and his class in which said Abid Hussain was studying. It is also noted that during the evidence of the respondent, it was pointed out that he was a minor and that his father had actually bought land in question but the same had been transferred in Abid Hussain' s name. Neither of the parties nor the learned trial court impleaded his father Abdul Rehman, who throughout had been defending the case on behalf of his son Abid Hussain. It is also noted that he was not sued through his father . This aspect was also not taken into consideration by the learned appellate court where again Abid Hussain was impleaded without his next friend nor a guardian was appointed. The petitioner again has not impleaded the said minor through his father nor did the learned counsel for the petitioner pointed out this aspect of the matter during the course of hearing of the instant petition. Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 have been ignored. However , in view of the above noted facts and circumstances, no prejudice has been caused to the minor . The suit as well as appeal against him were being defended by his real father , who has no interest adverse to him and secondly the concurrent findings of the learned courts below are against the petitioner . Moreover , considering the fact that the provisions of Code of Civil Procedure, 1908 do not relate to the substantive rights of the individuals and these being simply a machinery to achieve an end and that the object and purpose of the above noted Order is to ensure due and proper representation on behalf of the minor , therefore, non-compliance of the said Order ought to be treated as inconsequential in the peculiar facts and circumstances of this case. In this regard reliance is placed on the cases reported as Manager Jammu and Kashmir , State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C. 678) and Adil through Legal Heirs and others v . Ashiq Hussain and others ( 2003 CLC 945 ).
12. The result of the above discussion is that the petitioner had failed to make Talbs in accordance with law and thus not entitled to the decree as prayed for in the plaint. This petition therefore lacks merit and is accordingly dismissed.