This revision petition under Section 115 CPC is directed against judgment and decree dated 27.3.2012 passed by the learned Additional District Judge, Kahror Pakka.
2. Brief facts of the case are that on 9.4.2 004 the Petitioner/Plaintif f filed a suit for possession through exercise of right of pre-emption against the Respondent/Defendant in the Civil Court at Kahror Pakka. He stated that Mst.
Nazeer Bibi was the owner of a piece of land measuring 32-kanals consisting of 640/3676 share of 183 kanals 16 marlas comprised in Khewat No.71 [per Register Haqdaran Zamin for the year 1999-2000], situated in Mauza Musharraf Wahan, Tehsil Kahror Pakka, District Lodhran (the "Property"), which she sold to the Respondent vide Mutation No.714 dated 16.12.2003. According to him, he was a co-owner in the joint Khata and his land shared not only the watercourse with the Property but also had a common boundary . As such, he had superior right to purchase the Property but with the mala fide intent to defeat it the Respondent and Nazeer Bibi had dishonestly mentioned the sale consideration in the aforesaid mutation as Rs.16,00,000/- instead of the Property' s actual market value which was Rs.8,00,000/-. The Petitioner averred that he learnt about the sale in question on 19.1.2004 at 11:00 a.m. through Allah Ditta brother of Ahmed Khan when he was at his Dera with Muhammad Javed Khan and Muhammad Mujtaba. He immediately raised Talb-i-Muwathibat and on the following day, i.e. 20.1.2004, made Talb-i-Ishhad by sending notice to the Respondent through registe red post acknowledgement due which was duly attested by the witnesses. The Petitioner prayed for a decree for possession of the Property . The Respondent contested the suit denying the Petitioner 's right to pre-empt the sale. He alleged that the Petitioner was neither Shafi Sharik nor Shafi Khalit nor Shafi Jar and added that he had not made the Talbs as required by law. He maintained that the transaction was in his knowledge from day one but he did not show any interest therein and was estopped from challenging it. The learned trial court recorded evidence of the parties and thereafter , vide judgment and decree dated 31.1.2009, dismissed the suit holding that the Petitioner had failed to prove Talb-i- Muwathibat and Talb-i-Ishhad which was mandatory . The Petitioner preferred an appeal which was also dismissed by the learned Additional District Judge vide judgment and decree dated 27.3.2012. Hence, this petition.
3. The learned counsel for the Petitioner contends that the learned courts below have grossly misread the evidence which has caused miscarriage of justice. He submits that the Petitioner being Shafi Sharik, Shafi Khalit and Shafi Jar has a superior right to purchase the Property . He made Talb-i-Muwathibat and Talb-i-Ishhad to exercise his right of pre-emption and established this fact at the trial. He prays that the impugned judgments and decrees be set aside and the Petitioner 's suit be decreed.
4. Arguments heard. Record perused.
5. Under Section 6 of the Punjab Pre-emp tion Act, 1991 (the "Act"), right of pre-emp tion vests firstly in Shafi Sharik, secondly in Shafi Khalit and thirdly in Shafi Jar. In the instant case, the Petitioner claimed that he had the right to pre-empt the impugned sale in all these capacities. In paragraph-10 of his written statement the Respondent admitted that he was the co-owner in the joint khata so during the trial he was required to prove that his land shared any watercourse with the Proper ty and had a common boundary with it. However , he did not lead any evidence in this regard. This shortcoming would not non-suit him because he has a right to pre-empt as Shafi- Sharik.
6. In terms of Section 13 of the Act, the performance of Talbs is a condition precedent for enforcement of the right of pre-emption. It enacts:
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-Muwathibat';
(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 suf ficient.
II. 'Talb-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 talb-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 sub-section (3), he shall make talb-i-khusumat in the Court of competent jurisdiction to enforce his right of pre-emption.
7. The Talbs prescribed by Section 13, ibid, are not a formality . There is a plethora of case-law which holds that they are mandatory . In this regard reference may usefully be made to Mir Sahib Khan v. Muhammad Rauf Khan (1992 SCMR 1780 ), Muhammad Ramzan v. Lal Khan (1995 SCMR 1510 ). In a recent case reported as Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309) the Hon'ble Supreme Court of Pakistan explained the policy of law as under: "In the instant case, the requirement of Talbs as prescribed in the Act, 1991 enforces the substantive principles of Islamic Law on the subject of pre-emption. Specified features of the Talbs envisaged by the Act, 1991, as noticed above, have been held in the precedents referred above to be mandatory because of their statutory intent and as requirements of Islamic Law codified by the Act, 1991. The mode and measures for service of notice of Talb-i- Ishhad prescribed in section 13(3) of the Act 1991 extend protection to vendees of immovable property against claims of pre-emption assailing the purchases made by such vendees. In our minds, the various steps prescribed in section 13(3) in the Act, 1991 for the performance of Talbs implement the public policy of the law to exclude delay and vexatious claims for the benefit of defendant/vendees as a class in pre-emption suits. In this sense, the statutorily prescribed mode of service cannot be waived by a party . Consequently , the failure by the petitioner/vendee to highlight an obvious deficiency in the performance of Talb-i-Ishhad by the respondent pre- emptor does not debar the former from pointing out the same at any stage of the proceedings to the Court. This is because the said defect strikes the maintainability of the respondent' s pre-emption suit."
8. In view of the foregoing, the Petitioner was obligated to prove that he made the requisite Talbs in accordance with law .
9. At the very outset, it is observed that the impugned sale was made through Mutation No.714 (Exh.P-7). It's perusal shows that it was attested by the Revenue Officer in village gathering. Presumption of correctness is attached to official record. The Petitioner did not produce any evidence to rebut the same. He did not even allege that the said mutation was not attested in public gathering.
10. The Petitioner 's case is that he learnt about the impugned sale on 19.1.2004 at 11:00 a.m. through Allah Ditta son of Ahmed Khan when he was at his Dera with Muhammad Javed Khan and Muhammad Mujtaba. On the other hand, the Respondent' s plea is that the transaction was in his knowledge from day one and he is estopped from challenging it. The Petitioner himself testified as (PW-1) and produced Muhammad Javed Khan (PW-2) and Allah Ditta son of Ahmed Khan (PW-3) in his support. These witnesses were, however , discrepant. The learned Courts below have recorded a concurrent finding that they are not reliable and I have no reason to dif fer with them.
11. During the trial the Respondent appeared as DW-1 and deposed that the transa ction took place in Nazeer Bibi's house and the Petitioner was present there along with some of his friends. He further stated that the mutation was drawn a day later whereupon Nazeer Bibi delivered possession of the property to him. He immediately levelled the land and before the Petitioner instituted the suit he raised a boundary wall and even built a room for his living. The Respondent examined Allah Ditta son of Allah Wassaya (DW-2) and Muhammad Ramzan (DW-3) in his support who fully corroborated him. The Petitio ner half-heartedly cross-examined them but could not impeach their credibility .
12. In view of the foregoing, I am inclined to hold that the Petitioner could not establish Talb-i-Muwathibat which is foundational for exercise of right of pre-emption.
13. Next I turn to Talb-i-Ishhad. Section 13(3) of the Act perspicuously states that it shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgement due. The only situation in which the Petitioner does not require the sending of notice by registered cover acknowledgement due is when the post-of fice facility is not available to a pre-emptor .
14. Exh.P-1 is the Petitioner 's alleged notice of Talb-i-Ishhad and Exh.P-2 is the postal receipt. The Petitioner 's case is that on 20.1.2004 he went to his counsel along with the PWs, he dictated the notice to his clerk who got it signed and then dispatched the same to the Respondent through registered post acknowledgment due. The Respondent denies its receipt. Perusal of the notice Exh.P-1 reveals that it is undated. Further , the Petitioner neither examined the advocate nor his clerk at the trial which was imperative. Hence, he missed the first step required to prove Talb-i-Ishhad. In Muhammad Rafique v. Muhammad Shafique and others (2013 YLR 145) this Court held: "The clerk who had written notice of Talb-i-Ishhad was not produced as witness in this case. Therefore, the pre- emptor has not successfully proved Talbs in accordance with law ."
15. Law mandates that the notice of Talb-i-Ishhad should be sent through registered post acknowledgement due. In Muhammad Bashir and others v. Abba s Ali Shah (2007 SCMR 1105) it was argued that when a notice is so dispatched it gives rise to the presumption of service under Article 129 of the Qanun-e-Shahadat, 1984, read with Section 27 of the General Clauses Act, 1897. The Apex Court observed: "11. The requirement of, 'sending a notice in writing' is followed by a rider i.e. 'under registered cover acknowledgement due'. This signifies that the intention of law is not merely a formal notice on the part of the pre- emptor conveying his intention to pre-emp t but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere 'sending of notice' is enough would make the expression 'acknowledgement due' redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of 'refusa l' of '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 of fered to a person but not accepted by it.
"12. While there is no cavil with the proposition that the terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgement due is received back with the endorsement of 'refused' by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement."
The above view was reiterated in Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762), and Allah Ditta through L.Rs. and others v . Muhammad Anar ( 2013 SCMR 866 ).
16. In the instant case, as already discu ssed, the Respondent denied receipt of the notice. The Petitioner was, therefore, obligated to produce the acknowledgment due card and the postman who delivered him the notice but he did not do. In Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309), the Hon'ble Supreme Court held that such a failing was fatal for the pre-emptor 's case.
17. Perusal of the record shows that during the proceedings before the learned Appellate Court when the Petitioner realized that there was no affirmative evidence to prove service of notice of Talb-i- Ishhad, he filed two applications for additional evidence. In one of them he prayed for summoning the postman (Irfan) and permission to produce the original acknowledgement due card and in the second he requested that Mazhar Hussain, the clerk who allegedly scribed the notice of Talb-i-Ishhad, be called to the witness-box. The learned Additional District Judge vide two separate orders dated 18.10.2010 dismissed both these applications holding that the Petitioner could not be permitted to fill in the lacunae. No exception can be taken to these orders.
18. It is by now well settled that while exercising revisional jurisdictional under Section 115 CPC this Court cannot interfere in the concurrent findings of the courts below unless they are erroneous and have occasioned miscarriage of justice. In Haji Muhammad Saleem v . Khuda Bakhsh ( PLD 2003 SC 315 ) the Hon'ble Supreme Court held: "Learned courts below have rightly concl uded that the Petitioner has failed to prove Talb-i-Muwathibat and Talb-i- Ishhad. The learned counsel has not been able to point out any perversity in their judgments and decrees which may call for interference by this Court".
19. In view of what has been discussed above, there is no merit in this petition. It is, therefore, dismissed in limine.