1. ' MUHAMMAD AMEER BHATTI, J.--- This revision petition is directed against the concurrent findings of fact recorded by both the learned Courts below vide Judgments and decrees dated 30.10.2006 and 26.10.2009, respectively, whereby the suit and appeal filed by the petitioners were dismissed on account of non-fulfilment of Talbs, hence, this revision petition.
2. 2.The facts relevant for disposal of this revision petition have adequately been elaborated in the impugned judgments; therefore, I need not to detail the factual background of the case.
3. 3.There is no denying of the fact that the notice of Talb-i-Ishhad issued to the vendees- respondents was delivered and received by their father; hence, the learned Courts below besides holding that Talb-i-Muwathibat was not performed in accordance with the provision of Section 13 of the Punjab Pre-emption Act, 1991 maintained that Talb-i-Ishhad had not been performed in with law.
4. ' I would like to deal with the performance of Talb-i-Muwathibat first. On examination of evidence of the parties, it is observed that PW-3, informer admitted about having knowledge of mutation No,1272 entered on 03.11.2001 when the transaction took place but could not be materialized, as the plaintiffs had expressed their interest to purchase it. For this reason, matter of sanction of mutation was postponed and remaining amount was also put on hold. However, on definite refusal on 27.02.2002, the land was purchased through registered sale deed and mutation was got cancelled.
5. Although PW-5 and PW-6 (plaintiffs) denied the knowledge of execution of mutation yet PW1/plaintiff showed his ignorance about incorporation of mutation No,1272 but in contrast to this, PW-3/informer admitted that plaintiffs had the knowledge of incorporation of mutation No,1272.
6. Laying emphasis on the available evidence discussed in the preceding paras the Courts below concluded that petitioners/plaintiffs had the knowledge of sale much before the story of Talb-i- Muwathibat was fabricated and accordingly disbelieved by the learned trial as well as Appellate Courts.
7. 4.Argument of learned counsel for the petitioners that mere admission of PW-3 regarding knowledge of incorporation of sale Mutation No,1272 qua land-in-dispute in favour of the respondents to establish that sale in question was in their knowledge, carried no weight to discard the evidence produced by the petitioners, in a peculiar situation when on the basis of this mutation, sale was not effected and land was subsequently sold through registered sale deed, is devoid of substance. In particular, PW-3 is sole source of information and his utterance/admission about having the knowledge of sale by the plaintiffs cannot be summarily ignored and sufficiently leads to irresistible conclusion that the pre-emptor was amply aware of transaction much before the performance of alleged Talb-i-Muwathibat. ' Another fateful aspect of the case is that informer has not disclosed his source of information, although admitted that he learnt about sale when he was sitting in a hotel but failed to answer this specific question as to who provided him this information. He also admitted that those persons from whom he acquired the knowledge belonged to his village. In this scenario, it is held that Talb- i-Muwathibat was not performed in conformity with law as the story of Talb-i-Muwathibat was concocted whereas the sale as in the knowledge of the petitioner/plaintiff from very outset.
5. It is settled law that if pre-emptor fails to perform the first Talb i,e, Talb-i-Muwathibat which is condition precedent to the second Talb i,e, Talb-i-Ishhad, meaning thereby even if the pre-emptor succeeds in proving the second Talb, his suit could not be decreed. Nevertheless, regarding performance of Talb-i-Ishhad, the contention of the learned counsel for the petitioners is that the notice was correctly addressed and dispatched at the permanent address of the vendees through their father, therefore, it was properly served on their father and this fact has been compellingly established by producing the Postman, thus, the service of notice has been effected as required by law. As such, the findings of the learned Courts below are unsustainable in the eye of law and are liable to be set-aside and decreeing petitioners' suit.
8. On the other hand, learned counsel for the respondents-vendees contends that the notice of Talb- i-lshhad was not served upon the vendees-respondents, therefore, both the learned Courts below have not committed any illegality and irregularity while holding that the petitioners have failed to perform Talb-i-Ishhad in accordance with law.
9. 6.Admittedly, the notice of Talb-i-Ishhad was received by Fazal Hussain, who signed/acknowledged its receipt, which was endorsed by PW-2 in his testimony, who in cross- examination admitted that both the registries were handed over to Fazal Hussain in the Post Office in addition to admitting that Mukhtar Ahmed, one of the vendee, had gone somewhere in connection with his personal affair and was not available in the village. He also deposed that other vendee Ghaffar Ahmed, at the time of delivery of registry, was outside the country, but source of information has not been disclosed by the Postman regarding non-availability of both vendees in the village inasmuch as nothing has been uttered in his testimony as to who informed him about non-availability of the two vendees.
10. The law on the point of service of notice of Talb-i-Ishhad has already been set at rest by apex Court in the case of Khan Afsar v. Afsar Khan and others (2015 SCMR 311), relevant portion whereof reads as under:- "The case of Muhammad Bashir was also followed by two different Benches of this Court, respectively in Bashir Ahmed and Allah Ditta (supra). That since admittedly the said notice was received by Rashid Khan (and not Muhammad Aslam Khan) and the receipt thereof was denied by the vendee notice of Talbi-Ishhad as prescribed by Section 13(3) of the N.W.F.P. Pre-emption Act, 1987 was not served upon the vendee and a necessary component to succeed in a pre-emption suit was not fulfilled. The impugned judgment of the High Court which had dismissed the said suit therefore does not call for any interference and the appeal is dismissed with costs".
11. In this situation, the service of vendees' father, which has categorically been denied by the respondents, cannot be considered a valid service of notice in the eye of law notwithstanding the fact that Postman was produced.
7. Another noteworthy aspect of the case manifested from the examination of notice whereby other postal receipts depict that notice was not only dispatched to the vendees c/o their father but it was also addressed to vendees through their father; meaning thereby that it was addressed and sent to attorney without having the regard to the fact that no Power of Attorney in favour of vendees' father was ever executed, therefore, it is reckoned that no notice of Talb-i-Ishhad was sent to vendees and service of notice on father of vendees does not meet the legal requirement of law as contemplated by Section 13 of the Act. I am fortified by judgment' of this Court reported as Nawab Ali through General Attorney v. Javaid lqbal Nabi and others (PLD 2009 Lahore 49), where it is held that, "As regards the sending of notice of Talb-i-Ishhad is concerned, this demand has not been made from the vendees, rather their mother Mst. Sardaran Bibi, who in law or in fact is not shown to be the person to whom the said notice could be sent. If at the relevant time, the respondents were not in the, country, the notice should have been sent in their names at their permanent address in the country and if their address abroad could be ascertained, it could also be sent there as well, but in any case, the sending of the notice to Mst. Sardaran Bibi does not meet the requirement of law."
12. Hence, it is held that both Talbs, Talb-i-Muwathibat and Talb-i-Ishhad were not validly performed by the preemptors with the result that their right of preemption stood extinguished.
8. For what has been discussed above, it is held that both the learned Courts below have not committed any illegality and irregularity warranting interference by this Court in its revisional jurisdiction, as the judgments of both the learned Courts below squarely fall within the parameters prescribed by the law laid down by apex Court, referred ibid. Resultantly, this revision petition having no merit stands dismissed with no order as to costs.