RASAAL HASAN SYED, J.---Judgments and decrees dated 12.6.2010 and 07.9.2013 of the learned courts below have been called into question through the instant revision petition whereby suit for pre-emption filed by the petitioner was dismissed and appeal there against was turned down.
2. To pre-empt the sale of land by mutation No.1754 dated 18.5.2006 in favour of respondents, petitioner instituted a suit claiming to be Shafi-e-Sharik, Shafi-e-Khalit and Shaf-e-Jar . It was claimed that news of sale was received at 9:00 a.m. on 05.8.2006 through one Shah Muhammad son of Karam Din and that requisite Talbs were made. Suit was resisted by the respondents on legal as well as factual planes. Assertions made by the petitioner were controverted. Stance in rebuttal was that the petitioner had knowledge of sale from day one. The suit was dismissed vide judgment dated 12.6.2010 by the learned Civil Judge, with the findings that the petitioner had been unable to prove Talb-e-Ishhad nor could he establish his superior right of pre-emption. In appeal, the learned Addl.
District Judge vide judgment dated 07.9.2013, reversed the findings on issue No.2 regarding superior right of pre- emption. The judgment of the learned court below on the issue of Talbs and other issues was, however , affirmed.
3. It was inter alia argued by the learned counsel that findin gs of the learned courts below on the issue of Talb-e- Ishhad and service of notice were result of misreading and non-reading of evidence and that the learned appellate court had failed to apply judicial mind to the points raised in appeal and that the impugned judgments were contrary to law laid down by the superior courts.
4. With a view to consider the point raised, evidence as also the documents available on the file have been carefully scrutinized, which reveal that the petitioner claimed superior right of pre-emption being Shafi-e-Sharik , Shafi-e-Khalit and Shaf-e-Jar and asserted that he acquired knowledge of sale on 05.8.2006 through Shah Muhammad son of Karam . Din and that on acquiring knowledge he, in the presence of witnesses, announced right of pre-emption as a co-sharer , owner A of land in contiguity and Sharik-e-Klial. Paragraph 3 of the plaint reveals that the petitioner did not mention the names of witnesses allegedly present at the time of acquisition of knowledge or at the time of making of alleged Talb-e-Muwathibat . Rather it was asserted that on acquiring knowledge he had claimed "Shufa " in the presence of witnesses without disclosing their names. It was asserted in the plaint that after knowledge, the petitioner inspected the revenue record on the same date i.e. 05.8.2006, obtained certified copy of mutation, contacted his lawyer on 11.8.2006 and that in the presence of Shah Muhammad son of Karam Din and Bahadar son of Veryam, got the notice drawn/completed; which was allegedly posted and, in this way, it was claimed that Talb-e-Ishhad was made.
5. From paragraph 3 of the plaint, it is manifest that time of alleged information of sale or of first declaration of pre- emption or the names of witnesses at the time of acquisition of information of sale, were not mentioned; and it was simply stated that in the presence of witnesses the right of pre-emption was pronounced whereafter on the same day the Revenue functionaries were visited, inspection of revenue record was made and copy of mutation was applied for and received and, thereafter , counsel was approached on 11.8.2006, when in the presence of witnesses, whose names were given, the notice of Talb-e-Ishhad was got completed, and dispatched. In evidence the petitioner stated as P.W.1 that Shah Muhammad, alleged informer , acquired knowledge of sale through one ,Ghulam Mohy-ud-Din and that in the presence of Bahadar Ali and Shah Muhammad he had allegedly announced his right of pre-emption; thereafter he went to Patwari for copy of mutation who was not available and that Patwari met him on 07.8.2006, copy of mutation was received and, on 11.8.2006, the petitioner allegedly went to his counsel, provided the details and got the notice prepared for Talb-e-Ishhad . As noted supra the petitioner did not incorporate the names of the witnesses in paragraph 3 of the plaint, in whose presence allegedly knowledge was acquired and Talb-e-Muwathibat made and he, in fact, disclosed their names in the latter part of the para while referring to Talb-e-Ishhad . In his examination-in-chief, the petitioner claimed to have announced his right of pre- emption in the presence of Bahadar and Shah Muhammad on acquiring information of sale but he did not claim that he had made Talb-e-Ishhad in the presence of those witnesses nor mentioned their names at the time when he claimed to have approached the counsel for preparation of notice and for posting and dispatch. Instead he claimed that on 11.8.2006 he went to his counsel, Mehr Zafar Iqbal, Advocate, told him the details and got the notice prepared which was drafted by one Niaz Hussain and was allegedly posted whereafter the suit was instituted on 11.9.2006. In his cross-examination, he expressed ignorance and lack of knowledg e as to the date of the mutation; he was ignorant of the Khewat number of the property , he claimed to have filed a suit on 11.8.2006 though in his examination-in-chief he had deposed that the suit was filed on 11.9.2006 on being further cross-examined he expressed lack of knowledge about the meaning of "Talb" in pre-emption suit. The other witnesses, Shah Muhammad, alleged informer appeared as P.W.2. He claimed in his examination-in-chief that on 05.8.2006 Ghulam Mohy-ud-Din told him about the sale of his property and that he approached the petitioner/plaintif f at 9:00 a.m., informed about the sale, when he allegedly announced his right of pre-emptio n. In his cross-examination he expressed his lack of knowledge about the residence of. respondents Jaffar, Younis and Ayub. He also expressed ignorance and lack of knowledge as to the fact that respondents had constructed houses on the said land and were living therein and also expressed lack of knowledge about the houses which were on the Eastern, Western, Northern and Southern side of the respondents' houses or the persons who owned them. He admitted that petitioner's house did not exist on either side of the respondents' houses. He expressed his ignorance about Khewat number or Khatoni number or the number of square of the land in question. On being further cross- examined in respect of the Talbs, witnesses claimed that Ghulam Mony-ud-Din had told him about the sale at 8:00 a.m. at his house. The distance between the house of Muhammad Ali, petitioner/plaintif f, and his own house was three acres, which could be covered in five minutes and that he reached petitio ner's place at 8:00 a.m. where without waste of any time he allegedly informed about the sale. It is evident that claim of the petitioner in the plaint and his own deposition as also the statem ent of Shah Muhammad P.W.2 in cross-examination are discrepant as to the time when he allegedly reached the house of petitioner and allegedly broke him the news of sale. Obviously being an important witness from point of view of the petitioner , his testimony did not corroborate the statement of the petitioner as to the time of alleged knowledge of sale or first declaration of right of pre-emption. Bahadar Ali appeared as P.W.3 who in his cross-examination was unable to disclose the Khatoni number , Khasra number and Square number of the land and further expressed his lack of knowledge as to when the mutation was attested and what was the area of different mutations. Curiously , he claimed that notice of Talb-e-Ishhad was given on 11.8.2006 and that on the same day the suit was filed which statement was actually incorrect as the suit was filed on 12.9.2008, one month after the date of alleged notice.
6. Considering statement of petitioner , his witnesses and informer Shah Muhammad, it is manifest that there are serious discrepancies, in so far as P.W.2 Shah Muhammad claimed in cross-examination that he got the knowledge at 8:00 a.m. and reached the place of petitioner at 8:30 a.m. and without wasting any time claims to have disclosed the information of sale while the petitioner claims that Shah Muhammad came at 8:00 a.m., the acquisition of knowledge was claimed at 9:00 a.m. and that instantaneously Talb-e-Muwathibat was made. This being so, the petitioner's stance was not corroborated in cross-examination by P.W.2, the allege d informer . The other factor that was not noticed by the courts below was that the petitioner in paragraph 3 of the plaint, while mentioning the date and time of knowledge of the sale and of making announcement of sale, although claimed that it was made in the presence of witnesses but did not disclose the names of witnesses and disclosure of names was made only in later part of the plaint at the time of visit to the lawyer on 1 1.8.2006.
7. Another aspect that bore considerable significance is that P.W.2, Shah Muhammad, the alleged informer did not claim any direct knowledge of sale nor asserted himself to be present at the time of transaction nor being witness to the transaction but claimed that at 8:00 a.m. in the morning he came to know of the sale from Ghulam Mohy-ud- Din. The question arises as to why Ghulam Mohy-ud-Din informed P.W.2 about the sale and as to what was the interest of Shah Muhammad in acquiring such information or having any obligation to immediately communicate it to the petitioner when he was neither involved in the transaction by either party nor claimed to be interested in the sale/purchase of the property . In this backdrop to corroborate his statement, it was imperative for the petitioner to have produced Ghulam Mohy-ud-Din as a witness as it was he who could confirm if he had ever passed information of sale to Shah Muhammad. The non-production of Ghulam Mohy-ud-Din was fatal and spurred adverse inference as to the claim of Shah Muhammad about the alleged acquisition of knowledge of sale.
Particularly , when he himself was not a witness to the sale nor did he claim to be present at the time of transaction.
The statement of P.W.2 could not be accepted as gospel truth blindly unless he could prove to the satisfaction of the court that there were reasonable grounds to believe the circumstances in which he could have acquired the knowledge of sale or passed it on to the petitioner . Due to non-production of mate rial evidence of Ghulam Mohy- ud-Din, the superstructure fell aground as, the statement of P.W.2 being hearsay could not be possibly banked upon. In "Ali Bahadur v. Muhammad Ishaq" (2013 YLR 2555 ), it was observed to the effect that where the alleged informer claimed that he was told about the sale by the Patwari, the best witness would be the Patwari himself whose evidence, if withheld, stimulated adverse inference under Article 129 (g) of the Qanun-e-Shahadat Order , 1984. In the instant case, P.W. 2, also claimed that the factum of sale was disclosed to him by Ghulam Mohy-ud-Din who was, therefore, the most material witness to confirm the statement of P.W.2. No explanation whatsoever forthcame on the record to explain his non-production. Integrated reading and consideration of the facts noted supra makes it plain that Talb-e-Muwathibat was not proved.
8. Under section 13 of the Punjab Pre-emption Act, 1991, the pre-emptor with view to succeed in the suit for pre- emption is required to prove Talb-e-Muwathibat i.e. jumping demand by truthful and credible evidence which does not have any discrepancies. Proof of Talb-e-Muwathibat is an indispensable prerequisite along with other two Talbs i.e. Talb-e-Ishhad and Talb-e-Khasumat . In "Haji Muhammad Saleem v. Khuda Bakhsh " (PLD 2003 SC 315), the honourable Supreme Court observed as under:
12. Moreover , the question of Talb-i-Muwathibat is not a mere technicality vis-a-vis the superior right of pre- emption. The law as well as the fact is that the very right of pre-emption is not activated unless Talb-i-Muwathibat is performed. It should not be dubbed as mere technicality at time, it acqgires such dimension that it becomes more important than the superior right becaus e it essentially is a sine qua non of the right of pre-emption. The latter might exist but is useless unless the former is performed. Had Talb-i-Muwathibat been a mere technicality , this Court in Said Kamal Shah's case PLD 1986 SC 360 would never have gone to the extent of saying that Talb-i- Muwathibat was so important that it had to be asserted and exercised despite the fact that the then prevailing laws of pre-emption never contained any provisions qua Talb-i-Mutathibat or Talb-i-Ishhad. It was on the basis of such verdict from this Court that tens of thousands of pre-emptors in the country were non-suited because of non- assertion and performance of Talb-i-Muwathibat though not required by the then prevailing pre-emption laws in the country . What we want to emphasise is that Talb-i-Muwathibat should not be taken lightly and should not be considered as a mere technicality . Technicalities are simple procedural matters and never have operated to activate certain material rights, as it happens in the case of right of pre-emption.
Considering the rule laid down in the above case and also the circumstances noted hereinabove, it is discernable that the statements of witnesses as well as that of the petitioner were materially discrepant, crucial evidence was withheld without any plausible explanation, testimony of the alleged informer was not proved to be credible or confidence inspiring and the entire narrative built up in the plaint as also in the evidence appears to be nothing but concoction. In view thereof it is observed that petitioner in this case has failed to prove Talb-e-Muwathibat .
9. As regards the second Talb i.e. Talb-e-Ishhad , the respondents denied issuance or service of notice of Talb-e- Ishhad in the written statement and also his statement on oath; in result, the presum ption as to the service of notice in terms of Article 129 of the Qanun-e-Shahadat Order , 1984 stood rebutted and it was for the petitioner/pre-emptor to prove service of notice by producing the postman. Such course was not followed and, therefore, petitioner was correctly deemed to have failed to prove the service of Talb-e-Ishhad. Reference can be made to the case of "Muhammad Bashir and others v. Abbas Ali Shah" (2007 SCMR 1105) wherein the honourable Supreme Court ruled as under:
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 empt 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 "acknowledgment due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgment card carries an 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".
Reference can also be made to the rule in "Allah Ditta through L.Rs and others v. Muhammad Anwar" (2013 SCMR 866) wherein the honourable Supreme Court observed to the effect that the onus to prove Talb-e-Ishhad was on the pre-emptor and if the vendee denies the factum in the written statemen t about the receipt of notice then notwithstanding the subsequent admission by the attorney it would be obligatory upon the pre-emptor to have proved the sending of notice by leading of affirmative evidence which undoubte dly requires the production and examination of the Postman. In "Khan Afsar v. Afsar Khan and others " (2015 SC MR 311). The honourable Supreme Court ruled to the effect that mere sending of notice would not suffice to constitute Talb-e-Ishhad and that the vendee must be apprised about the intention of the pre-emptor , as such, a notice ought to have been served upon the vendee and that the general law as contained in The General Clauses Act, 1897 would not be applicable.
It was observed that if the receipt of notice was denied by the vendee, the pre-emptor was under obligation to prove that notice of Talb-e-Ishhad as prescribed in section 13(3) of the Punjab Pre-emption Act, 1991 was served upon the vendee which if not done, the necessary component to succeed in a pre-emption suit, will not be fulfilled.
Reference can also be made in case of "Mir Muhammad Khan and 2 others v. Haider and others " (PLD 2020 SC 233) wherein it was ruled by the august Court to the effect that section 13(3) ibid. clearly sets out that the notice of Talbe-Ishhad must be served on the vendor through registered post with Acknowledge Due and where in the written statement respondent denies the notice, it falls upon the pre-emptor to prove that notice was delivered and by failing to prove the same by not producing the postman who allegedly delivere d the notice, the pre-emptor will be deemed to have failed to establish the sending or receipt of notice for performance of Talb-e-Ishhad .
10. In the instant case too, the responden ts had specifically denied the issuance of service of any notice of Talb-e- Ishhad . So much so in his statement as D.W.1 it was deposed on oath that no notice was issued or served. In this view of the matter it was required that the sending and service of notice should have been provided by exhibiting postal receipts in evidence, producing record of Post Office and the Postman. The petitioner neither tendered in evidence postal receipts nor examined any official of the Post Office with record nor produced the Postman. Being so, it was rightly concluded by the learned courts below that the notice of Talb-e-Ishhad could not be proved and that the petitioner had failed to establish the performance of Talb-e-Ishhad as required by law. Findings so recorded by the learned courts below do not suffer from any misreading or non-reading of evidence or from any error of law so as to warrant any interference.
11. As upshot of the above, the instant revision petition being devoid of substance, is accordingly dismissed .