SAFDAR SALEEM SHAHID, J.---This civil revision is directed against the judgment and decree dated 17.07.2013 passed by learned Addl. District Judge Sambrial whereby suit of the respondent/ plaintif f was decreed by setting aside the judgment and decree dated 06.07.2012 passed by learned Civil Judge 1st Class, Sambrial.
2. Brief facts of the case are that petitioner/defendant purchased land measuring 32-K 16-M situated in village Gudiala Tehsil Sambrial District Sialkot vide registered sale deed dated 05.05 .2004 in consideration of Rs.
29,05,000/-. One Ghulam Rasul (the original plaintif f since dead) alleged that he got the information of sale on 21.05.2004 after Esha prayer from Khurshid Ahmad P.W-4 and immediately announced to pre-empt the sale in the same Majlis. Notice of Talb-i-Ishhad was allegedly issued on 26.05.2004. The suit for pre-emption was then filed by said Ghulam Rasul; that during the pendency of the suit and before the framing of issues, Ghulam Rasul pre- emptor died and learned trial Court directed to file the amended plaint in this regard vide order dated 21.07.2005.
Initially , all the legal heirs 13-in number were impleaded as plaintif fs but subsequently the other legal heirs withdrew themselves from the suit in favour of Khalid Zia, one of the legal heirs; that fresh amended plaint was filed mentioning Khalid Zia as the sole plaintif f who is now the respondent in this civil revision; that the claim of the pre- emptor was as Shafi Shareek, Shafi Khalit and Shafi Jar;
3. The petitioner/defendant contested the suit and denied the fact that the respondent/plaintif f performed Talbs and also that respondent/plaintif f has no superior right of pre-emption.
Out of pleadings of the parties, the following issues were framed by learned trial court vide order dated 08.10.2008.
ISSUES:
1. Whether deceased plaintif f Ghulam Rasool has got superior right of pre-emptive qua the defendant in respect of subject price of land measuring 32- Kanals 16-Marlas?OPP .
2. Whether the deceased plaintif f has properly made requisite Talbs of pre-emption? OPP
3. Whether the sale incorporated in registered sale deed No.1917 dated 05.05.2204 is ostensible sale price Rs.29,5000/- if so its ef fect ?OPP
4. Whether the deceased plaintif f estopped by his word and conduct to file the instant suit?OPD
5. Whether the suit has been filed within limitation ?OPP
6. Whether the defendant is entitled to recover miscellaneous expenditures in case the suit be decreed in favour of the plaintif f and if so, to what extent?OPD.
7. Whether the suit of the plaintif f has not been properly valued for the purpose of jurisdiction and court fee? OPD
8. Relief. that since all the legal heirs of the original plaintif f withdrew their alleged right of the suit in favour of the respondent/ plaintif f Khalid Zia, hence the petitioner claimed that the suit was hit by the principle of partial pre- emption, thus issue No.7-A was also framed; that learned trial Court vide judgment and decree dated 09.04.201 1 dismissed the suit on issue No.7-A while treating it preliminary issue; that the respondent/ plaintif f challenged the said judgment and decree through appeal which was accepted by learned Addl. District Judge Sambrial vide judgment and decree dated 28.06.201 1 and the case was remanded to learned trial Court to decide the same on merits afresh; thereafter the parties led their evidence; that the learned trial Court vide judgment and decree dated 06.07.2012 dismissed the suit; that being aggrieved by the said judgment and decree, the respondent/plaintif f filed an appeal before learned Addl. District Judge Sambrial who reversed the findings on the issues and decreed the suit of the plaintif f/respondent vide judgment and decree dated 17.07.2013 which has been challenged by petitioner/defendant through instant Civil Revision on the ground that learned Addl. District Judge did not apprise the evidence of the parties and even on the law point the proposition was not correctly consolidated.
4. Learned counsel for the petitioner argued that right of pre-emption is not inheritable; that legal heirs of Ghulam Rasul were not legally authorized to be inserted in the suit as plaintif fs/pre-emptors as a replacement of Ghulam Rasul deceased; in this regard he relied on cases reported as "Muhammad Ishaq v. Muhammad Sadiq (2007 SCMR 1478 ), Sardar Ali and others v. Muhammad Ali and others (PLD 1988 Supreme Court 287), Baldeo Misir v. Ramlangan Shukul (AIR 9124 Allahabad 82), Bilal Ahmad and another v. Abdul Hameed (2020 SCMR 445); It was argued that if the legal heirs of the pre-emptor inherited the rights of pre-emption, all the legal heirs are legally bound to appear in the witness box to prove the Talb-i-Muwathibt. Reliance is placed on case law reported as Muzaf far Hussain v. Mst. Bivi and 7 others (PLD 2012 Lahore 12). It was further argued that it has been held by the Court that if any of the legal heir does not appear before the Court to prove, Talb-i-Muwathibat, the suit would be dismissed; counsel further argued that respondent/ plaintif f was having no right of pre-emption when the petitioner purchased the land and it is established that pre-emptor should have the right of pre-emption at all stages. It was further argued that these were the legal aspect of the case that the respondent/plaintif f was having no right to become the plaintif f after the death of said Ghulam Rasul ; that the withdrawal of rights of the other legal heirs in favour of present respondent/plaintif f was also not legal, so-far-as other legal aspect of the proposition is concerned Talbs were not proved as per requirement of law; that regarding Talb-i-Muwathibat neither any of the witness stated about the exact date, time and place nor it is mentioned in the plaint or in the notice as required; that the most important factor was that respondent had not made Talbs so how he could be the witness of Talb-i- Muwathibat and he had not stated anything regarding that fact; Reliance is placed on the cases reported as Mir Muhammad Khan and 2 others v. Haider and others (PLD 2020 Supreme Court 233), Muhammad Anwar v.
Safeer Ahmed and 5 others (2017 SCMR 404), Mst. Kaneez Begum v. Muhammad Asghar and others (2014 MLD 1179, Lahore); It was further argued that the witnesses were not sure and they are not truthful witnesses as it is evident from their statements; that Khurshid Ahmed P.W-4 who imparted the information to Ghulam Rasul pre- emptor regarding the sale states that, it was Issha time but he was unable to point out the exact time in this regard; that Muhammad Akhtar P.W-5 is the witness of Talb-i-Ishhad and his evidence is also contradictory and he does not qualify as a truthful witness. It was further contended that if there is difference of time of 10/15-minutes in performance of Talb-i-Muwathibat, same is fatal to the pre-emption right. Counsel relied upon the case reported as Mst. Rooh Afza v. Aurangzeb and others (2015 SCMR 92), Mian Pir Muhammad and another v. Faqir Muhamamd through L.Rs and others (PLD 2007 Supreme Court 302); that Talb-i-Muwathibat was not proved in any way because the respondent/ plaintif f does not claim to be a witness of perfo rmance of Talb-i-Muwathibat for which he has narrated the story in the suit, donating it to his grand-father and same is hearsay evidence and anything in the statement beyond pleadings is not admissible in evidence. Counsel relied upon the cases Faqir Muhammad and 8 others v. Abdul Momin and 2 others (PLD 2002 SC 594), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914). It was further argued that respondent/plaintif f was failed to prove Talb-i-Muwathibat as required because neither there is any jumping demand from the respondent/plaintif f nor any other requisite requirement is fulfilled as required for Talb-i-Muwathibat. It was further argued that there is no need to further discuss about fulfilment of Talb-i-Ishhad by the respondent/plaintif f, when Talb-i-Muwathibat is not proved it would be of no useful to see that whether respondent/plaintif f had fulfilled the Talb-i-Ishhad, however , this is an admitted fact that notice of Talb-i-Ishhad was not served to the petitioner/ defendant; that it was not proved regarding the service of Talb-i-Ishhad as postman had died and the witness who has been produced in the witness box on behalf of the postman to prove that notice was served to the petitioner , had denied to identify the signatures of the deceased postman and the witness also mentioned that he had not worked with the deceased postman; that the address on the said notice was also wrongly mentioned.; that according to scheme of law if the notice is denied by the defendant/petitioner , the respondent/ plaintif f was under obligation to prove the same. Counsel relied upon the cases reported as Muhammad Bashir and others v.
Abbas Ali Shah 2007 SCMR 1105), Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309); In case reported as Allah Ditta through L.Rs and others v. Muhammad Anar (2013 SCMR 866) it was observed by the Court that it was the duty of the plaintif f/respondent to prove the notice of Talb-i-Ishhad inspite of the fact that defendant had conceded its reception; that the pre-emptor has to stand on his own legs and all requirements are to be fulfilled by the pre-emptor; that the respondent/plaintif f was failed to prove Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law; that learned Civil Judge while dismissing the suit of the plaintif f/respondent has rightly consolidated the findings on the issues regarding the Talbs; counsel argued that the P.Ws are not truthful , their evidence regarding Talb-i-Muwathibat and Talb-i-Ishhad is not up to the mark; that the respondent/plaintif f himself is not a witness of Talb-i-Muwathibat and he is not entitled to pre-empt for this transa ction; that learned Addl. District Judge has not correctly apprised the evidence of the P.Ws. Thus, by accepting this petition, impugned judgment passed by learned Addl. District Judge Sambrial be set aside and suit filed by the respondent/plaintif f for possession through pre-emption be dismissed.
5. The learned counsel for the respondent/plaintif f on the other hand resisted the arguments advanced by learned counsel for the petitioner/ defendant and argued that under the new law of pre-emption, the right of pre-emption is inheritable and there is no legal bar for the legal heirs to become a pre-emptor if their predecessor-in-interest who had filed the suit for pre-emption passed away; that minor discrepancies in the statements of witnesses will not affect the pre-emption right; that the respondent/ plaintif f has preferential pre-emption right over the petitioner/ defendant; that the respondent/plaintif f has proved through reliable evidence that Talb-i-Muwathibat was made properly and it was promptly announced Talb by the original pre-emptor ; that Khalid Zia respondent is one of the legal heirs of Ghulam Rasul who has been given the rights by the other legal heirs to pre-empt the suit land. It was further contended that the status as pre-emptor of the respondent is not bar by any way; that the required evidence regarding Talb-i-Ishhad was proved by the respondent/plaintif f and as such there is no discrepancy in the statements of the witnesses; that learned Addl. District Judge while deciding the case has rightly apprised the evidence of the parties; that there was no illegality or irregularity in the judgment passed by learned Addl. District Judge. Hence instant petition is liable to be dismissed.
7. It is pertinent to mention here hat after framing the preliminary issue No.7-A, and hearing the arguments of the parties, the learned Civil' Judge dismissed the suit of the respondent/plaintif f vide judgment and decree dated 09.04.201 1. earned Addl. District Judge who vide udgment and decree dated 28.06.201 1 emanded the case to learned trial Court or decision afresh and said judgment was of challenged by the respondent/plaintif f, erefore, now at this stage he cannot take at objection regarding issue No.7-A heady decided. However , it is important at whether the present respondent/ laintif f had fulfilled Talb-i-Muwathibat r not at the time of sale. The respondent/ laintif f was not having superior right of re-emption to file the suit. Even otherwise on account of death of original pre-emptor the present respondent/plaintif f tepped into shoes of Ghulam Rasul and ecome pre-emptor as it has been iscussed in the preceding paragraph and it is important for pre-emptor to have superior right on three stages of pre-emption, at the time of sale, at the time of filing of the suit and at the time of decree, certain ly this aspect goes against the respondent/plaintif f. Even on the point of inheritance, if his status as pre-emptor is admitted as correct he does not qualify to make statement to establish Talb-i-Muwathibat. His evidence regardin g Talb-i-Muwathibat is hearsay evidence which is inadmissible. Neither the respondent/ plaintif f was present at the time of making Talb-i- Muwathibat nor was present at the time of notice of Talb-i-Ishhad, his evidence is not in accordance with law, as required under section 13 of Punjab Pre-emption Act 1991. Reliance is placed on case law reported "Ghulam Hussain v. Muhammad Rasheed and 6 others" (2018 MLD 117, Lahore) wherein it has been observed by this Court as under:-- ##TE# ----S.13---Suit for pre-emption--- Death of original pre-emptor during pendency of suit---Non-appearance of all the legal heirs in witness box---Effect---Name of a legal heir/witness of deceased pre-emptor not mentioned in pleadings---Statement of a legal heir/witness beyond the plead-ings--- Admissibility--- Applicant/ defendant contended that the statement of only one legal heir as a witness, without power of attorney on behalf of other legal heirs, was inadmissible and said witness was not present at the time making of Talb-e-Muwathibat as his name was mentioned neither in the plaint nor in the notice of Talb-e-Ishhad---Respondent/plaintiff contended that first appellate Court had wrongly modified the judgment of trial Court by giving equal rights of pre-emption to both the co-sharers--V alidity in order to succeed a suit for possession on the basis of pre-emption, it was mandatory and imperative as well as essential to prove the performance of Talbs in accordance with law as elaborated under S.13 of the Punjab Pre-emption Act, 1991 and when Talbs were not proved as per dictates and requirement of law, the same was fatal to the suit----In the present case, only one legal heir/son appeared as pre-emptor on his behalf and on behalf of the other legal heirs of original pre-emptor , but he failed to produce any power of attorney executed in his favour authorizing him to appear on their behalf -- said witness deposed that he was present at the time of making of Talb-i-Muwathtbat by his dece ased father , but the plaint as well as alleged notice of Talb-i-Ishhad was silent in that regard as neither in the plaint nor in the notice of Talb-i-Ishhad his name emerged, whether name of other witnesses including the informer appeared; meaning thereby that the statement of said legal heir was beyond the pleadings and the same was inadmissible -Right to acquire suit property by exercising right of pre-emption accrued on the date of sale but when at that time the legal heirs did not have such right, coupled with non- appearance at the time of making Talb-i-Muwathibat, the suit was liable to be dism issed on such single score, as making of Talb-i-Muwathibat had not been proved by the respondent/ plaintiffs in accordance with law--- Even if right of pre-emption of respondent/plaintiffs was presumed, even then non-appearance of all legal heirs turned fatal to the respondent/ plaintiff, as right of pre-emption was a personal right which could be exercised personally , which was missing in the present case---respond ent/ plaintiff had failed to prove performance of Talb-i-Muwathibat, as per mandate of law, the question of subsequent Talbs lost their value and no decree for possession through pre- emption could be passed in their favour --- Two courts below had failed to appreciate evidence on record and impugned judgments were set aside being not sustainable in the eye of law-- The other witnesses of Talb-i-Muwathibat are also not consistent and his statement is not up to the mark as required. The witnesses were not sure about time, date and place. Furthermore only one witness of notice is examined in the witness box whereas as per law two witnesses are required to prove a document and the witness who appeared, has made a contradictor y statement. Reliance is placed on case reported as "Sultan v. Noor Asghar ( 2020 SCMR 682 ) wherein Hon'ble Supreme Court observed as under:- ---S. 13(3)--- Suit for pre-emption---T alb-i-Ishhad, notice for--proof--pre-emptor/appellant had not produced the postman to prove the service or refusal of the notice of Talb-i-Ishhad allegedly issued through registered acknowledgement due---V endee had not admitted that he had received a notice of Talb-i-Ishhad, duly attested by two truthful witnesses issued within two weeks from the alleged date of knowledge--- Statement of vendee in Court made it evident that the notice was served after filing of the suit, and the notice was issued by the Court--Further , even the original notice of alleged Talb-i-Ishhad had not been produced and got exhibited in the documentary evidence---Suit filed by pre-emptor was rightly dismissed--- The notice was not as such proved by the respondent/plaintif f. The postman although has died but the person who appeared to make statement on behalf of the postman, was legally not entitled to make the same as he had not worked with the deceased postman and he is not acquaintance with the writing. Furthermore the notice was not served to the petitioner/ defendant, there fore, the respondent/ plaintif f was unable to prove Talb-i-Muwathibat and Talb-i-Ishhad. Keeping in view the case laws referred above by learned counsel for the petitioner/ defendant, the respondent/ plaintif f remained failed to establish his right of pre-emption and to prove his claim. The learned Addl.
District Judge has certainly committed an error while apprising the evidence of the parties and while forming his opinion on the issues regarding Talbs. It is settled law that when Talbs are not proved there is no pre-emption right.
8. The upshot of above discussion is that petitioner/defendant has proved that learned Addl. District Judge Sambrial has committed an error while passing the impugned judgment and decree dated 17.07.2013, whereas the judgment and decree dated 06.07.2012 passed by learned Civil Judge Sambrial was in accordance with law. Thus, instant petition is accepted, judgment and decree dated 17.07.2013 passed by learned Addl. District Judge Sambrial is set aside and judgment and decree dated 06.07.2012 passed by learned Civil Judge Sambrial is upheld. Resultantly the suit of the respondent/plaintif f for possession through pre-emption is dismissed. No order as to costs. However , the respondent/plai ntiff is at liberty to withdraw the amount of Zar-i-Punjam deposited by him, in accordance with law .