CH. MUHAMMAD IQBAL, J. Through this Regular Second Appeal, the appellants have challenged the validity of judgment and decree dated 24.09.2013 passed by the learned Civil Judge, Phalia (M.B.Din) whereby suit for possession through pre-emption filed by the respondent was decreed and judgment and decree dated 19.07.2014 passed by the learned Additional District Judge, Phalia who dismissed the appeal of the appellants.
2. Brief facts of this appeal are that the respondent filed suit for possession through pre-emption against the appellants alleging therein that the appellants/ defendants purchased land measuring 24-Kanals situated in village Chicherwali, Tehsil Phalia District Mandi Bahuddin from one Muhammad Saleem through mutation No.1172 dated 22.06.2009. She claimed that she has superior right or pre-emption and on 10.10.2009 at 6:00 pm when she along with her brother Ashiq Hussain was sitting in the Baithak of her house, one Syed Muhammad Shah informed regarding transaction at once she announced to exercise the right of pre-emption whereafter on 13.10.2009 she sent notice of Talbe-Ishhad and on refusal she filed suit. The appellants/ defendants filed contesting written statement. Issues were framed and evidence of the litigating parties was recorded and learned trial court vide judgment and decree dated 24.09.2013 decreed the suit of the respondent.
The appeal of the appellants was also dismissed by the learned appellate court vide judgment and decree dated 19.07.2014. Hence, this appeal.
3. Learned counsel for the appellants submits that the impugned judgments and decrees of the learned courts below are based on misreading and non-reading of evidence, against the law and facts of the case; that no notice of Talb-e-Ishhad ever received by the appellants; that they are permanent resident of UK but on the said given address no notice was ever received.
4. Learned counsel for the respondent supported the judgments and decrees and prayed for dismissal of the instant appeal.
5. I have heard the arguments advanced by the learned counsel for both the parties and gone through the record with their able assistance.
6. As the suit of the respondent is for the enforcement of pre-emptory right for which the performance of mandatory talbs is sine qua non. The main controversy of Talb is entailed in issue No.2, which is reproduced as under:-- Whether the plaintiff fulfilled talbs to pre-empt over the suit land? OPP.
Onus to prove the above issue was upon the respondent / plaintiff. Respondent / plaintiff in the plaint stated that on 10.10.2009 Saturday at 6:00 p.m when she was sitting along with brother Ashiq Hussain in the parley (6%-4) of his house, Syed Muhammad Shah informed regarding the transaction. For ready reference, relevant paragraph 3 of the plaint is reproduced as under:- Ashiq Hussain appeared as PW-2 and in his statement stated that he is special attorney of the plaintiff and produced special power of attorney as Exh.P-7; further stated as under:-- Muhammad Shah appeared as PW-3 and he deposed as under:-
7. From From the perusal of plaint and statements recorded by PWs, admittedly, Khurshid Begum did not appear to substantiate her stance and it is settled law that the plaintiff/pre-emptor should herself appear to prove her personal right (right of pre-emption). Reliance is placed on the cases titled as Dilshad Begum v. Mst. Nisar Akhtar (2012 SCMR 1106), Nawab Din through L.Rs. v. Faqir Sain (2007 SCMR 401), Abdul Qayyu m v. Muhammad Sadiq (2007 SCMR 957) and Muhammad Ayub v. Mehr Gul through next friend Lal Khan (PLD 2012 . Peshawar 112). In the case of Abdul Qayyum ibid the Hon'ble Supreme Court of Pakistan held as under:-- "The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law, therefore, notwithstanding the provision of section 14 of Punjab Pre-emption Act, 1991 according to which if a person is unable to make demand under section 13 (ibid). his agent may make such demand on his behalf but the petitioner cannot get benefit of this exception firstly for the reason that he has claimed performance of Talb-i-Muwathibat in person and secondly, this exception appears to have been created to meet a -situation in which either the pre-emptor is minor or is invalid or is not in a position in the ordinary circumstances to make Talb-i-Muwathibat himself and appear in Court in person."
Further the Hon'ble Apex Court in the case of Nawab Din (ibid) held that:-- "Talb-i-Muwathibat is a personal act of prospective pre-emptor, whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of Talb-i-Ishhad is served, no Khasomat is preferred and when no defendant is in picture. Thus, the act of Talb-i- Muwathibat being pre-requisite to activate the very right of pre-emption and being subjective and spontaneous of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor."
It means that, there is no evidence was produced on behalf of the Khurshid Begum. As far as statement of PW-2 (special attorney of Khurshid Begum) is concerned, he recorded his statement as special attorney but not as witness it means that Muhammad Shah (informer) has neither disclosed the source of information nor appeared as witness as stated in Para-3 of the plaint, as such, she has failed to prove the performance of Talb-e-Muwathibat. Reliance is placed on the case titled as Subhanuddin and others v. Pir Ghulam (PLD 2015 SC 69). Source of information of the sale pre-empted must necessarily be pleaded in the plaint, but the same was not done by the pre-emptor which is fatal. Reliance is placed on the case titled as Muhammad Anwar v. Safeer Ahmed and 5 others (2017 SCMR 404) wherein the Hon'ble Supreme Court of Pakistan held as under:-- "6. It is now settled law that Talb-i-Muwathibat is a sine qua non for maintaining a Suit for Possession through Pre-emption. It is equally settled law that in the plaint, the time, date and place of Talb-i-Muwathibat must necessarily be pleaded along with the source of information of the sale pre-empted"
Furthermore, Advocate who wrote notice of Talb-e-Ishhad was neither produced nor Ashiq Hussain appeared as witness which tantamount to withholding of the aforementioned material witnesses and it would be legally presumed that if the said witnesses produced in the evidence, they would have deposed against the petitioner, as such, presumption under Article 129(g) of Qanun-e- Shahadat Order, 1984 clearly operates against her. Reliance is placed on the cases of titled as Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137), Muhammad Uris v. government of Sindh through Secretary Revenue Department Board of Revenue, Hyderabad and 2 others (1998 CLC 1359), Mst. Mohsina Saeed Tauni v. Muhammad Asif and others (PLD 2005 Karachi 585), Mian Muhammad Amin and another v. Mst. Khursheed Begum alias Naseem Begum through L.Rs. (PLD 2006 Lahore 371) and Land Acquisition Collector and another v. Mst. lqbal Begum through L.Rs. (2011 CLC 1342) and Naveed Akram and others v. Muhammad Anwar (2019 SCMR 1095). When the requirement of Talb-e-Muwathibat has not been fulfilled then there is no need to see the performance of Talb-e-Ishhad. Even otherwise, the appellant is permanently residing in UK and no notice was ever issued and served to him at his address in UK which tantamount to non-performance of Talb-i-Ishhad as well as such respondent/plaintiff failed to prove the performance of mandatory talbs, as required under section 13 of the Pre-emption Act.
8. From the above, it is established that the learned courts below did not even consider or discuss the oral or documentary evidence and passed the impugned judgments and decrees which are based on mis-reading and non-reading of record and also suffers from material illegality and irregularity, as such, the same are not sustainable in the eyes of law and are liable to be set-aside and no sanctity is attached to concurrent findings of the lower for a, which suffer from perversity, mis-reading and non-reading of evidence as well as against the law. Reliance is placed on the cases titled as Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24).
9. In view of above, this appeal is allowed. Judgment and decree dated 24.09.2013 passed by the learned trial court and judgment and decree 19.07.2014 passed by the learned appellate court are hereby set aside and suit of the respondent/ plaintiff is hereby dismissed.