Ch. Muhammad Masood Jahangir, J. The subject 13 Kanals 7 Marlas via oral sale mutation No.1620 of 24.09.2010 (Exh.P3) was sold out to the petitioner/vendee. This transaction was pirated by the respondent/pre-emptor by filing suit for possession through pre-emption claiming his superior right being shafi shareek, shafi khaleet & shafi jar. The pre-emptor further asserted that sale was kept secret, which for the first time, was disclosed to him at his residence before Muhammad Nawaz (PW2) and Gulzar Hussain (PW3) at 5.00 p.m. on 03.11.2010 by Ahmad Bakhsh (PW1) and that pronouncement of Talb-e-Muwathibat was promptly made in said majlis. The pre-emptor additionally pleaded that on 04.11.2010 notice Talb-i-Ishhad attested by true witnesses (names were not disclosed) was dispatched/sent to the petitioner/vendee through registered post A.D.
Significant to note that via contents of plaint, nowhere revealed that either said registered dak was delivered to the vendee or he refused to receive the same. The suit obviously was contested by the latter by filing written statement while asserting that transaction of sale from its inception was in the knowledge of the pre-emptor, however further facts with regard to alleged preferential right of pre-emption or that due talbs performed, were simply denied. The learned Trial Court facing with divergent pleadings of the parties settled issues enabling them to lead evidence in pros & cons and as a result of its appreciation, the suit was decreed by learned Trial Court via decision of 19.06.2015, which further was upheld by learned Appellate Court below through judgment dated 21.12.2015, thus this petition was filed to check legality & validity thereof.
2. Mr. Muhammad Muzammil Qureshi, Advocate, learned counsel for petitioner focused his arguments solely to the effect that neither second talb was pleaded nor proved per requirement of law, that testimony of Postman (PW5) was not reliable as he made inconsistent statement, and that original Acknowledgment Due Card along with Report of the Postman was not brought on suit record to confirm that either notice Talb-i-Ishhad delivered or that the vendee refused to receive it, besides that no prayer so far made to lead secondary evidence to that effect. In response, Mr. Nasir Mehmood Chaudhry, learned counsel for respondent/pre-emptor while supporting impugned concurrent decisions of the fora below, emphasized with great vehemence that in exercise of revisional jurisdiction those cannot be brushed aside.
3. Arguments heard, record perused.
4. As learned counsel for the petitioner has confined his arguments only to the extent that second demand was not fulfilled in accordance with law, thus this Court is also going to restrict itself to that extent. Adverting to features of the case in hand, per para-4 of the plaint, stance of the pre- emptor being most relevant, in verbatim is reproduced hereunder:- {{URDU TEXT}} Nonetheless, according to basic law of pre-emption duly interpreted by superior Courts, sine qua non for the pre-emptor to prove by leading solid and consistent evidence that notice Talb-i-Ishhad was not only dispatched through registered post A.D., rather that it was acted upon the vendee as well or that he refused to receive it. As noted above, through pleadings some essential facts were kept in dark, however when evidence of the pre-emptor (PW7) was considered, he in his statement-in-chief to that effect only deposed that:- {URDU TEXT}} Thus pre-emptor again prevented himself to expose that either after due delivery of notice Talb-i- Ishhad, Acknowledgment Due Card was returned to him or on refusal to accept the same, Registered Post Envelop along with rider came back. Anyhow, last source for the pre-emptor to prove the above noted chain of facts, was the concerned Postman, who being PW5 in his statement-in-chief (available at page 64) though categorically claimed to have personally delivered registered post to the petitioner/vendee, yet while deposing in his cross-examination (available at page 63) as under:- {URDU TEXT}} and that:- {URDU TEXT}} doubted whatever worded in the statement-in-chief. See Mst. Zaitoon Begum Vs. Nazar Hussain and another (NLR 2014 Civil (SC) 445), wherein it was held that a witness, who is not found to be consistent in his testimony and has changed his/her stance, cannot be relied upon. The relevant extract thereof, for ready reference, is reproduced here:- *It is well embedded principle of law that "one who makes statements, mutually inconsistent statements in the same matter, at two occasions, with regard to the same issue, is not entitled to be listened to" because the credibility of the person, giving testimony on oath, is shaken to a great extent, once she is found indulging in jumping from one stance and catching on another stance, such eventuality would give rise to strong presumption that under the garb of protection given to illiterate lady, she is herself indulging in misrepresentation and attempting to mislead the Court to reach at a patently wrong conclusion.* It further was drastic that despite Postman was summoned and his statement-in-chief recorded, but Acknowledgment Due Card was not put/confronted to him. Had the registered post been handed over to Postman for its delivery, he was under obligation to make report on the A.D. Card that same was handed over to the vendee. Non-tendering of A.D. Card during evidence of Postman was a fatal drawback on the part of pre-emptor. So much so, through statements of other witnesses or even via statement of counsel for the pre-emptor the A.D. Card was never brought on suit record. Its withholding compelled the Court to draw adverse inference that notice Talb-i- Ishhad was not served upon the vendee.
5. The argument of learned counsel for the respondent/pre-emptor that A.D. Card might have not been received back or that it was lost, thus for such lapses could not be exhibited in evidence, is not acceptable. Had it been so, as assumed or imagined by learned counsel, then the pre-emptor was under obligation to have made the request for examination of secondary evidence. It could be granted subject to proof that A.D. Card was destroyed or lost. In absence thereof, the pre-emptor failed to fulfill the mandatory requirement of law. The next submission of Mr. Nasir Mehmood Chaudhry, learned counsel for the pre-emptor that petitioner/vendee never denied to have received the notice Talb-i-Ishhad, and in such situation his client was not obliged to prove the said fact, is ill founded. The vendee (DW1) in his cross-examination (available at page 79) while deposing that:- {{URDU TEXT}} pertinently denied the receipt of such notice.
6. Mr. Nasir, learned counsel for the respondent/pre-emptor, while relying upon the recent decision passed by august Supreme Court rendered in case reported as Ghulam Murtaza Vs. Muhammad Rafique and others (2022 SCMR 1220) forcefully emphasized that when the postal receipt and the registered envelop properly addressed containing the requisite notice were duly made available on suit file, then this would amount to sufficient compliance of law, is not well founded. The referred case law has minutely been gone through, wherein the postal receipt, registered envelop and "especially" A.D. Card were duly exhibited, thus that being run on distinguishable facts cannot be applied in this case. Moreover, each case is to be decided per its own merit. Even otherwise, during course of hearing of referred case the hon'ble Bench (comprising two members) might not be apprised to the earlier decisions of the same Court like Muhammad Bashir and others Vs. Abbas Ali Shah (2007 SCMR 1105), Dayam Khan and others Vs. Muslim Khan (2015 SCMR 222) and Khan Afsar Vs. Afsar Khan and others (2015 SCMR 311) passed by larger Benches consisting of three honourable members each, wherein repeatedly held that the requirement of "sending notice in writing" is followed by A.D. Card, which signifies that intention of law is not merely dispatch of a formal notice on the part of pre-emptor conveying his/her intention to pre-empt, but a notice must be served on the addressee is real import of relevant provision of law. To better understand, para-11 of Muhammad Bashir's case (supra) being relevant is given below:-
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 "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement 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".
The apex Court, in this case while referring/discussing chain of authorities came to the conclusion that "presumption of service" in terms of Article 129 of Qanun-e-Shahadat, 1984 read with section 27 of the General Clauses Act does not arise in pre-emption cases, if the addressee disowns the receipt of notice Talb-i-Ishhad. The hon'ble Supreme Court again in judgment reported as Basharat Ali Khan Vs. Muhammad Akbar (2017 SCMR 309) held as under:- ***Indeed, the acknowledgement due card was not produced on record by the respondent/preemptor nor was the postman, who may have delivered the notice, called to the witness box. Consequently, according to the pleadings and also the evidence on record, the respondent/pre-emptor has not discharged his burden to prove the service of notice of Talb-i- Ishhad as required under section 13(3) of the Act, 1991. The respondent/pre-emptor thereby failed to satisfy his mandatory obligation under the law. Such default is fatal for his pre-emption suit. and in Mst. Bibi Fatima Vs. Muhammad Sarwar (2022 SCMR 870) while dealing with almost identical situation concluded that:-
5. Heard, perused the record with the able assistance of learned counsel for the parties. First we take matter of performance of Talb-e-Ishhad. Plaintiff/respondent claims that he sent the notice of Talb-e-Ishhad through registered post with acknowledgment due. The appellant/defendant denied this fact in his written statement. There is no cavil with the proposition that in 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 post with 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. Reference may be made to "Muhammad Bashir v. Abbas Ali Shah" (2007 SCMR 1105), "Bashir Ahmed v. Ghulam Rasool" (2011 SCMR 762), "Allah Ditta v. Muhammad Anar" (2013 SCMR 866), "Dayam Khan v. Muslim Khan" (2015 SCMR 222), "Basharat Ali Khan v. Muhammad Akbar" (2017 SCMR 309),"Sultan v. Noor Asghar" (2020 SCMR 682). In these circumstances, it was the duty of the plaintiff/respondent to prove not only the issuance of notice of Talb-e-Ishhad in accordance with law and sending of notice to the vendee/defendant through registered post, acknowledgment due but also the service of notice upon vendee/defendant or refusal thereof by producing the Postman and acknowledgment receipt. Admittedly the plaintiff/respondent has not produced the original postal envelope if returned to him on refusal to receive the same by vendee/defendant neither the receipt of acknowledgment of delivery of notice produced nor the postman. In this way the plaintiff miserably failed to prove the performance of Talb-e-Ishhad in accordance with law.
Thus it can safely be concluded that the respondent/pre-emptor failed to prove due performance of second demand under the law, therefore findings of both the Courts on issue No.2 are reversed and the same is answered in negative.
7. As far as contention of learned counsel for respondent/pre-emptor that concurrent finding of the Courts below cannot be disturbed by this Court while exercising revisional jurisdiction provided under section 115 CPC is not tenable as both the judgments & decrees having been found to be result of misreading/non-reading of evidence as well as non-adherence to the law laid down in this behalf by the superior Courts are not sustainable in the eye of law. It is correct that normally this Court does not interfere in the concurrent findings of fact recorded by the Courts below, but here the impugned decrees being classic example of wrong exercise of jurisdiction and clearly tainted with misreading & non-reading of evidence besides patent violation of the law floating on its surface cannot be sustained. On being faced with such situation, this Court cannot shut its eyes and is always under obligation to rectify the error by interference in such like illegal findings.
Reliance can be placed upon the judgments reported as Ghulam Muhammad and 3 others Vs. Ghulam Ali (2004 SCMR 1001) Mushtari Khan vs. Jehangir Khan (2006 SCMR 1238), Muhammad Nawaz @ Nawaza Vs. Member Judicial BoR & others (2014 SCMR 914) and Nazim-ud-Din & others Vs. Sheikh Zia-ul-Qamar & others (2016 SCMR 24).
8. For the foregoing reasons this petition succeeds, which is allowed, impugned judgments of the two Courts below are hereby set aside and suit of the respondent/pre-emptor is dismissed leaving the parties to bear their own costs.