SAFDAR SALEEM SHAHID, J. Through this RSA the judgment at variance has been assailed by the appellants. The suit for pre-emption filed by the respondent (Khuda Baksh) was dismissed by the learned trial court vide judgment and decree dated 26.07.2011 whereas judgment and decree dated 26.07.2011 was assailed before the learned Additional District Judge who allowed the appeal vide judgment and decree dated 12.05.2012 and decreed the suit of the respondent for pre- emption in his favour and against the appellants.
2. The brief facts necessary for the decision of the RSA are that vide mutation No.6520 dated 24.08.2006 the appellants and their real brother late Azmat Sher, purchased 87-Kanals and 04- Marais from Munawar Hussain, Akhtar Hussain and Jaffar Hussain for consideration of Rs.5,00,000/-. The predecessor of the respondents filed the pre-emption suit on 11-12-2006 alleging that he had attained the knowledge of the sale on 22.11.2006 through Ghulam Yaseen (PW-2) and in presence of witnesses he agitated his right of pre-emption. It was also the version of the respondent (predecessor in interest of the respondents) that he fulfilled all the requirements of Talabs. The version of the pre-emptor was that the land was purchased in sum of Rs.2,00,000/- whereas in order to defeat the right of pre-emption of the pre-emptor Rs.5,00,000/- consideration was mentioned through mutation No.6520 dated 24-08-2006. The stance of the pre-emptor was that he was co-sharer in the Khata and had the preferential right because of common way.
Whereas the vendee has no such right, therefore, the right of the pre-emptor was preferential qua the right of the appellants. The appellants filed the contesting written statement. The learned Civil Judge out of the pleadings framed the following issues:- ISSUES
1. Whether the plaintiff has no cause of action? OPD
2. Whether the suit is not maintainable in its present form? OPD
3. Whether the plaint bears wrong description of the property? OPD
4. Whether the plaintiff is estopped by his words and conduct? OPD
5. Whether the suit is time barred? OPD
6. Whether the plaintiff has wrongly evaluated the value of the suit for the purpose of court-fee?
OPD
7. Whether the defendant paid a sum of Rs.5,00,000/- besides counsel fee and mutation fee and the defendant is entitled for recovery of the same in case the suit is decreed? OPD
8. Whether the defendant concealed the sale from the plaintiff? OPP
9. Whether the plaintiff has superior right of pre-emption qua the defendant? OPP
10. Whether the plaintiff has fulfilled the legal requirements of all Talabs? OPP
11. Whether the defendant in reality purchased the property for Rs.2,00,000/- whereas an exorbitant amount of Rs.5,00,000/- has been entered in the mutation No.6520 dated 24.08.2006 in order to deprive the plaintiff from exercising his right of pre-emption? OPP
12. Whether the plaintiff is entitled for decree as prayed for? OPP
3. The respondents produced the oral as well as documentary evidence. Khuda Baksh the pre- emptor himself appeared as PW-1 and got examined Ghulam Yaseen (informer of impugned sale) as PW-2, Muhammad Shafi as PW-3, Samar Hussain clerk as PW-4, Manzoor Hussain, Registry Clerk as PW-5. Whereas the pre-emptor produced the documentary evidence,
1. Ex.P1 to Ex.P4, the notices sent by the pre-emptor to the appellants.
2. Ex.P5 to Ex.P8, receipts issued by the postal authorities.
3. Ex.P9 to Ex.P12, acknowledgment due of notices sent through Registered Post.
4. Ex.P13, Copy of the plaint in suit titled "Muhammad Hafiz v. Laal and 29 others".
5. Ex.P14, Judgment and decree dated 06.01.1992.
6. Ex.P15, copy of record of rights for the year 2008-09.
7. Ex.P16, copy of mutation No.6520.
8. Ex.P17, copy of mutation No.6541.
9. Ex.P18, copy of mutation No.6429.
10. Ex.P19, copy of mutation No.6602.
11. Mark-A, copy of judgment dated 29.06.1999.
12. Mark-B, order dated 29.09.2003 in Civil Revision No.1229 of 1994.
13. Mark-C, copy of application filed before DOR, Bhakar with title "Muhammad Hafiz and others v.
Phulla others"
14. Mark-D, order dated 29.04.2008 passed by DOR, Bhakar.
15. Mark-E, order of DOR are already been produced as Mark-D
4. On the other hand, appellants produced the oral as well as documentary evidence. In Oral evidence, one of the appellants Ahmad Sher appeared as DW-I whereas Malik Ghulam Hurr, Halqa Patwari appeared as DW-2. Copy of Rooznamcha Waqiati dated 22.11.2006 was produced as Ex.D-1 in the documentary evidence.
5. Learned Civil Judge dismissed the suit of the pre-emptor on the ground that neither the pre- emptor ever proved that he fulfilled the conditions of Talabs as required nor any of the other issue onus to which was placed upon the pre-emptor. The preferential right was also not established by the pre-emptor, whereas the pre-emptor was failed to prove that the price Rs.5,00,000/- was not fixed and paid and it was infact paid Rs.2,00,000/-. This Judgment and decree were assailed by the pre-emptor. The learned Additional District Judge while discussing the issue No.9 prior to discussing the other issues held that the pre-emptor was Sharik-Khata whereas the appellants have no such right. The learned Additional District Judge relied on the documents from Ex.P-13 to Ex.P-15 and held that the appellants were not in the field as joint owners. While referring the judgment and decree of the court Ex.P-13 and Ex.P-14 the learned Additional District Judge held that the vendees were not equally entitled with the pre-emptor regarding the preferential rights of the pre-emption of the suit land. While deciding issue Nos.10 and 12 the learned Additional District Judge held that the pre-emptor has proved all the requirements of Talabs. The minor discrepancies cannot be made ground to discard the right of pre-emption. The evidence of the PWs was confidence inspiring regarding the Talabs. This was also opined that the minor discrepancies do occur naturally when considerable period has elapsed between happening a fact and its narration before the court. With this analogy, the learned Additional District Judge decided the issues of Talab in favour of the pre-emptor. Through this RSA the judgment and decree has been assailed.
6. Arguments heard. Record Perused.
7. At the outset of the proceedings today before this court, the counsel for respondents Nos.1-B and 1-D made the statement that the respondents mentioned above conceded the right of the appellants and surrendered their right to argue the matter. The learned counsel also made the statement that the said respondents have no objection if the appeal of the appellants is accepted.
8. Demands of Pre-emption
1. Under section 13 of the Punjab Pre-emption Act 1991 the right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following orders:-
1. Talb-i-Muwathibat
2. Talb-i-Ishhad
3. Talb-e-Khasomat The question before this court is Talb-e-Muwathibat means immediate demand by pre-emptor in the sitting or meeting/Majlis in which he has come. to know of the sale, declaring his intentions to exercise the right of pre- emption.
Talb-i-Ishhad means demands by establishing evidence.
Talb-e-Khasoomat means demands by filing suit.
2. When the fact of sale comes within the knowledge of pre-emptor through any source, he shall make Talb-e-Muwathibat.
3. Whether a pre-emptor has made Talb-e-Muwathibat under subsection (2) he shall as soon as, thereafter as possible but not later than two weeks from the date of knowledge to make Talb-i- Ishhad by sending a notice in written, attested by two truthful witnesses under registered cover acknowledgment due to the vendee, confirming his intentions exercise the right of pre-emption.
Whether there is a lack of post office facilities, it is not possible for the pre-emptor to give notice, he may make Talb-i-Isshad in presence of two truthful witnesses.
4. Whether a pre-emptor has satisfied the requirements of Talb-e-Muwathibat under subsection
(2) and Talb-i-Isshad under section 3 he shall make Talb-e-Khasoomat in the court of competent jurisdiction to enforce his right of pre-emption. Any pre-emptor who fails to fulfilled anyone of these elements, in the manner provided by law and interpreted and explained by courts, cannot be successful in his attempt to pre-empt the sale of the property that falls within the ambit of law on pre-emption.
9. The bare reading of section 13 of Pre-emption Act clears that the pre-emptor has to disclose the source when, how and from whom he attained the knowledge of sale of the property under pre- emption. Then he has to prove that he made the immediate demand/Jumping demands as required to show his intention to pre-empt the land and this jumping demand should be immediately made in presence of the witnesses in the same Majlis where he came to know about the impugned sale.
10. In the proposition the pre-emptor version was that he attained the knowledge from Ghulam Yaseen PW-2 on 22.11.2006 at about 04:00 PM when the pre-emptor was sitting alongwith Shafi Muhammad PW-3 in his Baithak where Ghulam Yaseen PW-2 came and mentioned about the impugned sale of the land. I would like to reproduce paragraph No.4 of the plaint The requirement of law is that specifically when the pre-emptor has asserted his knowledge of attaining the information about the impugned sale after the date of limitation by the statue i.e. attestation of mutation (impugned). Then the pre-emptor is under obligation to prove the stance regarding attaining the knowledge of the impugned sale as stated by the pre-emptor. This is important that the appellant in reply to paragraph No.4 of the plaint has taken a specific stance, denied the version of the respondents with specific stance as under The pre-emptor in order to prove his version of Talb-e-Muwathibat appeared as PW-1 and in the cross-examination, he mentioned that he came to know about the impugned sale through PW-2 Ghulam Yaseen, who attained the knowledge of sale from the office of Patwari. PW-2 stated in the evidence that he attained the knowledge of sale from Patwari. He further explained that on 22.11.2006 he visited the office of Patwari at about 10:00 a.m. in order to get Khasra Girdawri of his land. The Patwari told him about the impugned sale. The evidence of both the PWs 1 and 2 reflects that the original source of the disclosure of impugned sale was the said Patwari. In the scenario of the written statement of the appellants that they had specifically denied from the version of the respondents that the respondents came to know about the impugned sale on 22.11.2006 through Ghulam Yaseen and this denial is specifically mentioned in the written statement. The rule is that the pre-emptor was then under obligation to prove that when he came to know the fact of sale and through whom. The said Patwari was not produced in the evidence by the pre-emptor which could have been the best possible evidence available with the pre-emptor to prove his version regarding the attaining of knowledge about the impugned sale. Article 129 of Qanun-e-Shahadat says "The Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." that if the best possible evidence to prove a fact is withheld it will be presumed that if the same had been produced the witness would have not supported the version of the person. Reliance is placed on case titled "Muhammad Mal Khan v. Allah Yar Khan" (2002 SCMR 235). The PW-2 when appeared in the witness box also had not produced the copy of Khasra Girdawri which he obtained from the Patwari on that day. The question is that whether the pre-emptor received the information on that very day when he has shown his demand/intention to pre-empt the land in the suit is true and proved. Article 71 of Qanun-e-Shahadat says that "If it refers to a fact, which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it."
The pre-emptor was unable to justify and prove his version that he came to know about the impugned sale on that very date and time which is mentioned in the plaint. The appellant when appeared as DW-1 specifically stated that the respondents were in the knowledge of the impugned sale from the very beginning and through the written statement in Paragraph No.1, the appellants have specifically mentioned that no such Talabs were made by the respondents at the relevant time. This portion of statement of DW-1 was never cross-examined by the pre-emptor. The appellant Ahmad Sher DW-1 specifically stated in his statement that he purchased the land and the mutation was sanctioned in Jalsa Aam but no cross-examination was done to this portion of the statement of DW-1. It is settled principle of law that any portion of statement which has been stated by the witness, if not cross-examined will be considered to be admitted. Reliance is placed on case titled as "Muhammad Rafique and other v. Abdul Aziz" (2021 SCMR 1805) in paragraph No.9 of the judgment.
Another important aspect of the proposition is that Patwari appeared on behalf of the defendant as DW-2 but no question was put to him regarding the fact that DW-2 passed the information of impugned sale to Ghulam Yaseen PW-2. The pre-emptor was also failed to ask any question regarding to establish the visit of Ghulam Yaseen PW-2 to the office of said Patwari DW-2 on the relevant day i.e. 22.11.2006 which both the PW-1 and PW-2 have stated regarding the source of knowledge about the impugned sale. It was the primary duty of the pre-emptor to establish the fact that when and by whom and how he came to know about the knowledge of the impugned sale, otherwise it will be presumed that the version of the appellant was correct that since the mutation was sanctioned in Jalsa Aam and the pre-emptor was having the knowledge of the said sale and according to law immediately after the sale he was bound to agitate his jumping demand regarding his intention to pre-empt the land. The pre-emptor could not establish his version, that PW Ghulam Yaseen visited the office of Patwari on 22.11.2006. Although there is no as such contradiction in the statement of the PWs regarding the date and place mentioned when the pre-emptor made his jumping demand but the spirt of law is that pre-emptor has to prove that he attained the knowledge for the first time on that very day. But through the evidence, the pre- emptor was failed to establish his version regarding attaining of knowledge on 22.11.2006. There are some other contradictions in the statements of PWs regarding mentioning of time which have been ignored by the learned Additional District Judge while discussing the evidence of the PWs regarding Talb-e-Muwathibat. The pre-emptor was badly failed to prove that he fulfilled the condition of Talb-e-Muwathibat in accordance with the provision of Section 13 of the Punjab Pre- emption Act, 1991 as required.
11. The condition of Talb-i-Ishhad was also not proved as required by law. It was mandatory to mention the names of witnesses of notices Talb-i-Ishhad in the plaint but same is not mentioned.
Rule 2 of Order VI of Code of Civil Procedure 1908 is very clear which is reproduce as under
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
The wisdom maintained in the above-mentioned statuary provision is that all material facts be brought through the pleadings. The PWs-1, 2 and 31 had never stated regarding the receiving of notices to the appellant. Only PW-6 has stated that one person signed the receipts. PW-6 did not name any person who signed the receipts. The receipts were although brought on record but this cannot be considered as the proof that Talb-i-lsshad was made in accordance with the law. None of the witnesses stated that those notices/envelopes were received by the appellants; the statement of PW-6 only reflects that one person received the said envelope. The requirement of sending notice in writing is followed by a rider i.e. "under registered cover acknowledgment due" which signifies that intention of law is not merely a formal notice on the part of pre-emptor conveying his intention to pre-empt but a notice served on addressee to apprise him about his intention to pre-empt. If mere "sending of notice" was enough, it would make the expression "acknowledgment due" redundant. Service of addressee, kw prescribed in law, therefore, is imperative. If acknowledgement card carries an endorsement of "refusal" or "not accepted" a presumption of service would arise unless rebutted. It was the duty of the pre-emptor to have produced the postman through whom the notice was allegedly served upon the vendee to prove that the notices were actually sent to him at the right address and he received it or refused to receive it; and that in order to establish Talb-i-Isshad the pre-emptor has to prove that notice was sent to the vendee through registered post acknowledgment due card and its acknowledgment receipt was received by the pre-emptor after its service on the vendee. Only sending of the notices through registered envelope is not sufficient, the intention of law is to ensure that those were sent to the proper address and "served" or "not served" report will show that the condition of Talb-i- Ishhad was fulfilled or not. Reliance is placed on case titled "Khan Afsar v. Afsar Khan and other"
(2015 SCMR 311). Where it was held that when notice of Talb-i-lshhad is not received by the vendee and was received by some other person and receipt thereof was denied by the vendee then the requirement of notice Talb-i-lshhad provided under section 13(3) of the Punjab Pre-emption Act, 1991 would not be fulfilled.
12. So far as the versions of the respondents is concerned that minor discrepancies are ignorable.
These are not minor contradictions as has been mentioned above that neither the pre-emptor proved his version that he came to know about the sale on the date mentioned nor the PWs were consistent regarding proving of fact that the Talb-e-Muwathibat was accordingly made by the pre-emptor. Furthermore, notices of Talb-i-Ishhad were not proved. The learned Civil Judge has rightly appreciated the evidence on this point. The respondent could not prove that he fulfilled the condition of Talb-i-Ishhad as required by law. The counsel for the respondent placed reliance on the following citations that minor contradictions will not effect the case of the respondents. He placed reliance on cases titled "Mst. Kalsoom Begum v. Rizwan Shah and others" (2020 SCMR 2029), "Liaqat Ali and others v. Safdar Khan" (2020 SCMR 863) and "Daud Shah v. Waris Shah and others" (2014 SCMR 852). All these citations are regarding the contradiction in the statements of the PWs on the issue of Talabs but every case has its own merits. In these citations, altogether facts are different. Similarly, in the case reported as "Muhammad Afzal and 2 others v. Mst.
Marrayam Bibi" (2007 CLC 20) produced by learned counsel for the respondents, a different proposition has been discussed where it was held that the pre-emptor lady was illiterate women living in a remote area and her witnesses were also uneducated, therefore, keeping In view the stance of lady and her witnesses as illiterate certain contradictions were ignored but this cannot be made the principle while considering the contradictions and statements of the PWs regarding the point of Talab which is most essential part of pre-emption suit. Regarding the preferential right over the suit land, the claim of the respondents was that they were the Shareek Khata having the adjacent land to the suit land whereas the appellants have no such right. The learned Additional District Judge while relying on the document Ex.P-13 and P-14 observed that the appellants were not the owners of the property and were having no preferential right. When confronted to the learned counsel for the respondents regarding those decisions of the court, counsel was unable to reply the sante. Ex.P-13 is a suit for declaration which was filed on 06.01.1992 by Muhammad Hafiz and others v. Laal and others where at serial No.22 or the respondents Alam Sher and at serial No.30 Fatah Sher were also impleaded in the suit. For the decision Ex.P-14 was overlooked by the learned Additional District Judge where in the decision dated 06-01-1992 the following order was made. I reproduce the same as under:- "the suit stands dismissed as withdrawn to the extent of defendant No.22 Alam Sher (appellant) and defendant No.30 Fateh Sher"
This order was assailed before the learned Additional District Judge which also met the same fate and up to this court the situation remained the same. This particular aspect had not been properly appreciated by the learned Additional District Judge and had wrongly interpreted those documents and on the basis of same non-suited the appellants. So, the preferential right of the pre-emptor respondent is not established as the appellants have also the equal right regarding the land in question. The document (copy of Jamabandi) shows that the appellants were owner in the joint Khata. Regarding the price of land, the learned Additional District Judge has not discussed anything, meaning thereby the judgment on that issue was not up-set by the 1st appellant court.
Today the counsel for the respondents has not pressed this issue. Even otherwise the mutation has the presumption of the truth unless not proved otherwise.
13. The nutshell of the discussion is that the learned Additional District Judge while passing the impugned judgment has not rightly concluded the issues on the basis of the available record and the evidence has not been properly appreciated. Some of the documents and the statements have not only been misinterpreted but also overlooked by the learned Additional District Judge. So, the issue regarding Talabs was not proved by the pre-emptor. I have perused the judgment passed by learned trial court which is based on well settled principle of law and findings of the said court do not suffer from any illegality, misreading or non-reading of evidence. Thus, instant appeal is accepted and judgment and decree dated 12.05.2012 passed by learned Additional District Judge is set-aside, whereas, the judgment and decree dated 26.07.2011 passed by learned trial court is hereby maintained. Resultantly, the suit filed by the respondents/plaintiffs is hereby dismissed. No order as to costs.