Muhammad Nawaz, etc vs Muhammad Waris

Hassan Nawaz Makhdoom, J. This revision petition assails the judgment and decree dated 07.08.2013 ("impugned judgment") passed by the Additional District Judge, Shorekot ("Appellate Court") whereby Trial Court's judgment and decree dated 18.09.2012 ("Trial Court's Judgment") passed by the Civil Judge 1st Class, Shorkot ("Trial Court") was reversed.

2. This civil revision arises out of a suit for possession through pre-emption ("the suit") under the Punjab Pre-Emption Act, 1991("the Act").

Brief facts of the case are that Muhammad Waris ("respondent/plaintiff") filed the suit against Muhammad Nawaz and two others ("petitioners/defendants") of property measuring 2-Kanals, 04 Marlas, description whereof is given in paragraph-1 of the plaint. The contentions raised in the said suit was that Talib Hussain son of Zulfiqar was owner of the suit property, from whom the petitioners/defendants purchased the same through Mutation No.1333 dated 24.04.2007 ("Mutation") for consideration of Rs.65000/-. However, in order to defeat the preemptive right of the respondent/plaintiff an inflated sale price of Rs.100,000/- was recorded in the Mutation, which was kept in secret by the petitioners/defendants. The knowledge of the sale was gathered by the respondent/plaintiff on 06.08.2007 at 9:00 a.m. in presence of Gada Hussain son of Muhammad Nawaz Hussain and Ch. Nazir Ahmed son of Barkat Ali, who were present at Dera situated at Chahianwala where Ghulam Shabir son of Sultan came and told the respondent/plaintiff that the petitioners/defendants had purchased the suit property. The respondent/plaintiff had immediately announced his right of pre-emption and made Talb-i-Muwathibat. Thereafter, the respondent/plaintiff made notice of the Talab-i-Ishhad through registered post to the petitioners/defendants, claiming to have a superior right of pre-emption and upon no reply to the same, the respondent/plaintiff filed the suit. The suit was met by a contesting written statement filed by the petitioners/defendants. Upon divergent pleadings, nine issues were framed and the parties were put to trial. The material and most significant issue for determination of the instant revision petition is: II) Whether the plaintiff has fulfilled the prerequisite of Talbs in accordance with Islamic law of pre- emption? OPP.

3. The parties led their respective evidence in trial whereafter the Trial Court dismissed the suit of the respondent/plaintiff vide judgment dated 18.09.2012. The respondent/plaintiff, being aggrieved by the above judgment, preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 ("CPC"). The said appeal was allowed by the Appellate Court vide impugned judgment dated 07.08.2013. As a result, the suit filed by the respondent/plaintiff against the petitioners/defendants was decreed. Hence, the instant revision petition.

4. Learned counsel for the petitioners/defendants submitted that the respondent/plaintiff has completely failed to prove the Talbs in accordance with Section 13 of the Act. Further submitted that the Trial Court vide judgment dated 18.09.2012 has rightly appreciated the facts, circumstances and evidence of the case and thereby has correctly reached at the conclusion that the respondent/plaintiff failed to prove the required Talbs. In addition, it is submitted that the Appellate Court, while passing the impugned judgment dated 07.08.2013, has fell in complete error of fact and of law, which led the Appellate Court to pass the judgment impugned herein. It is reiterated on behalf of the petitioner that the Appellate Court has completely ignored the fact finding recorded by the Trial Court, relating to performance of Talbs as required under the law.

5. Conversely, learned counsel for the respondent/plaintiff has supported the judgment passed by the Appellate Court dated 07.08.2013. He added that the performance of Talbs, as required by the law, have clearly been established from the record and the contrary finding, as recorded by the Trial Court is nullity in the eye of law.

6. Arguments heard. Record perused.

7. It is a settled position of law that a pre-emptor must prove the essential ingredients for the exercise of such right in accordance with the provisions of Section 13 of the Act. It is also imperative that the performance of Talbs must be observed in true and complete letter and spirit. Such right of pre-emption is strictissimi juris (strict rule of law) and even a slightest non-adherence or deviation from the formalities required by law prevents its accrual^[1]. At this juncture, it is necessary for this Court to examine and ascertain whether the Talbs, as mandated under Section 13 of the Act, have been made.

As regards, the first Talb i.e. Talb-i-Muwathibat, statement of pre-emptor as PW-2 (Muhammad Waris) is relevant wherein he admitted in cross examination that he had gained knowledge of the sale after filing of the suit. In the next three lines, he also admitted that he had filed another suit for pre-emption against the petitioners/defendants. The above said stance of the respondent/plaintiff as to knowledge is corroborated by the informer, who appeared as PW-3. According to the statement of PW-3, the knowledge about the sale was gained about 4.5 years ago. This statement was made by PW-3 on 16.02.2012. Thus, if time is calculated from the date of statement, it comes around 16.07.2007, which furnishes a ground to believe that no meeting was held for Talb-i- Muwathibat and it was not performed. As per Exh-P7, possession of the suit property was delivered on the date of sale, which is a notice to public at large^[2]. Hence, the pre-emptor has, for all practical purposes, gained the knowledge immediately but did not make a jumping demand. Such delay is fatal to a successful claim of pre-emption^[3].

Now adverting to Talb-i-Ishhad, with respect to which the position of law is well settled to the effect that if the date of Talb-iIshhad and names of witnesses are not mentioned in the plaint, it is fatal for a suit of pre-emption^[4]. The record also reflects that no date of Talb-i-Ishhad is mentioned in the plaint, which makes it uncertain whether the same was made within two weeks as required under Section 13(3) of the Act. It is reiterated that non-mentioning of exact time of notice of Talb-i- Ishhad in the plaint is fatal for the cause of the respondent/plaintiff. As borne out from the evidence, the fulfillment of condition of Talb-i-Ishhad, by way of service of notices, gets sketchy, inter-alia, in terms of statement made by PW-1 (postman). It is noteworthy that Talb-i-Ishhad is to be established by way of a solid piece of evidence led by the respondent/plaintiff. A careful examination of the plaint does not disclose any details regarding Talb-i-Ishhad with respect to its performance. This fact is also fatal to the case of the respondent/plaintiff. Admittedly, the petitioners/defendants No.2 and 3 are minors. The statement of postman, who appeared as PW-1 did not mention as to where the service was made on the said minors or it was made on anyone else on their behalf, nor is there any endorsement of refusal on the envelope or the acknowledgment due, as reflected by Ex.P1 to Ex.P6. It was necessary for the service to be effected on the parties concerned^[5]. As per statement of PW-2 (respondent/plaintiff), available on record, he admitted that the original notices were not sent. According to the statements of PW-2, 3 and 4, the notices were written by hand.

After having considered the defects in discharge of Talb-i-Muwathibat and Talb-i-Ishhad, now it is important to see the effect of defective performance of Talb-e-Ishhad. Talb-i-Ishhad or demand by establishing evidence means calling of two witnesses by pre-emptor to attest his making of the first demand/Talb-i-Muwathibat in order to strengthen his claim of pre-emption. It is mandatory upon the pre-emptor i.e. respondent/ plaintiff, to have stated the names of witnesses for Talb-i- Ishhad in the plaint and then prove their attestation by producing them in the Court. Upon careful perusal of the plaint, it appears that no such disclosure has been made by the respondent/plaintiff of the names of witnesses of Talb-i-Ishhad. This omission is again fatal to the claim of the respondent/plaintiff^[6].

8. In view of the above discussion, it is concluded that the respondent/plaintiff (pre-emptor) has failed to prove performance of the essential conditions attached to the exercise of right of preemption. As a result, his claim of pre-emption cannot hold field for not having qualified the mandate of law under Section 13 of the Act, in terms of making of Talbs. Consequently, this civil revision is allowed and impugned judgment and decree dated 07.08.2013 passed by the Appellate Court is set aside. No order as to costs.