IHSAN-UL-HAQ CHAUDHARY, J.- The relevant facts leading to this appeal are that the respondents purchased land measuring 154 kanals 7 marlas violated in Mauza Gobind Pur Balv an. Tehsil and District, Sahiwal, for a total consideration ot Rs. 12.54.094/ enroughs registered sale deed dated 20.8.1991 Exh. D.2. The appellants find a suit on 17/l 1.1991 to pre-empt this sale. They claimed that they have superior right of pre-emption being co-sharers, having common \ passage and common water course with the vendors. The respondents appeared and resisted the suit on legal as well as factual plans. The trial Court accordingly framed following issues:-
(1) Whether the plaintiffs have got superior right of pre-emption qua the vendees? OPP
(2) Whether the ostensible sale price was find in good faith or actually paid? OPP
(3) What is the market value of the suit property ? OPP
(4) Whether the suit land has been pre-empted for Zaroorat or to avoid Zarar? OPP
(5) Whether the prerequisites of demand Talabs .Had been made in accordance with law? OPP
(6) Whether the plaintiffs by their conduct had waived their right of preemptions'? OPD
(7) Whether the vendees have incurred any other expenses apart from the sale price on the registration of sale, if so, how much and with what effect ? OPD
(8) Whether the notice required u/S. 31 of Punjab Pre-emption Act was not issued and what is the effect of the same on the vendees? OP Parties.
(9) Relief.
The appellants in order to prove their claim examined Khushi Muhammad as PW. j I. Kamal Khan as PW. 2, Munir Ahmad, Patwari as PW. 3, Muhammad Amin as / PW. 4 and Lakha as PW. 5 while appellant No. 4 appeared as PW.
6. On the other t hand respondent No. 3 appeared as DW.I. The parties also produced documentary \ evidence. The trial Court after hearing the arguments held that the appellants have a superior right of prp-emption while the price of Rs. 12,54,094/- was find in good faith and actually paid but the other main issue No. 5 as to the Talabs was decided against the appellants and as a result thereof the suit was dismissed- vide judgment , and decree dated 21.12.1993. Hence present appeal, which was admitted to hearing and notices were issued to the respondents, who have appeared and contested the appeal.
2. The learned counsel for the appellants argued that on issue 2 there was no evidence except statement of respondent No. 3, therefore, trial Court wrongly held that issue has been proved while in respect of issue 5 it was argued that Talb-i Muwathibat and Talb-i-lshhad were proved by the statements of PW.1. PW.2 PW 4. PW.5 and PW.6. It is added that u/S. 13(3) of the Punjab Pre-emption Act; 1001 (hereinafter to be referred, to as Act of 1991), it was the duty of the plaintiff It send a notice under registered cover, acknowledgement due but its service was tip their responsibility. It is added that there is a presumption that notices sent throng! Registered post reached their destination. It is argued that the appellants came to know of the sale in favour of the respondents on 28.9.1991 and the Talabs wes; proved by the evidence of PW. 4 and PW. 5 coupled with the statement of appellant No. 4 (PW. 6). Therefore, the finding of the trial Court be set aside and this sappca be accepted. < 3. On the other hand, the learned counsel for the respondents submitted that Before addressing arguments on merits he would make some introduetory submissions as to the scope of Act IX of 1991 in pre-emption matters. The submission in brief was that with the decisions of the Federal Shariat Court Supreme Court and Shariat Appellate Bench of the Supreme Court the Pre-emption Act. 1913 was scraped and instead the Punjab Pre-emption Ordinance. 1990 was promulgated on 28.3.1990 which paved the way of the Punjab Pre-emption Act 1991 and that the Courts while interpreting and applying the provisions of. The Act of 1991 shall seek guidance from the Holy Quran and Sunnah while the matter ancillary and akin to the provisions of this Act which are not specifically coverd by the provisions of the Act of 1991 shall be decided in accordance with Shariah.
4. On merits, it was argued that the plaintiffs in order to succeed in a suite for pre-emption shall have to show that three demands (Talabs) i.e.-
(a) tlab-i-muwathibat:
(b) talb-i-ishhad: and '
(c) talb-i-khusumat were made strictly in accordance with law. It was argued that the right of pre emption is a feeble right being an exception to the general rule of freedom of agreement. Therefore, the recruitments are to be complied like rituals. It was addet' iliai the witnesses of Talab-i-Ishltad unlike witnesses in any other. Matter are to be selected by the plaintiff and they should be truthful.
3. It was argued that the Talab-i-Muwathibat was not made promptly tis is clear from the statements of PWs specially PW.
4. While the notice for Talab-i- Islihad was attested by PW. 4 and PW.
5. Who have been proved not truthful; witnesses. Besides that notices were . .Served in accordance with law. It syrtis added that Talab-i-Ishltad was not made in ordnance with the provisions of S. 13. Therefore. It was not Talab at all and the sia was rightly dismissed by the trial Court. In this behalf, the learned counsel has referred to the judgments reported tis k Muhammad Aziz. v. Haider Ali Shah (PLD 1991 S.C. 1980) Mst. Safi a Begum v. )Ibrahim (PLD 1989 S.C.
314), Samundar Khan v. Ali Zaman (PLD 19X4 Peshawar l2), Muhammad. Ashraf v. Muhammad Tahir (1990 MLD 2399). Monajal Huq v. Shafiullah (PLD 1964 Dacca 640). Muhammad Ismali Qureshi v.
''Govt, of N.W.F.P. (1992 PSC 75). Shamsuddm v. Allauddin (AIR 1432 Allahabad 138). Aliman Begum v.
Ali Hasan (AIR 1923 Allahabad 355). Ghulam ./Hani v. Ghulam Muhammad (1991 SCMR 2001). Rujjub Ali Chopedar r. Clmndi fhurii Bhadra (17 Cal. 546), Anwar Ali v. Shah Nawaz (PLD 1989 Karachi 246).
Zufar Ali r, Zainul Abidin (1992 SCMR 1886), Pachumuddin Nayek v. Abdul Ghajfur (AIR 1937 Cal. 283).
Medni Proshad v. Suresh Chandra (AIR (30) 194.3 Pama 96). Chandar Sekhar Tiwari v. Ram Prasad (AIR (37) 1950 Patna 93). Muhammad Ran/ Khail v. Mir Sahib Khan (1992 MLD 1), Muhammad Amin v.
Gulab (799. ( I.C 9H). Said Muhammad Shah Ghulam Hussain (1993 CLC 105*). Abdul Ghafar \. Malik Muhammad (1993 CLC 2437) and Suba Khan v. Muhammad Bashir (1993 MLD 1958).
6. The next Submission was that common access and means of irrigation referred to private way.
Road and watercourse jointly owned by the vendin' and the pre-emptor. It did not include official/public roads and watercourses, in this behail, die learned counsel has referred to the judgments reported as hnambakhsh Shall v. Muhammad Ali Khan (AIR (33) 1946 Sindh 55), Abdul Rahman v. Mqliammad Ismail (AIR (34) 1947 Allahabad 85) and Pir Ghulam v. Noor Zaman (1979 SCMR 360).
7. The learned counsel for the appellants while replying to the arguments advanced on behalf of the respondents submitted that the oral evidence produced to prove Talab-i-Ishhad by the appellants was superfluous and the requirement ol the statute .Was fully complied with by the appellant by sending notices through registered post, acknowledgment due. It is added that the silence of appellant No. 1 after securing copy of sale deed Ex. D2 would at the most defeat his right and will not affect the. Right and status of others. The arguments were concluded with the submission that in such cases the plaintiffs having no right could be deleted as plaintiff. In this behalf, the learned counsel referred to the case of Mehr Allah Dina and another v. Muhammad Ali and another (PLD 1972 S.C. 59).
8. It was clarified that the arguments advanced on behalf of the respondents that the common access and means of irrigation referred only to the jointly owned by the vendor and the pre- emptor. Is misconceived and clearly against the text of S. 36 of the Act of 1991.
9. The arguments were summed up with the submission that the superior tight of pre-emption was proved by the appellants through unimpeachable documentary evidence and same has rightly been decided by the trial Court in favour of the appellants.
10. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of law 1 and precedents. The appellants have challenged the findings of the trial Court on 1 issue Nos; 2 and 5 only. The onus of issue No. 5 was on the appellants and in order > to prove it they have examined PWs 1 to 6 and produced postal receipts Exs'. PI to P3, notices Exs. P4, P7, P10, envelopes Exs. P5. P8, acknowledgement due , receipts Exs. P6, P9, and P.I while respondent No. 3 has appeared as DW1 and produced the application for supply of copy Ex. D1 and sale deed dated :19.8.1991 as Ex. D2.
11. Now we proceed to decide whether Talab Muwathibat had been proved in the case for not? The sale deed in this appeal is dated 20.8.1991. A certified copy which has been placed on the record as Ex. D2. According to the appellants they learnt about the sale from Lakha PW. 5, who disclosed the factum of sale in the presence of PWs. 4 5 and 6. The statement of PW. 4 was recorded on -1.4.1993.
He stated that they learnt about the sale about 1 Vi year back and that the remaining land has been sold while Gulzar Khan, Akhtar and Shuja Khan were sitting there when Ikram-ud-Din appellant said that he had to file a suit for preemption. The witness in the cross-examination said that his happened at about 10.11 a.m. While in para 5 of the plaint the appellants have pleaded that they came to know of the factum of sale on 28th September, 1991 at Asarwela and to the same effect is the statement of Shuja-ud-Din Khan appellant as PW. 6 as well as in the notice. Exs. P4, P7 and P10.
12. On the other hand, respondent No. 3 as DW1 stated that the appellants were fully aware of the sale. They applied for the copy of the sale deed on 1.9.1991 as is clear from the application from the supply of copy Ex. D1. The copy of the sale deed Ex. D2 was supplied to them on 16.9.1991. Therefore, the version put forward in the plaint and tried to be proved through the evidence of PWs 4. 5 and 6 is a mere concoction. The appellant Shuja-ud-Din Khan when appeared as PW. 6 was cross- examined as to Exs. D1 and D2. He admitted the signatures of Ikram-ud- Din appellant on the application form Ex. D1. He also admitted that the Sub- Registrar had allowed their application for supply of certified copy on 12.9.1991 and also that the copy of the sale deed Ex. D2 was supplied to Ikratn -ud-Din appellant on 16.9.1991 and it is the same copy, which was placed on the record and subsequently exhibited as Ex. D2. This completely knocks out the bottom of the plea of the appellants that they came to know of the sale on 28.9.1991 and they promptly made Talab-i- Muwathibat. The requirement of Talab-i-Muwathibat is that it has to be prompt, immediate and forthwith. The learned counsel for the respondents has referred to the judgment reported as Monajal Huq v. Shafiullah (supra). The relevant portion of the judgment reads as under:- .C'9,- The cases reported in ILR 1 All. 283, ILR 1 'Cal. 383 and 39 1A 101 also support the view that talabe-mowasibat should be made as soon as the fact of sale is known to-the claimant otherwise the right is lost. In the case of Ah Muhammad v. Taj Muhammad (ILR 1 All. 283), it was been stated.
"The right of pre-emption is not a strong right and it appears to us ' that anyone claiming it should be held bound by the conditions of the Muhammadan Law. And should promptly assert his right of pre-emption by the immediate demand. It is not surely the duty of the Courts to enlarge the conditions under which so inconvenient and sometimes oppressive right can be asserted.
The facts in the case of Jorfan Khan v. Jabbar Mia (ILR 10 Cal. 383) were that the plaintiff on hearing of the sale from his wife entered his house, opened his chest, look money, called the witnesses, proceeded to the premises that subject of the sale and made the demand for pre-emption. It was held that plaintiff was not entitled to pre-emption as he did not make the demand or perform the ceremony of talab-e- mowasibat immediately upon hearing of the sale. ****************** ******************
13. Mr. Amirul Islam Chowdhury, on behalf of the respondent has taken the position here that demands were made actually on the 8th Aswar. 1364 B.S. Corresponding to 23.6.1957. But this cannot improve the position of the plaintiff as the fact remains that talab-e-mowasibat was nor made instantly at the registration office on hearing of the sale.
In this judgment passage of Hedaya, Second Edition, page 550 has been quoted according to which if the. Shafee receives a letter, which either in the beginning or the middle, apprises him of the sale, and he read it on to the end. His right of Shaffa would be extinguished by the delay in making Talab-i-Muwathibat. In the present case, it is clear beyond any shadow of doubt that the appellants came to know about the factum of sale before first of September 1991 when they made the application for certified copy of the sale deed. As per their own showing, they did not make Talab-i-Muwathibat till 28th September, 1991. Even on the said date, according to PWA, the factum of sale was disclosed by PW. 5 at 10 or 1! a.m. While the Talab was made as per para 5 of the plaint as well as in the notices dated 5.10.1991 and the statement of PW. 6 (appellant No. 4). At Asarwela, which should he around 5.GO p.m. In September. This way, even if, for the sake of arguments, the version of the appellant is accepted, still the Talab-i-Muwathibat was not made, promptly and immediately. The right was lost by delay In claiming it.
13. Now coming to Talab-i-Ishhad. It is worthwhile, before proceeding any further, to refer to subsection (3) of S. 13 of Act. 1991. Which reads as under:- "Where a pre-emptor has made talb-i-mitwathibat under subsection (2 r. He shall, as Soem thereafter as possible but not later than two weeks from the date of knowledge made talb-i- ishhud by sending a notice is writing attested by two truthful .Witnesses under registered cover acknowledgment due. To the vendee confirming his intention to exercise the right of pre-emption: Provided that in areas where owing to lack of port office facilities it is not possible for the pre- emptor to give registered notice, he max make talb-i-ishhad in the presence of two truthful witnesses."
It is clear from the above provision that the general rule is that Talab-i-Ishhad should be made through a notice sent through registered post, acknowledgment due and its ingredients are:
(1) It should be made through notice in writing:
(2) It should be attested by two truthful witnesses, who should be invoked to attest the claim:
(3) Talab-i-Muwathibat should be reiterated;
(4) it should be made soon after Talab-i-Muwathibat but not later than two weeks from the date of knowledge: and
(5) the notice should be addressed at the correct address and sent through registered post acknowledgment due.
14. The notices, copies of which are Ex. P4. Ex. P7 and Ex. P10, were in x\riling and sent through registered post acknowledgement due but all others important ingredients essentials, pre- requisites necessary to validate this 'Talb' are completely lacking. We would now deal with the same by one.
15. It is clear from Ex. D1 and Ex. D2 that the appellants came to know of the sale at least on lst of September, 1991 when they made application Ex. D1 because in the application form they were not only supposed to give all the details ol the sale deed including the date of registration etc., but.
They, in tact, incorporated all the particulars of sale deed Ex. D2. While the notices of Talab-i- lshhad are dated 5th October, 1991. The same were, therefore, clearly out of time and there is valid Talab-i-Ishhad either. We are fortified in our view by the judgments in the cases reported as Muhammad Rauf Khan v. Mir Sahib Khan (supra), Mst. Safia Begum v. Ibrahim and for others (supra) and Sttba Khan r. Muhammad Bashir (supra).
I h- Now coming to the addresses of the respondents on which the notices were sent. The learned counsel for the appellant argued that as to the notices were sent through registered post acknowledgment due there was a presumption to the effect that the same, reached their destination. On the other hand, the learned counsel for the respondents, with reference to S. 26 of the General Clauses Act. Id56. Argued that presumption is only available when it is proved that the notices were properly' addressed. Although the Adress of respondent No. 3 in the notice Lx. P7 was given of Chak No. 87-A/6-R' yet on the envelope Ex. P8 his address was written as Chak No. 82-A/6- R'. This is besides the admitted position that the said respondent was residing at Lahore in his official residence and the fact that Clink No. 87-A/6-R consists of for Mohallas (Abadies). The land and residence of the respondents are situated in the locality known is 'Chubareywali Abadi.'
Therefore, at least to the extent of respondent No. 3 there was no notice of Talab-i- Ishhad as held in the case of Aliman Begum (supra).
17. Now coming to the other ingredients of subsection (3) of S. 13 that it should be attested by two truthful Witnesses. The notices are witnessed by Muhammad Amin. Lakha and Muhammad Aqeel.
The same have not been attested by any one. Even if this is treated as to the chemical and the witnesses are treated tis the persons attesting the notices then out of them Muhammad Amin and Lakha were examined as PW.4 and Pw. 5.
18. The plea of the appellant that they came to know at the sale on 28th September stood falsified by Exs. D.I and D2 which are not only official documents issued in the normal course of business but admitted as correct by appellant No. 4 as PW.
6. This way PWs 4 and 5 had. Tried to prove a false plea taken by the appellant. The witnesses who faithfully supported the false plea cannot be by any standard called as truthful. These documents are more than sufficient to prove their 'falsified because persons may tell lie but not the documents. This is not all. Pws 4. ,3 and 6 have not only contradicted each other on every material factor but PWs 4 and 5 also admitted having made wrong statements. The relevant portions of their statements read as under:- Therefore, we have no hesitation to hold that they are not truthful witnesses at all.
19. The learned counsel for the respondents with reference to the evidence, hoth oral and documentary, demonstrated that the statements of PW. 4 and PW. 5 are pack of lies The learned counsel for the appellants took a somersault and urged thai oral evidence of Talab-i-Ishhad is superfluous and was not required in, face of service of the registered notice. The learned counsel for the appellants while raising this argument over looked that it is the last nail in the coffin of the credibility of witnesses of Talabs. It not only rendered the notices invalid but it also disproved the Talb-i-Muwathibat tried to be proved by the same set of witnesses. This way the appellants have failed to prove Talb-i-Ishhad through notice as well as orally, therefore, their right of pre-emption extinguished. We are fortified in our view by the judgments in cases of Muhammad Rauf Khan and Muhammad Amin and 3 others (supra). This is beside the legal position that the. Appellants could not invoke the proviso to subsection (3) of S. 13 of the Act of 1991.
20. The sum and substance of the above discussion is that the appellants have failed to fulfil main conditions of valid Talb-t-ishhad. Therefore, enforceable right of pre-emption did not come into being. Conversely speaking the right of preemption did not mature on account of their failure to make statutory Talabs in the prescribed manner.
21. In the end it was argued that the securing of copy of the sale deed would defeat the right of Ikram-ud-Din appellant alone and at the best his name should be struck of from the array of the appellants. Lakha PW. 5 has clearly suited that the appellants had received copy of the sale deed when he alongwith the appellants went to the vendees. The relevant portion reads as under:- While Shuja-ud-Din PW. 6 admitted that it is the same copy which was appended by the appellants with the plaint. Even otherwise it is not possible to believe that Ikram-ud-Din secured copy of the sale deed for himself alone and kept it a secret In others.
22. Now coming to issue No. 2. The learned counsel for the appellants argued that there is no evidence except solitary statement of DW.
1. The learned counsel for the respondents pointed out that stance of the appellants is not correct. In fact, appellant No. 4 as PW. 6 has categorically stated that the land was sold at the rate of Rs. 65,000/- per acre. His statement reads as under:- This was sufficient by itself to decide issue No. 2 in favour of the respondents.
23. The learned counsel for the respondents half-heartedly tried to argue that. Issue No. 1 as to superior right was not correct decided as common source of irrigation and common passage meant the private source of irrigation and passage used by the vendor and the pre-emptor. This is against the plain reading of S. 31 of the Act of 1991. Therefore, there is nothing wrong with the findings of the learned trial Court on this issue.
24. The upshot of the above discussion is that this appeal fails and is dismissed with costs.