JUDGMENT GUL ZARIN KIANI, J.- Second Civil appeal from concurrent Judgment of learned Additional District Judge, Faisalabad dated 25.1.1994 arose out of a suit instituted by the appellant to pre-empt sale of land measuring 14 kanals, 3 mar las situated in Chak NO.102/RB of Tehsil Jaranwala in District Faisalabad by Ismail son of Muhammad Sharif to Ashiq Ali respondent on 9.9.1991. Pre-emption suit was: dismissed on 13.2.1993, and appeal from the decision failed on 25.1.1994 in the court below.
2. Brief facts giving rise to the second appeal were these Ismail was owner of 14 kanals, 3 marlas of agricultural land in Chak No. 102/RB of tehsil Jaranwala in District Faisalabad. By mutation No. 714 sanctioned on 9.9.1991, he sold his above land to Ashiq Ali for a sum of Rs. 80,000/-. Muhammad Sarwar appellant claimed pre-emption in respect of this sale and instituted a suit for preemption for it on 7.^.1992 in the Civil Court at Sub-Division, Jaranwala. Preemption was claimed on grounds of co-ownership, contiguity Of the land owned by the plaintiff and common user of a water-course.
Para 2 of the plaint averred performance of first. It did not contain reference to the performance of second Talab i.e. Talb-i-Ishad by despatch of a notice in writing through a prescribed mode confirming intention to exercise the pre-emption. The plaintiff also did not aver the date of actual knowledge of the sale of land sought to be pre-emoted.
3. Upon being served in the suit, respondent entered deface and submitted the written statement by which he controverted the averments contained in the plaint. Apart from the denial of averments in the plaint on merits, number of preliminary objections were raised in defence, such as the suit was barred by limitation; plaintiff had no cause of action; legal formalities for exercise of pre-emption were not fulfilled and the suit was liable to fail on this ground; the object behind the pre-emption was mere greed and the exercise of it was not bona i.e; notice for Talb-i-Ishad was not given to the defendant and the omission was vital to the pre-emption and lastly the defendant had purchased the land in dispute for a sum of Rs. 1,20,000/- and the actual sale price was less- stated for saving the allied expenses. It was also averred that a sum of Rs. 15,000/- was spent in connection with the attestation of sale mutation.
'4. On 12.3.1992, the trial Court settled following issues for determination:-
1. Whether the suit is time barred? OPD.
2. Whether the plaintiff has no cause of action? OPD.
3. Whether the plaintiff has not fulfilled the requirements of Talabs in accordance with Islamic Law?
OPD.
4. Whether the defendant has incurred the incidental charges?OPD.
5. Whether the suit has not been valued for the purposes of Court- i.e?OPD.
6. Whether the plaintiff has superior right of pre-emption against the defendant?OPP.
7. Whether the ostensible) sale price of Rs.80,000/- has been fixed in good faith and actually been paid by the defendant?OPD.
12. If issue No.6(it should be issue No.7) has not been proved, what was the actual market value of the disputed land at the time of sale?OPD
13. Relief.
5. On 19.10.19922, the trial Court called upon the plaintiff to i.e statement of annual-net-profits accruing from the land and for making good the deficiency in accordance with it. On 26.10.1992, statement of annual net-profits was filed. Thereupon, plaintiff was called upon to correct the valuation statement in the plaint and pay Court in the sum of Rs.4,344.75 before 16.11.1992. On the appointed date, deficit Court was paid by the plaintiff. On 25.1.1993, parties' counsel did not press issues No. 1,5,7 and 8 leaving other issues for debate and decision between them.
6. Plaintiff gave evidence of three P.Ws., namely, Muhammad Shafiq- PW1, Ali Hussain-PW2, Bashir- PW4 and recorded his on statement in support of his case as P.W.3. PW.1 was branch Post-Master of Chak No. 102/RB, P. Ws.2 and 4 were attesting witnesses of notice-Exh.PS. In the testimony of PW.1, registered envelop-Exh. P.I was tendered in evidence. In addition to the above oral evidence, copy of sale mutation-Exh. P.3, copy of Jamabandi relating to khata No78-Exh. P.4, khata No. 88-Exh. P.5 were put in evidence and the same was concluded on 2.6.1992. Respondent gave evidence of six D.Ws. Namely, Ismail- D.W.2, Muhammad Abdullah-D.W.3, Taj Din-D.W.4, Liaqat Ali Patwari-D.W.5 and recorded his on statement in support of his defence as D. W.l. Copy of an extract from Rozenamcha dated 7.9.1991 was tendered in evidence as Exh. D.1. Upon scrutiny of the evidence given at the trial, it was found by the trial Court that the . Plaintiff had not the superior right of pre- emption; performance of necessary Talabs was not established by him and, therefore, dismissed his preemption suit on 13.2.1993. In appeal preferred by the plaintiff, it was held that Talb-i-Ishad was not performed and also elements of 'Zaroorat' or avoidance of 'Zarar' for exercise of pre- emption were not established. As far issue No. 6 relating to superior right of pre-emption, it was found in favour of the plaintiff. Decision of the first appeal eventually turned on non-performance of necessary Talabs for successful exenteritis of pre-emption by the appellant.
7. It is visible from the above narration of the events that second appeal raised the only point concerning the fulfilment of necessary Talabs by the appellant. Both the Courts below were agreed on non-observance of Talabs by the appellant and the proof giving in support of their performance was held insufficient for an affirmative finding on them. Observance of necessary Talabs for enforcement of right of pre-emption in Islamic law was a necessary concomitant of it and was also fundamental to its character. Unless the preliminary forms prescribed by Muhammadan Law regarding three Talabs i.e. Talb-i-Muwathibat, Talb-i-Ishad and Talb-i-Khusumat were performed in the prescribed mode, right of pre-emption was extinguished. Section 13 of the Punjab Pre- emption Act, 1991 codified demands of pre-emption. It reads:- Demand of pre-emption-(l) The right of pre-emption of a person shall be extinguished unless such person makes demands of preemption in the following orders, namely:-
(a) Talb-i-Muwathibat';
(b) Talb-i-Ishad'; and
(c) Talb-i-Khusumat '
Explanation.-(l) Talb-i-Muwathibat' means immediate demand by a preemptor in the sitting or meeting (majlis) in which he has come to know of the sale, declaring his intention to exercise the right of preemption.
Note.-Any words indicative of intention to exercise the right of preemption are sufficient.
(II) ' Talb-i-Ishad means demand by establishing evidence.
(III)' Talb-i-Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any source, he shall make Talbi-Muwathibat.
(3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2) , he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption Provided that in areas where owing to>lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i-Ishad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i- Muwathibat under subsection(2), and Talb-i-Ishad under subsection (3) he shall make Talb-i-Khusumat in the. Court of competent jurisdiction to enforce his right of pre-emption.
8. First two demands i.e. Talb-i-Muwathibat and Talb-i-Ishad must precede the institution of pre- emption suit. Last demand i.e Talb-i-Khusumat was fulfilled by the institution of suit itself. From reproduction of Section 13 of Punjab Pre-emption Act, 1991 above, it was evident that first demand i.e Talb-i- Muwathibat literally meant the "immediate demand" for pre-emption on receiving information of the sale. Talb-i-Ishad with least practicable delay in confirmation of Talb-i- Muwathibat followed it. The mode and manner of performance of these two Talbs was given in Section 13 of the Act itself. Crux of the matter for decision was, whether the plaintiff had performed the first two demands in accordance with requirements of law before taking the matter to the Court in the suit for preemption. PW-1 was a Branch Postmaster in Chak No 102/RB. He produced his record relating to registered letter No. 66. He deposed that the plaintiff had got the envelope registered in the name of Ashiq Ali through Taj Din. Envelope was Exht P.I. Registered letter was sent to Chak No. 102/RB. It was returned on 10.12.1991 to the PW. Who handed it over to Master Fazal Din which later was returned undelivered to the sender. His statement was recorded on 2.6.1992. Ali Hussain Pw-2 was resident of Chak No. 102/RB, Jaranwala. He deposed that Ismail had sold the land in dispute to defendant nine months ago and he obtained knowledge of it two/two and half months before. The witness further deposed that he along with Abdul Majid and Bashir Ahmad were sitting at the Dera of the plaintiff where he passed on the information about the sale of the land in dispute to him. Thereupon, the plaintiff immediately pronounced his intention to preempt the sale and a day after it, the witness along with Abdul Majid and the plaintiff went to the house of Taj Din where the defendant-vendee was also present In his presence, the plaintiff asked the defendant to transfer the land to him which he refused. Thereafter, plaintiff gave notice Exh. P-2 to the defendant and it was signed by the witness (Exht. P-2). In cross-examination, the witness deposed that he was not aware of the date of sale of the land. However, he got the information about the sale of the land in the month of Maghar. He further deposed that he got the information in the Tehsil Katchery of Jaranwala from the records of a village Patwari who lived near a Lari- Adda. The witness admitted that the defendant was not resident of Chak No. 102/RB and carried on his business at Faisalabad. However, he was in the house of Taj Din at the time when the plaintiff along with the witnesses visited the house of Taj Din in Chak No. 102/RB. The statement of PW-2 was also taken down on 22.6.199. PW-3 was the plaintiff himself. He deposed that Ismail had sold the land in dispute to the defendant and seven months before, he got the knowledge of the sale whereas the sale had taken place nine months before. He also deposed that Ali Hussain had informed him about the sale in presence of Abdul Majid and Bashir and a day after in their company, he want to the house of Taj Din where the defendant was also present and asked him for return of the land which he refused. He further deposed that he gave notice Exht. P-2 to the defendant. It was signed by him and also Ali Hussain. Bashir and Abdul Majid had appended their thumb impressions to it. PW-4 was Bashir. He deposed that Ali Hussain had informed the plaintiff about the sale of land in his presence at the Baithak of the plaintiff. Abdul Majid was also then present. A day after, the plaintiff along with the witnesses went to the house of defendant for claiming return of the land which he refused. Thereafter, a notice Exht. P-2 was sent to him. It was thumb marked by him. In cross-examination, the witness admitted that defendant was not resident of Chak No. 102/RB, Tehsil Jaranwala; his in-laws resided in the Chak and he came to them every week. The witness deposed that he had thumb marked Exht.P-2 in the village. He expressed his ignorance about the date of sale of the land but deposed that he came to know of the sale 6/7 months ago. He added that sale was made 8/9 months ago. The witness further deposed that Ali Hussain had informed about the sale two/two and half months before his putting thumb impressions on the notice Exht. P-22. Dw-1 is the defendant himself. He denied receipt of notice and also that the plaintiff in company of witnesses had visited him at the house of Taj Din for return of land purchased by him. DW-2 was Ismail son of Sharif. He was vendor of the land in dispute. Taj Din was his uncle. He admitted that defendant was son-in-law of Taj Din. He further admitted that defendant often visited his in laws. DW-3 was Muhammad Abdullah. He was Lambardar of Chak No. 102/RB. He deposed that Ismail had sold the land for Rs. 1,20,000/- in his presence. Dw-4 was Taj Din. Vendor was his nephew and the defendant was his son-in-law. He deposed that the sale was proclaimed On the loud-speaker in the Masjid and the plaintiff knew of the sale from the first day of it. In cross- examination, the witness denied that the plaintiff along with witnesses had visited his house for claiming return of the land from the plaintiff. He deposed that the whole village knew of the sale but he could not say this about the plaintiff. DW-5 was Liaqat Ali Patwari of Chak No. 102/RB. He proved correctness of report Exht. D-1. At the end, copy of Jamabandi Exht. D-2 was tendered in evidence and defence evidence was finally closed.
9. As observed above, it was imperative for the plaintiff to prove performance of Talb-i-Muwathibat and Talb-i-Ishad in the manner prescribed by law. Talb-i-Muwathibat was required to be made immediately in the sitting or meeting in which the person claiming pre-emption comes to know of the sale. In the case under consideration, there was no firm evidence about the plaintiff's knowledge of the sale. The factum of knowledge of pre-emptive sale was conspicuously absent in the plaint also. Parol evidence on it was shaky and wavering. It was unconvincing and mutually conflicting also. PWs. Gave different version of it It was common ground that defendant was not resident of Chak No. 102/RB. He carried on his business at Faisalabad. Taj Din was his father-in-law.
He resided in Chak No. 102/RB. The land in dispute was also situated in the same Chak. Taj Din cultivated it as a tenant prior to the sale and maintained his possession on it thereafter. Vendor was his nephew. Evidence about the presence of defendant in the house of Taj Din at the time of the alleged visit of the plaintiff in company of a few witnesses was not satisfaction and convincing.
Therefore, the evidence on record did not sufficiently prove the performance of Talb-i- Muwathibat immediately on gaining of the knowledge of sale by the plaintiff. As said above, evidence about knowledge of sale by the plaintiff was infirm and shaky. It was for him to positively assert and prove the precise time of knowledge of sale by him. He failed to discharge the burdon of proof that lay upon him in this behalf. Equally, the performance of second Talab i.e. Talb-i-Muwathibat was not satisfactorily proved in accordance with the requirement of Sub Section (3) of Section 13 of Punjab Pre-emption Act, 1991. Extract of Sub Section (3) was reproduced above. It says that where a pre- emptor has made Talb-i-Thibault, he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i-Ishad by sending a notice in writing attested-.By two truthful witnesses under registered cover acknowledgement due to the .Vendee confirming his intention to exercise the right of preemption. Outer limit! Of two weeks was linked with the date of knowledge of the sale. Within the maximum outer limit of two weeks' time fixed in Sub Section (3), after making Talb-i- Muwathibat, a preemptor was required to make Talb-i-Ishad, as soon thereafter as possible. To do a thing, 'as soon as possible' was interpreted to do it within a reasonable time, with an understanding to do it within the shortest possible time. See Stroud's Judicial Dictionary Fourth Edition (at page 195). In Words and Phrases Legally Defined Volume 1 (at page 121), it is stated that, To do a thing 'as soon as possible' means to do it within a reasonable time, with an undertaking to do it in the shortest practicable time". The effect of the phrase, 'as soon thereafter as possible' clearly connoted the performance of Talb-i-Ishad within the shortest possible practicable time in the given circumstances of the case. It hinted at avoidance of un- necessary Lastage of time and insisted on expedition of the event of Talb-i-Ishad. This was consistent with the object of law of preemption in Islam. In Mir Sahib Khan V. Muhammad Rauf Khan -1992 SCM R 1780, their lordships of the Supreme Court on the phrase, 'as soon as possible' observed, "If the provisions of subsection (3) was strictly interpreted, the preemptor had to give the notice of Talb-i-Ishad as soon as possible without wasting a single moment much less waiting for the last day of two weeks". In Zafar Ali V. Zainul Abidin and another -1992 SCM R 1886, above view was reiterated by their lordships of the Supreme Court in observing, The second Talb if made on 16.8.1988 on the day that the plaintiff claimed to have made the first Talb, would undoubtedly satisfy the statutory provision in section 13; namely, that Talb-i- Ishad' shall have to be made as soon after the first Talb, as is possible. It was possible for the petitioner if he made the first Talb on 16,8,1988 to send the required notice for Talb-i-Ishad' on the same day. There was no such hurdle as to take the case beyond the possibility visualised in the expression "as soon thereafter as possible".
10. Thus if the Talb-i-Muwathibat' is made on the said date i.e. 16th, it being not impossible to send the notice on the same day, the same if sent on 16.8.1988 and. If otherwise valid would have to be treated in accord with the requirement of section 13(3), vis-a-vis, the time of sending the notice.
11. But as held in Ghulam Jilani Vs. Ghulam Muhammad 1991 SCM R 2001 the second Talb, is by way of confirmation of the first Talb, if there is no first Talb there can be no confirmation thereof.
Accordingly, for this reason alone there was no valid second Talb. This reason is in addition to the other reasons regarding two truthful witnesses as well as their having attested the notice". Notice Exht. P-2 containing Talb-i-Ishad was dated 4.12.1991. It said that the knowledge about the sale was gained through Ali Hussain a week prior to it. If contents of Exht.P-2 Were taken on their fate value, it falsified the testimony of PWs. On the time of knowledge of sale. Though the notice Exht. P-2 was dated 4.12.1991, but the postal receipt for its despatch was not filed to show its actual date of posting. PW-1 also did not give the actual date of posting of the notice. Notice was addressed to the defendant through Taj Din son of Barkat Ali of Chak No.l02/RB. The envelop allegedly containing the notice carried the same address of the addressee. Even if time of gaining knowledge of the sale given in Exht. P-2 was accepted on its face value, there was a6 point for delaying the fulfilment of Talb-i-Ishad through the prescribed notice for a week thereafter. There was no explanation for it on record. The plaintiff was bound to account for it because the delay defeated the object of the phrase, "as soon thereafter as possible" in Sub Section (3) of Section 13 of Punjab Pre-emption Act, 1991. The matter can be looked at from another angle also. Notice Exht. P-2 was addressed to the vendee-defendant through Taj Din at Chak No.l02/RB, Tehsil Jaranwala. The scribe of the notice was not disclosed on record Postal receipt was not produced The addressee denied tender of the registered envelope to him. The person who took the registered envelope to the addressee was not produced in evidence. Acknowledgement due did not accompany the registered envelope. It was not produced on record also. Posting of registered "envelope, its despatch and tender to its named addressee in face of clear denial on Oath by him were not free from doubts, more particularly, in presence of a clear omission of it in the plaint of the preemption suit Upon this view of the record, agreed findings on non-fulfilment of Talb-i-Muwathibat and Talb-i-Ishad in the lower courts were neither infirm nor incorrect Further, there was neither fallacy in the appreciation of record, not, was there any mis-appreciation of it Therefore, the agreed finding on a question, of fact as to the observance of necessary Talabs by the preemptor was not open to any exception for being upset in second appeal I would, therefore, uphold and affirm this finding.
11. As a result of the above, second Appeal is properly concluded by a concurrent finging of fact and is dismissed with no order as to its costs. Records shall be returned.