SAYED NAJAM-UL-HASSAN KAZMI, J.- To pre-empt sale of land,, effected through Mutation No. 590, dated 19.1.1991, in regard to land situated at Chak No. 257/G.B, Tehsil and District Toba Tek Singh, Mst.
Bashiran Bibi, respondent herein, filed a suit for pre-emption, on the ground of being co-sharer in the khata, which suit was decreed by the leamed Civil Judge Tohg Tek Singh, on 29.11.1995 while the appeal thereagainst was dismissed by the leamed District Judge. Toba Tek Singh qji 29.4.1997 and in consequence, this second appeal has been filed to assail the judgments of the two Courts below.
2. Leamed counsel for the appellant, argued that though the mutation was attested on 19.1.1991 yet the respondent had knowledge of sale, on 13.1.1991, when the bargain was struck and possession was delivered. He submitted, that the possession Was with the tenant of respondent and her husband from whom the same was delivered to the appellant, under the instructions of the husband of the respondent, lt was contended, that the respondent claims Talb-e-Muwathibit on 8.2.1991 which will not be a due compliance Of requirement of law inasmuch as, the respondent was required to make demand, at this spar of the moment, on acquiring knowledge of sale. It was argued, that the property had been mutually partitioned and that the appellant was occupying his separate share and since die Khata stands divided therefore the respondent cannot plead superior right on the ground of being co-sharer in the Khata. Reliance was placed on PLD 1967 Peshaware
284. It was also argued that the notice of Talb-e-Ishhad was not- issued within the statutory period and that the notice of Talb-e-Ishhad was not sent to the appellant nor served upon him and therefore, the second Talb would not be deemed to have been made in accordance with law.
Lastly it was argued, that the respondent did not appear as a witness and, therefore, the learned Courts below fell in error in assuming dial the requisite Talbs were proved.
3. Conversely leamed counsel for the respondent argued, that die appellant had tried to built up a case which was never pleaded in the written statement and that the evidence led on the alleged plea of knowledge from 13.1.1991 or on the basis of transfer of possession, having not been so pleaded in the written statement, cannot be looked into and was rightly ignored by the two Courts below. He maintained, that the case of the appellant, in the written statement, was that the respondent/plaintiff had knowledge of the sale froth 19.1.1991 as the mutation was allegedly attested in "Jalsa-e-Aam* of Deh but the evidence was led on altogether different premises and there being contradiction in the evidence and pleadings, the appellant was rightly disbelieved by the two Courts below . Leamed counsel submitted, that even otherwise, the property having not been partitioned by any decree of the Court or otherwise, any alleged holding of Hissa Darri' possession in pursuance of any family arrangement wfould not amount to partition of khata and the respondent would continue to be co-sharer in the joint khata. Referring to the revenue record, it was argued that the land was still shows as joint and undivided. Leamed counsel submitted, that the respondent was undeniably co-sharer in the land which qualification, the appellant did not possess. Regarding Talbs it was argued that the knowledge of sale was acquired on S.2:1991 when in the same meeting, the respondent made Talb-e-Muwathibit which was followed by notice for Talb-e-Ishhad. He submitted that the notice of Talb-e-Ishhad was issued to the respondent, at the address given in the mutation and also at the Chak where the land in suit was located and it was received by the father who was also Attomey. The notice was not sent to the father in his name bur was addressed to die vendee. He maintained, that sending of registered notice attested by two truth ful witnesses is requirement of law and service is not a pre-condition, though in this case the notice was received by a duly constituted agent. Regarding objection of non-appearance, it was argued, that the respondent being a lady, could be represented through Attorney, in the proceedings of the suit. He, however, submitted that the Talbs were made by the respondent herself which is proved by the evidence on record and thus the requirement of law stood satisfied.
4. The points raised, have been given due consideration and the evidence led by dm two sides, has been reviewed, with the assistance of leamed counsel for parties.
5. The respondent claimed superior right of pre-emption on the ground of being co-sharer in foe Khata. To prove this plea, she produced, oral as well as documentary evidence. Admittedly, the respondent is a co-sharer in the Khata, of which the laid subject-matter of sale forms pan. The oral as well as documentary evidence, led by the respondent, also corroborate her pled of being a co- sharer in the Khata which is not denied even by the witnesses of the appellant. Ex.P-4, copy of Jamabandi for the year 1985-86, strengthens the case of respondent and provesher to be aco- sharer.
6. Ln the course of cross-exanrinatioq to the witnesses of respondent- and. Also in his evidence, the appellant attempted to build up a case which was not pleaded in the written statement. The appellant in the evidence, came up with a story, that the share in the joint khata were separated on the basis of an alleged family arrangement mid that-by virtue thereof, the vendee-appellant, was given separate possession and on fois assumption, it 'was claimed that the khata was no longer joint nor the respondent was a co-sharer any more. From foe written statement, itis observed, that no such plea was raised by the appellant, ln para 3 of the written statement, it was evasively stated that the respondent had no superior right of pre-emption and it was not .Pieaded, if foe property had been partitioned, by virtue of any family arrangement or that the khata stood partitioned or also that the appellant was in possession of specific portion, in pursuance of any such arrangement. It is a settled rule that material facts must be alleged in foe pleadings (and that evidence cannot be led on a plea of Which no foundation has been laid in the written statement. It is also a rule, that if 'any fact is raised in the evidence or some evidence is led on a plea, which did not find mention in the pleadings, it should not be allowed to come on recordand in case, the evidence comes on record, the same will be overlooked and not considered. Reference can be made tb 'Taiyaba A. Kapadia v. Agha Ziauddin Bahmi (198l CLC 1267), Muhammad Shaft v. Rahntat Ali (1985 CLC 432). Saiyed Ali Amir v. Messrs Dabnai Cement Ltd. (PLD.1961 Karachi 255). Haji Gfiaffar-Haji Habib Jami v. Khawam Wakif Ahmad (PLD 1959 Karachi 611) and Siddik Muhammad Shah \ Mst. Saran & others (AIR 1930 PC 57X1)).
In view of the rule given in the precedent cases, die defence sought to be raised, in eviSence by (he appellant cannot be looked into dr considered. Even otherwise, there is no substance, in the point raised. According to respondents, on the sale of the property, the respondent and tier husband, after retaining a part of the property, allegedly delivered possession of specific portion to the vendee, and that by virtue of the alleged private settlement, the khata stands partitioned. No documentary evidence has been placed on record to prove or ex fade establish that the khata stands partitioned or the share of petitioner stood separated or that the respondent has ceased to be a co-sharer in the khata. No mutation has been sanctioned, no entry has been made in the revenue record. The revenue record, copies of which have been placed on the record, still indicate that the khata is joint and undivided, ln "Shoukat Ali v. Sakindar Hayat etc.' (1995 PSC 648), it was held, that Hissadari Qabza of a co-sharer does not tantamount to partition. In 'Ism Gul v. Meer Khan and 17 others' (1997 SGMR 1282), it was held Hissadari possession through family arrangement is always subject to regular partition and that where the co-sharers are in hissadari possession of the joint land, under any family arrangement it will not amount to partition of the property-Leamed counsel for the appellant placed reliance on 'Shah Hussain v. Abdullah Khan and others (PLD 1967 Peshawar 284), wherein it is held, that the right of pre-emption is not purely a personal right but is available to the pre-empter as a co-sharer and is lost with the loss of ownership by transfer. It was further observed that the object of right of pre-emption appears to be that the pre-emptor should have tengible objective right in the property which affords him basis for the exercise of die right of pre-emption and untengible subjective or paper right does not giye the jpre- emptor the right to assail the transaction of sale. The case referred to, has distinguishing features and facts and therefore, it does not in any way, strengthen the position of the appellant, ln the said case the pre- emptor by voluntary at transferred his entire entitlement and did not remain a co-sharer and also lost the qualification of being a co-sharer and thus in this back drop, it was observed, that a person, who was once a co-sharer but it ceased to be so at the date of sale or by parting with his rights in the joint property would not be co-sharer and could not claim pre-emption. A co-sharer, for the purpose of pre-emption would mean a person who bolds an existing joint propriety' interest whether absolute or limited in an undivided property and not merely in its adjuncts or appendages.
In the present case, the property has not so far been divided. Revenue record prove beyond doubt, that the khata, is joint. The plea of delivery of possession and separation of share, . Tried to be built up in evidence, was not raised in the pleadings and cannot be considered or accepted. Even otherwise, holding of hissadari possession by virtue of any alleged family arrangement or private settlement, would not tentamount not ultimate partition of the khata nor the respondent would cease to be a co-sharer on such plea. Relying on the rule, laid in the above-noted, precedent cases. I am of the view that the submission made by leamed counsel for the appellant, in this regard, is devoid of merit and is accordingly repelled.
7. As regard Talbs, the case of respondent was. That she came to know of the sale, on 8.2.1991 from Muhammad Sharif, in the Majlas of Muhammad Sharif. Muhammad Shaft, Muhammad Rafique, Muhammad Tufail and Barkat, when she announced her superior right of pre-emption, and intentions to enforce the same, which Was followed by a notice of Talb-e-Ishhad. Muhammad Sharif appeared as PW-4 and deposed that 20 days from the attestation of mutation he came to know of the sale and told this fact to the respondent, who declared her intention to pre-empt the sale. He also deposed, that afterward a notice was sent by the respondent to the appellant and he was a witness to this notice. Muhammad Shaft appeared as PW-5 and after corroborating the statement of PW-4, proved making of Talb-e-Muwthabit and Talb-e-Ishhad by the respondent.
PW-6 and PW-7 also corroborated the statements of PW-4 and PW-5. Abdul Ghani husband of respondent appeared as her attorney and also deposed, that the respondent came to know of sale from Muhammad Sharif when she announced her intention to enforce her right of preemption. In the same Majlas w'wich was followed by a notice of Talb-e-lshahad despatched to the vendee.
There is thus enough evidence on record, to prove, that Talb e-Mimallubit was made, in the same Majlas, by the respondent, at the the w hen she acquired know!Edged of sale.
8. The first argument against the Talb, was that the respondent came to know of the sale on 13.1.1991 but she did not make Talb-e-Muwthabii and instead claims to have made it on 8.2.1991. The plea, that the respondent acquired knowledge on 13.1.1991 was not raised in the written statement and therefore it was an after-thought which was attempted to be introduced in evidence. In the- written statement, the plea was, that the mutation took place on 19.1.1991 in the Jalsa-e-Aam and that since then, the respondent was allegedly having know ledge of the sale. It was in evidence, that the appellant tried to introduce a story, that the bargain was struck on 13.1.1991 when the mutation was entered and that the possession was with the tenant Muhammad Aslant, who was holding the land, as a tenant of respondent and her husband and that he allegedly delivered the possession on the asking of respondent and her husband. On this story, it was attempted to be argued that the respondent should have made Talb-e-Muwathibat at the, spur of the moment, when she acquired knowledge. As noted supra, this plea has not been raised in the written statement and therefore, neither any evidence could be led nor the evidence so recorded, could be given any value. Lt was an afterthought story, which was advanced, at the evidence stage. If there had been any basis, it should" have been pleaded in the written statement. Even otherwise, the story introduced in evidence could not be proved. Admittedly, neither the attendance of respondent nor her husband is marked, either in the report of patwari at the the of entering mutation or at the the of attestation of mutation nor they are witnesses to the transaction. The respondent has categorically stated, that the mutation was- sanctioned in a clandestine manner in the Dera of a relative of the vendee and it was kept secret and for this reason, none of the Lumbardars had attested the same. TTiis fact finds corroboration front the evidence of the appellant himself. DW 1, Khushi Muhammad the attorney of appellant, admitted in cross- examination, that on 19.1.1991, Tehsildar came at the Dera of Ch. Akram Councillor where the ' mutation was attested. Obviously Dera of Ch. Akram Councillor would not be public place nor it could be said, that the mutation was attested in Jalsa-e-Aam. He further admitted in cross- examination, that mutation was not got attested from the Lumbardar. Muhammad Akram Councillor w as admitted to be the cousin of DW 1. DW 2 also admitted that there were three Lumbardars in the village but none of them attested the mutation, ln these circumstances, when the mutation was attested at the Dera of Muhammad Akram Councillor, a relative of the appellant, the same was not attested by any of the Lumbardars of the village, and the respondent's presence was not mentioned in the mutation, the entire story of the appellant, that the mutation was sanctioned in Jals-a-Aam and every one in the village came to know of the sale, lacks foundation.
Similarly, the transfer of possession was not mentioned in the mutation itself. The plea of transfer of possession, is further falsified, by the admission made by the DWs. DW 1, attorney of appellant admitted, that Rabee crop is harvested by Aslam tenant. DW 2 also admitted that Rabee crop was harvested by the tenant Aslam. The Rabee crop in harvested normally in April May season. If the tenant continues to be in possession and harvest the crop in May, 1991 then the total story of the appellant, about the delivery of the possession by the tenant, on 13.1.1991, at the instance of respondent and her husband and about the alleged know ledge of sale to them stands belied. The fact, that the tenant continued in possession, as per admission of DWs, uptill Rabee 1991. Would show that neither-"any possession was transferred on 13.1.1991 nor there was any question of knowledge of sale to respondent. As against this, the witnesses produced by respondent proved, that she came to know of the sale on 8.2.1991. And that she made Talb-e-Muwthibai in the same Majlas where she expressed her intentions to epforce her superior right of pre-emption. The first Talb namely Talb-e-Muwthibat thus sufficiently stands established in the evidence.
9. As regard Talb-e-Ishhad. The appellant do not deny the receipt of notice of Talb-e-Ishhad. -The notice was proved, by producing PW.I, PW 2, PW 3, PWs - to 7. The Talb-e-Muwthibat was made on 8.2.1991 while notice of Talb-e-Ishhad was sent on 10.2.1991, The objection of the appellant is that the notice was addressed to the Attomey and not to the appellant. This objection is without any substance inasmuch as DW l, the father and attorney of appellant, admitted, in cross-examination that the notice was addressed to Shahid appellant which was received by him. He admitted his signatures on the Acknowledgement Due Receipt Ex.P 1. He categorically stated, that it was not sent through him but was directly addressed in the name of appellant. This being so, the objection raised by the appellant, is without any foundation. The sale was made through DW 1, who throughout acted as attorney of the appellant. The notice was sent at the address of the appellant given in the mutation and also at the Chak where the land was situated. This being so, the notice was properly addressed, ln law. The requirement of notice of Talb-e-Ishhad is that the notice has to be sent, at the address of the appellant or at least at the place where the land is situated. In this case, the notice was sent to the village/Chak No. 257/GB, which was the place where the land is situated and also the address of the vendee given in the mutation Ex.P 1. Leamed counsel* for the appellant placed reliance on "Ikram-ud-Din and others i. Ghulam Ahmad Khan and others" (1995 M LD Lahore 1689) where it was held that failure to make Talb promptly would extinguish the right of pre-emption. It was observed that Talb-e-Ishahad in terms of section 13 of Punjab Pre-emption Act. 1991 should be made through a notice sent by registered post acknowledgement due. Which should be attested by two truthful witnesses and it should be made soon after Talh- e-Muwthibat but not later on two weeks from the date of knowledge and also that it should be addressed at the correct address through registered post acknowledgment due. y was further held that the non- issuancd of notice in terms of section 13 of the Act would disentitle the pre-empter to enforce his right of pre-emption. In the present case, the notice was addressed through registered post acknowledgment due, it was addressed, at the place, where the land was situated and also was the address given in the mutation, it was attested by two truthful witnesses, it was sent w ithin two days from Talb-e-Muwthibat and that it reiterated the making of Talb-e- Muwtfdbat and therefore, the requirement of law was sufficiently prov ed, ln Aliman Begum v. Alt Hussain and others (AIR 1923 Allahabad 355) it was observed that the Muhammadan Law requires that the second demand should be made either in the presence of the vendor or vendee or on the property i.e. Subject- matter of pre- emption. As noted supra, the notice in the present case was sent at the address of the vendee which was given in the mutation Ex.P. 6 which was also the place w here the land is situated. Receipt of notice has beet admitted in the written statement as well as in the statement of DW 1. The two witnesses, who have attested the notice, were proved to be truthful in cross- examination and their credibility could not be shaken. This being so, the second Talb namely Talb- e-Ishhad stood established on the record and no exception can be takas therefrom.
10. Leamed counsel for the appellant relying on Mst. Salma v. Manzoor Hussain, ere. (NLR 196 Civil 282), argued that the respondent did not appear in this case and she was represented by her husband who appeared as PW 3. In the said case, it was held that the Talb made by husband or "Behnauee" on behalf of female pre-emptor would not be constitured to be a proper Talb. In the precedent case, the vithess produced, had deposed, that the Talb-e-Muwathabit was made by the husband, who at that-the was not the attorney of the female pre-empter and it was in that situation, the view taken was that proper talb was not made. The facts of the present case are quite distinguishable, inasmuch as. In this case all the witnesses have categorically deposed, that Talb-e-Muwathibat was made directly by the respondent pre-emptor and it is not the case of the respondent that she made Talb-e- Muwathibat or Talb-e-Ishhad through her husband. Rather her case is that on acquiring knowledge of sale she herself made Talb-e-Muwathibat and announced her intentions to enforce right of pre-emption. This being so. The above-mentioned precedent case does not strengthen the cause of -the appellant any longer. The respondent, being a'lady, could be represented through attorney, who was incidentally her husband, in the Court proceedings, nevertheless, she is required, in law. To make the three Talbs by herself. Law permits appearance of ladies through attorneys, in the Court proceedings, to which no objection can be raised. Anyhow, the Talbs at the initial stage, had to be made by the female pre-emptor herself which are proved in this case, to have been made by the respondent at the relevant the. The attorney and the other witnesses hat e deposed that the attorney was present at the the when Talb-e-Muwathibat was made and notice of Talb-e-Ishhad was issued, therefore, he could appear on behalf of the pre- emptor. In the proceedings of the suit and personal appearance of respondent was not mandatory, in the given circumstances of the case, particularly when any special, facts were not claimed to be in her knowledge.
11. As a sequel of what has been noted supra, it is. Contended, that the two Courts have -not in any way, committed any jurisdictional error or legal infirmity, in holding, that the respondent had proved the requisite Talbs and that she had superior right of pre-emption to pre-empt the sale. No misreading or non-reading of the evidence could be pointed out or observed in the course of hearing of this appeal.For the reasons above, this appeal being devoid of merit, is dismissed, with not order as to costs.