DR. MUNIR AHMAD MUGHAL, J. - Atta Muhammad, Petitioner/plaintiff instituted a suit for possession through pre-emption to land measuring 6 kanals, 19 marlas purchased by the respondent vide mutation of sale dated 28.8.1991, for a consideration of Rs. 1,00,000/-. It was alleged by the petitioner that he had superior right being co-sharer. Shafi Khalit and Shafi Jar but respondent had no such qualification, that the land was actually purchased for an amount of Rs.70,000/- but an exaggerated amount of Rs. 1,00,000/- was shown as sale price, that he was in intense need of the suit land otherwise he would have to suffer Zafar and that the petitioner has observed Talbs in accordance with law.
The respondent resisted the suit by filing written statement stating therein that the petitioner was estopped by his act and conduct to file the suit as he himself got settled the transaction and promised not to pre-empt the same, the defendant/respondent purchased the specific Khasra numbers and as such the land in dispute had been excluded from Khata, that the petitioner was no more co-sharer and the petitioner did not observe the Talbs according to law.
3. On the pleadings of both the parties following issues were framed by the learned Trial Court:-
(1) Whether the plaintiff has fulfilled the legal requirements of three talabs, under the provisions of Islamia Law, before the filing of the present suit? OPP
(2) If issue No.1 is answered in affirmative, in such circumstances, whether the plaintiff has got the superior right of pre-emption qua the vendee-defendant ? OPP
(3) Whether Rs.1,00,000/- was actually fixed or paid as the ostensible sale price of the land in suit?
OPD
(4) If issue No. 3 is not proved, in such circumstances, what was the market value at the time of the transaction in dispute? OP Parties.
(5) Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the defendant is entitled to recover the expenses of sale in case of decree, if so, with what cost and with what effect? OPD
(8) Relief.
4. Both the parties led oral as well a documentary evidence. Mukhtar Ahmad (PW-1), Ghulam Rasul (PW-2), and Munshi Nabi Bakhsh (PW-4) were produced by the petitioner. He himself also appeared as his on witness as PW-2 and PW-5. In documentary evidence the petitioner produced the receipts of registery of notice as Ex.P-1 to Ex.P-2, copy of mutation No. 11 Ex.P-3, copy of mutation No. 273 Ex.P-4, copy of mutation No. 477 Ex.P-5, copy of Aks Masavi Ex. P-6 and copy of Jamabandi Ex. P-7 on the file.
5. In rebuttal, Khan Muhammad as special attorney of the defendant has appeared in the witness- box as DW-1. In documentary evidence the defendant/respondent has produced the copy of mutation Ex.D-1 copy of mutation No. 460 Ex. D-2, copy of Misal Haqiat Ex.D-3, copy of mutation No. 163 Ex.D-4, copy of mutation No. 208 Ex.D-5, copy of mutation No. 392 Ex.D-6, copy of mutation No. 400 Ex.D-7, original special power-of-attorney Ex.D-8 on the file.
6. Issues Nos. 3 and 4 were decided in favour of the petitioner, issue No. 5 was decided against the respondent, issue No. 6 was taken as redundant as it was not pressed during arguments. On issue No. 1 it was held that the petitioner has failed to make Talb-i-Muwathibat according to the standard prescribed by law and has not fulfilled the requirements of Talb-i-Ishhad according to the standard prescribed by law and has not fulfilled the requirements of Talb-i-Ishhad according to the standard prescribed by the superior Courts and as such the right of preemption has extinguished. Resultantly the suit was dismissed. The petitioner went in appeal. The learned Appellate Court concurred with the finding the learned Trial Court and dismissed the appeal.
Hence this revision petition.
7. I have heard the valuable arguments of both the learned counsel for the parties and gone through the record.
8. The learned counsel for the petitioner has submitted that the judgments and decrees of both the Courts below are based on mis-reading and non-reading of evidence and the findings on issue No. 1 were not correct and that both the Courts below have restricted themselves on the point that details of Talb-i-Muwathibat have not been stated in the plaint and that the plaintiff was debared from leading evidence on material facts of Talb-i-Muwathibat as he had failed to mention it in the plaint clearly.
9. The argument of the learned counsel for the petitioner finds support from the judicial pronouncement made by the Hon'ble Supreme Court of Pakistan in the case of Amir Jan and 3 others Versus Haji Ghulam Muhammad (1998 SCJ 86) to the extent that the petitioner was not debarred from leading evidence on material facts of Talb-i-Muwathibat even if he had not clearly mentioned it in the plaint. The said judicial pronouncement was a CPSLA where the leave was refused and the proposition was that the petitioners in their written statement apart from raising other issues stated that the conditions under Section 13 of the N.W.F.P. Pre-emption Act (Act X of 1987) i.e. Requirement of Talbs have not been fulfilled and that no notices were served on them and the Hon'ble Supreme Court observed:- "The question is a pure question of fact and that no doubt Order VI Rule 2, CPC provides that material facts are to be stated in the pleadings but it does not mean that evidence through which such material fact is to be proved which such material fact is to be proved shall also be stated in the pleadings. In our view it will be sufficient requirement of law if it is alleged in the pleadings that after having come to know of the sale the pre-emptor declared his intention to pre-empt the sale.
This material fact has to be proved at the trial through evidence on the plaint. However, if the plaintiff fails to mention the material facts that he has made Talb- i-Muwathibat on his having gained knowledge of the sale would be debarred from leading evidence on the material fact of Talb-i- Muwathibat. "
Their Lordships also observed in that case:-- "The proposition that pleadings are to be liberally construed is the cardinal principle of law. In the instant case Talb-i-Muwathibat is alleged in the plaint, issue in this regard framed and evidence led on such issue, even if the fact is not stated with clarity and in detail in the pleading, the Court is empowered to give finding on such issue in the light of the evidence led."
10. The relevant law relating to demands of Talbs is contained in Section 13 of the Punjab Pre- emption Act, 1991, which reads as under:- "13. Demand of pre-emption. (I) 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-Ishhad'; and
(c) ' Talb-i-Khusumat'.
EXPLANATION I. 'Talb-i-Muwathibat' means immediate demand by a pre-emptor 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.
II. 'Talb-i-Ishhad' means demand by establishing evidence.
III. ' Talb-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 Talb-i-Muwathibat.
(3) When a pre-emptor has made Talb-i-Muwathibat under subsection (2), he shall as soon thereafter, as possible but not later than to weeks from the date of knowledge make Talb-i-Ishhad by sending I notice in writing attested by to 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-Ishhad in the presence of to truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i- Muwathibat under sub-section (2), and Talb-i-Ishhad under sub-section (3) he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
11. The onus to prove the tact that Talb-i-Muwathibat was made immediately on getting the knowledge of sale was on the plaintiff, in this behalf the plaintiff has appeared in the witness-box on 1.12.1994 and has deposed that about three years before Ghulam Rasul and Mukhtar Ahmad had informed him that the sale in dispute has taken place and he declared his right of pre-emption in their presence and that he was instituting a suit for pre-emption and that thereafter the lapse of seven days they went to the counsel who drafted to notices which were read over to him and were sent by registered A.D. In his cross-examination he admitted that he next day after getting knowledge of sale first went to the counsel and then to the defendant Rehm Hussain. He also admitted in the cross-examination that he had got the copy of mutation one day before meeting the counsel. PW-1 Mukhtar Ahmad has clearly stated that the knowledge of sale was got to years before the date of his deposition which was recorded on 3.1.1994. Thus without touching the evidence of the defendant the testimony of Mukhtar Ahmad (PW-1) the witness of the plaintiff, the petitioner had got the knowledge of sale on 3.1.1992. The date of mutation is 24.8.1991, The date of institution of suit is 21.12.1991, it means that this witness is telling a lie as the suit was instituted much earlier than 3.1.1992. PW-3 is Ghulam Rasul who deposed that the land was sold three years before in the same month. His deposition was recorded on 1.12.1994. It means that the knowledge of sale was obtained on 1. 12.1991. Admittedly, the Talb- i-Muwathibat was made ten days before the institution of suit. The suit was instituted on 21.12.1991. Thus Talb-i-Muwathibat was made on 11.12.1991, that is, after 11 days of knowledge. Notices were sent to the defendant on 15.12.1991, the last day of limitation.
12. The law is that the Talb-i-Muwathibat was to be made immediately on receipt of information in the same sitting which the petitioner did not. As such, there was no Talb-i-Muwathibat on his part in the eye of law and when there is no Talb-i-Muwathibat, there can be no confirmation of it.
13. The Hon'ble Supreme Court of Pakistan in the case of Zafar Ali versus Zainul Abidin and another (1992 SCM R 1886) refused leave to appeal where the High Court had dismissed the Civil Revision and the petitioner's suit for preemption had been dismissed on the ground that the condition as required by Section 13, N.W.F.P. Pre-emption Act, 1987 were not satisfied, therefore, the petitioner's right of pre-emption had been extinguished. Leave to appeal was refused with the following observations: - "The judgment in the Quetta case itself shows that the Shariat Appellate Bench of this Court had in the case of Government of N.W.F.P, v. Malik Said Kamal Shah (PLD 1986 SC 360) emphasized that as soon as the plaintiff learns about the sale he would "without any delay immediately declare that he would exercise the right of Shufa against the said sale". It was emphasized that this declaration shall have to be made before the dispersal of the Majlis in which the plaintiff gains the knowledge about the sale. Thus before that moment if the plaintiff wants to gain some more information it might be possible but not thereafter by making applications for obtaining copies or making inquiries. There is practical side to this aspect of the law; namely, that by making 'Talb', on the one had he would be losing the right to pre-empt and on the other he would delay first essential notice about his intention by way of ' Talb-i-Muwathibat'. This view of the law also gets support from further discussion on the subject in the case of Malik Said Kamal. For example, after noticing some aspects of variance on the question regarding, at what stage in the same Majlis the first Talb should be made, it was held as follows:- [(URDU TEXT)] The question of the knowledge about the price of land and the plaintiff's need to pre-empt and the thought process in this behalf were also taken note of and it was further observed as follows:- [(URDU TEXT)] l//J'LfiZ-.r'SJr'W'
(Underlining is ours)
In this case as held by the High Court the above-explained condition was not satisfied by the petitioner, therefore, the condition of the ' Talb-i-Muwathibat' remained unsatisfied.
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- Ishhad' 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-Ishhad' 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".
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 ending the notice.
But as held in Ghulam Jibuti v. 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 to truthful witnesses as well as their having attested the notice."
14. Further, Talb-i-Ishhad is required by law, to be made either in the presence of the buyer or the seller or on the premises which are the subject of sale. This very requirement remained unestablished by the petitioner. In a similar situation the Hon'ble Supreme Court of Pakistan in the case of Ghulam Jilani Versus Ghulam Muhammad (1991 SCM R 2001) dismissed the appeal.
15. In the case of Wahid Bakhsh v. Mst. Mubarik, etc. (NLR 1982 CLJ 194) it was held that concurrent findings of to Courts below, are not open to interference by the High Court in its revisional jurisdiction under Section 115, CPC. The fact of making Talb is to be proved with all its attending circumstances such as time of making Talb, ifs form and contents and witnesses if any, to such Talb and unless these facts are proved, burden of plaintiff could not be discharged simply by saying that he had made Talbs or its acceptance by the other side, plaintiff was required to prove performance of Talb-i-Ishhad that it should intimate that at the relevant time he had called the witnesses to attest that earlier on Talb-i- Muwathibat was made in their presence immediately by him and he should attribute such versions which would be sufficient together with his intention when he made Talb-i-Muwathibat earlier and again-while performing Talb-i-Ishhad he was to demand his right of pre-emption in presence of witnesses.
16. In the case of Shahamat vs. Muhammad Sharif and others (1994 M LD 807) where to Courts below had concurrently found that pre-emptor had failed to prove Talb-i-Ishhad and pre-emptor having failed to find out any mis-reading or non-reading of the evidence of the parties of Talb-i- Ishhad concurrent findings of fact reached by them could not be interfered within revisional jurisdiction of the High Court.
17. From the perusal of the above evidence it is clear that the petitioner could not prove at the trial the fact of knowledge and first demand according to the averments in the plaint. The mention of so many dates has proved that the petitioner has been approbating and reprobating in the same breath. The story of knowledge of sale coming to him ten days prior to the suit stood disproved by- evidence. Thus reappraisal of the evidence made by this Court is also of no help to the petitioner, as such, the revision petition is without merits and the same is dismissed with no order as to costs.