MAHAMMAD NASEEM CHAUDHRI, J. - Evidenced through Mutation No. 1205 attested on 16.10.1996; Mst.
Surraya Bibi and others (vendors) made sale of the disputed property comprising an area of 11 kanals and 3 marlas of land fully described in the plaint in favour of Malik Nazir Ahmad petitioner- defendant. Mazhar Hussain respondent-plaintiff instituted his suit on 13.2.1997 to pre-empt the said sale on the alleged qualifications of Shafi Sharik, Shafi Khalit and Shafi Jar. The pre- emptor/respondent took up the plea that he came to know about the sale under pre-emption on 23.10.1996 through his brother Muhammad Riaz when he expressed his demand in the Majlis declaring his intention to exercise the right of pre-emption. He averred that thereafter on 28.10.1996 he sent to the defendant registered acknowledgement due notice after getting the same attested and verified by to truthful witnesses whereby he fulfilled the Talb-i-Ishhad. According to him the defendant refused to receive the notice. Thereafter he instituted the suit. It is narrated in the plaint by the pre-emptor that the sale price of Rs. 1,50,000/- was got entered by the vendee to scare away the pre-emptors and that an amount of Rs. 90,000/- was fixed and paid which was the market price which fact was also mentioned in the notice pertaining to Talb-i-Ishhad. The suit has been resisted by the petitioner-defendant who denied the receipt of the notice of Talb-i-Ishhad and refuted the assertion that he had refused to receive the same. He, however, took up the plea that Mazhar Hussain pre-emptor handed over a copy of the notice about Talb-i-Ishhad at his residence when he intimated him about the despatch of the notice through registered letter.
2. The suit was pending before the learned Civil Judge, Daska. On 13.9.1997 Malik Nazir Ahmad petitioner-defendant made an application before the learned Trial Court to get produced the original notice, a photo-stat of which was delivered to him by had at his house and in the alternative he sought the permission to produce the same documents in the secondary evidence.
This petition was resisted by Mazhar Hussain pre-emptor who took up the stand that he did not deliver any notice to the petitioner-vendee by had. After hearing the parties the learned Trial Court gave the weight to the denial of the pre-emptor about the delivery of notice regarding Talb-i- Ishhad by had and dismissed the application. The revision petition filed by the petitioner- defendant was also dismissed with the reasoning that the giving of notice by had was not established. Feeling aggrieved Malik Nazir Ahmad petitioner has filed this writ petition.
3. I have heard the preliminary arguments addressed by the learned counsel for the petitioner- defendant who mainly canvassed that in the photo-stat of the notice delivered by had by the pre- emptor to the vendee one witness was different from those witnesses mentioned in the notice said to have been sent by registered post to the vendee. He added that keeping in view the factual aspect of the aforesaid dispute the petitioner is entitled to adduce the secondary evidence as contemplated under Article 74 of the Qanun-e-Shahadat Order, 1984. He maintained that difference of witnesses in both the notices is enough to non-suit the pre-emptor. I am of the view that the impugned judgments passed by both the Learned lower Courts are unexceptional, in the plaint the pre-emptor/respondent specifically expressed about the Talb-i-Ishhad and attached the relevant notice with the plaint. No doubt in the written statement the petitioner-defendant took up the stand that a copy of the notice was delivered by had at his residence, but inspite of the fact that the original notice said to have been received back by the pre-emptor due to the refusal by the vendee was attached with the plaint this plea was not raised that both the notices contained the names of different witnesses to the extent of one witness. Thereafter the raising of the aforesaid type of factual assertion cannot be allowed to tl e petitioner-defendant. The other aspect of the matter is that there is no plea in the pleadings that there is lack of post office facility in the area.
This being the position Talb-i-Ishhad could be made by the pre-emptor within a period of to weeks after making the Talb-i-Muwathibat sending a notice in writing attested by to truthful witnesses under registered cover acknowledgement due to the vendee, confirming his (pre-emptor's) intention to exercise the right of pre-emption. Thus there is no provision to deliver the copy of the notice about Talb-i-Ishhad by had to the vendee. Even if such a fact has occurred the same is of no legal weight as the delivery of notice of Talb-i-Ishhad by had has not been provided by law.
Thus the comparison desired to be made by the petitioner-defendant having no permission/blessing from law, the effort to prove the same would simply remain an exercise in futility bringing no fruitful result in favour of the petitioner-vendee. This aspect can be dissected in this manner as well that in case of non-proof of Talb-i-Ishad made through registered letter, no legal benefit shall be derived by the pre-emptor even though the petitioner-vendee has expressed about the receipt of the notice of Talb-i-Ishhad by had. Legally any fact which had not been pleaded could not be allowed to be proved. With respect to the controversy in had I would also be refer to the following maxim so that the same stands solved m a salubrious manner: "A Communi Observantia non-est recedendum-Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful."
4. The pre-emptor has to establish the making of the demand of Talb-i- Ishhad under Section 13 of the Punjab Pre-emption Act, 1991 and not in the manner averred by the petitioner-defendant- vendee. In view of the aforesaid analysis of the matter in had I hold that the impugned judgments passed by both the learned lower Courts need not be interfered with and thus no legal right of the petitioner-vendee stands infringed.
5. For what has been said above, I dismiss this writ petition in limine.