PARVAIZ AHMAD, J.---The appellant has assailed the legality, propriety and validity of the orders of the trial Court, A by virtue of which her suit for possession through pre-emption of the suit property was dismissed on 11-3-1993.
2. Briefly stated the facts are that Mst. Sarwar Khatoon, appellant filed the present suit for possession through pre-emption of the property as detailed in the headnote of the plaint to have been sold by Mst. Ghulam Fatima and others in favour of the defendants/ respondents through a mutation of Sale No,83, dated 16-4-1992 for Rs,1,80,000 but the price was got 'fictitiously recorded as Rs,5,00,000 in order to defeat her superior ' right of pre-emption. It was alleged that on coming to know of sale she in presence, of her attorney, Habib-ur-Rehman, Atta Muhammad and Dost Muhammad, P.Ws. expressed her intention to purchase this property and to file a suit for possession through pre-emption in the same meeting with her claim for Zarrar and Zarurat. It was also averred that after performance of Talb-e-Muwathibat' she made 'Talb-e-Isshad' by issuance of registered notices by post to the defendants. The plaintiff claimed her superior right of pre- emption being co-sharer and having common means of irrigation and existence of common watercourse. The defendants resisted and contested the suit with the averments that neither the requirements of Talb-e-Muwathibat nor that of 'Talb-e-Ishhad' were completed. It was also alleged that no notices of 'Talb-e-Ishhad' were served upon them and it was also asserted that the suit property was in fact purchased for a consideration of Rs,5,00,000 which was in fact also paid to the original vendor-. On the pleadings-of the partid the following issues were framed:--
(1) Whether the plaintiff is estopped by her act and conduct to institute the present suit in view of preliminary objection No,4? OPD
(2) Whether ostensible sale price of Rs,5 lacs was fixed in good faith and paid by the defendants- vendees? OPD.
(3) In case Issue No,2 is not proved, then what was the market value of the suit-land at the time of its sale? OP. Parties.
(4) In case the suit is decreed in favour of the plaintiff, then whether the defendants will be entitled to recover, incidental charges borne by them for the purchase of suit-land? If so, to what extent?
OPD.
(5) Whether the defendants have made developments on the suit-land? If so, to what extend and with what effect? OPD.
(6) In case of dismissal of present suit, then whether the defendants will be entitled to recover special cost under section 35-A, C.P.C. from the plaintiff? If so, to what extent? OPD.
(7) Whether the plaintiff has fulfilled the requirements of Talbs in accordance the Injunctions of Islam prior to institution of present suit? OPP.
(8) Whether the plaintiff would be suffering Zarar in case the suit and remained with the defendants that the plaintiff was got no Zarurat of the same? OPP.
(9) Whether the plaintiff was got superior right of pre-emption as against the defendants- vendees?OPP.
(10) Relief.
3. The trial Court after having recorded the evidence of the parties comprising of the statements of P.W.1, Allah Bakhsh Patwari, Habib-ur-Rehman (attorney of the plaintiff), P.W.3 Atta Muhammad and P.W.4. Dost Muhammad in whose presence the plaintiff had expressed her intention and willingness to purchase this property and had made 'Talb-e-Muwathibat' and iii their presence had also issued notices of 'Talb-eIshhad'. P.W.5, Mehrlan Khan was the scribe of the notices of Talb-e- Ishhad' Exh.P.3 and P.W.4 Learned counsel for the plaintiff tendered copies of documents i,e,, record of right for the year 1988-89 as Exh.P.7 and P.8, Copy of Mutation No,49 as Exh.P.9 copy of Mutation No,47 as Exh.P.10, copy of Mutation No,67 as Exh.P.11, original registered envelope receipt received back with regard to 'Talb-e-Ishhad' as Exh.P.12 and copy of Mutation No,83 as Exh.P.13 and closed the affirmative evidence of the plaintiff. The defendants/respondents in rebuttal produced D.W.1, Muhammad Aslam, D.W.2, Hakam Ali and one of the defendants Shaukat All appeared as D.W. 3.
Learned counsel for the defendants tendered copy of Mutation No,136 as Exh.D.l, copy of Mutation No,147 as Exh.D.2, copy of Mutation No,87 as Exh.D.3, copy of Mutation No,89 as Exh.D.4, copy of Mutation No,83 as Exh.D.5 and closed the evidence of the defendants. Learned counsel for the plaintiff made a statement of producing no evidence in rebuttal. The trial Court then gave an opportunity of hearing to both the parties and came to the conclusion that the suit of the plaintiff on the consideration of non-fulfillment of requirements of Talbs' and on question of Zarrar and Zarurat was liable to dismissal and dismissed it accordingly on 11-3-1993. The plaintiff/appellant feeling herself aggrieved has filed the present regular first appeal.
4. Learned counsel for the appellant Mian Hameed-ud-Din Kasuri, Advocate and learned counsel for the Respondents, Mr. Allah Wassaya Malik, Advocate are present and have been heard and with their assistance we have gone through the entire record made available before this Court.
5. On the very outset learned counsel for the appellant has submitted that he agitates the findings of the trial Court on issues Nos,2,3,
7. There are no cross-objections filed on behalf of the respondents. Learned counsel for the appellant has submitted that the plaintiff immediately after coming to know of the sale, in presence of her attorney, Habib-ur-Rehman and witnesses Atta Muhammad and Dost Muhammad expressed her 'Talb-e-Muwathibat'. Mst. Sarwar Khatton, plaintiff herself has not appeared in the witness-box in this civil suit to support her plaint. P.W. 2, Habib-urRehman has made a statement that the plaintiff came to know of the sale 8/10 days after the transaction of the sale. She was informed about the sale of the suit property by Dost Muhammad and Atta Muhammad in his presence. He further stated that in his presence the plaintiff informed the said P. Ws. to contact the defendants to transfer the property on receipt of consideration in her favour and as such she expressed her 'Talb-e-Muwathibat and also that of Zarrar and Zarurat. The witness at a later stage contacted her in his presence that the defendants have refused to accede to her request and then the notices of 'Talb-e-Ishhad' were issued vide Exhs.P.3 and P.4 upon which he also affixed his signatures. The notices were forwarded to the defendants/respondents through post vide Exhs.P.5 and P.6. This witness in his cross-examination stated that he was unaware of the date of sale of the suit property till today, The plaintiff is a 'Pardanashin' lady. The witnesses of the plaintiff are not her tenants but they are related to each other as real brothers. The notices sent through registered post have till to date not been received back but he at the same moment admitted that the notice sent to Zubed Ullah was received back.
P. W.3 Atta Muhammad who appeared in the witness-box and made a statement that he came to know of the sale 8/10 days after the date of sale and then he immediately in the company of Dost Muhammad came to Mianwali and informed the plaintiff and Habib-ur-Rehman about the sale upon which Mst. Sarwar Khatton expressed her intention to purchase the property and made Talb- eMuwathibat'. After refusal by the defendants notices Exhs.P.3 and P.4 with regard to 'Talb-e- Ishhad's were sent to them and these notices were thumb marked by him as well as by Dost Muhammad, P.W. This witness in cross-examination stated that when they went to contact the defendants to inform them about 'Talb-e-Muwathibat' made by Mst. Sarwar Khatoon, no amount was taken with them as sale consideration of the property. Dost Muhammad appeared as P.W. 4 and made a similar statement as that of Atta Muhammad that 8/10 days after sale he in the company of Atta Muhammad came to Mianwali and informed the plaintiff and Habib-ur-Rehman and Mst. Sarwar Khatton made 'Talb-e-Muwathibat' and upon refusal by the defendants notices Exhs. P.3 and P.4 were served which were thumb-marked by him as well as Atta Muhammad. This witness in cross-examination admitted that he and Atta Muhammad are tenants of Mst. Sarwar Khatoon. Learned counsel for the appellant has further submitted that by this production of oral evidence 'Talb-e-Muwathibat' and 'Talb-e-Ishhad' stands proved on record. With regard to registered envelope Exh. P.12 it is submitted by learned counsel for the appellant that postal agency was working as an agent of the defendants/respondents and in accordance with law once a letter is put up in a course of transmission to the other side it is deemed to have been received and in the present case the address as submitted by the defendants in the mutation of sale as well as in the written statement was correctly written and the presumption is in favour of the fact that the letter had correctly been posted.
6. Learned counsel for the respondents has submitted that by the analyses of the witnesses produced by the appellant herself it is established on record that neither 'Talb-eMuwathibat' was made as desired by law nor 'Talb-e-Ishhad' was made in accordance with the provisions of section 13 of the Punjab Pre-emption Act, 1991.
7. After having heard learned counsel for the parties the facts which emerge are that Mst. Sarwar Khatoon did not appear as her own witness in the witness-box. She was the best possible witness to have made a statement that on coming to know of the sale on a particular date she expressed her intention to purchase the property and made 'Talb-e-Muwathibat'. The case of the appellant is that 'Talb-e-Muwathibat' was made by Mst. Sarwar Khatoon herself in the presence of Habib-ur- Rehman, Atta Muhammad and Dost Muhammad, P.Ws. To cprroborate this fact of making of 'Talb- eMuwathibat' Mst. Sarwar Khatoon has not come in the witness-box. Habib-ur-Rehman, who is her attorney in cross-examination has made categorical statement that even till to date i.e date of recording of his statement by the Court he is unaware of the date of sale. There are material discrepancies in the statements of Habib-ur-Rehman, Dost Muhammad and Atta Muhammad.
Habib-urRehman does not claim Dost Muhammad and Atta Muhammad to be the tenants under them but Dost Muhammad specifically admitted that he and his brother Atta Muhammad are the tenants under Mst. Sarwar Khatoon. Both of these P.Ws. are real brothers. There are also material discrepancies with regard to 'Talb-e-Ishhad the notices Exhs. P.3 and PA as stated by Habib-ur- Rehman was signed by him as well as by Mst. Sarwar Khatoon. Habib-ur-Rehman has not stated anything that the notices were also thumb-marked by Atta Muhammad and Dost Muhammad, P.Ws. The perusal of the notices Exhs. P.3 and P.4 reveals that perhaps they were get signed prior to the drafting of the notices as it bears the thumb-impression of Mst. Sarwar.Khatton and signatures of Habib-ur-Rehman at the end of the notices but signatures of Habib-ur-Rehman also appears as witness No,1 over these notices and this fact makes the notices and their drafting doubtful. As regards registered envelope and receipt Exh.P.12 are concerned the Court specifically made an observation that when the registered envelope Exh. P.12 was opened it was having no contents and no original notice of 'Talb-eIshhad' was available in this registered envelope and it was presumed that no 'Talb-eIshhad was made. The made and manner in which this registered envelope Exh.
P.12 was presented in evidence in Court by learned counsel for the appellant and it was opened and found to be as without any contents. The onus of the whereabout of its contents was upon the appellant/plaintiff and the entire evidence in this civil suit does not find any cogent reason or material with regard to this fact. In this eventuality the appellant plaintiff has failed to prove Talb- e-Muwathiba.and 'Talb-e-lshhad and the findings of the trial Court are correct and are to be maintained and this issue is decided against the appellant confirming the findings of the trial Court. Now coming to the question of the sale price of the suit property admittedly situated in Chak No,30-DB Tehsil and District Mianwali the onus to prove the payment of Rs,5,00,000 as sale consideration was upon the defendant/ respondent and the defendants/respondents have relied upon the statement of Muhammad Aslam and Hakam Ali other than Shaukat Ali one of the defendants in the civil suit. Muhammad Aslam has made a categorical statement that the amount was never counted by him. The description and the denomination of the currency note paid as sale consideration is not within his knowledge. D.W.2, Hakam Ali is father of the defendants and as such is an interested witness, otherwise the eyidence available on record is mutation of sale with regard to the sale of the land in the same or adjacent area, as above-stated the suit property is situated in Chak No,30-DB Tehsil and District Mianwali. Exh.P.9 is copy of mutation of sale of the land situated in Chak No,30 D.B where the suit property is situated on 1-10-1989. Through this mutation the property measuring 120 Kanals 1 and Marla was allegedly sold for Rs,1,48,000. Exh.P.10 is also a copy of mutation of sale wherein the property situated in Chak No,30 D.B. where the suit property is situated through which property measuring 120 Kanals was sold for consideration of Rs,1,80,000.
Exh. P.11 is also a copy of mutation of sale of land situated in Chak No,30-DB with regard to sale of property measuring 154 Kanals, 14 Marlas for Rs,1,00,000. The most relevant evidence is that of mutation of sale within the same Chak where the suit property is located. Learned counsel for the respondents has submitted and placed reliance upon copies of mutations of sale Exhs. D.1 and D.2 which relates to sale in Chak No,31 D.B. and Exhs.D.3 and D.4 relates to sale in Chak No,32 D.B.
8. We find that even the learned trial Court while dealing with the matter of actual payment of the price, which of course was to be proved by the respondents/vendees and none else, has adopted a novel procedure. He has although not said so but for all purposes he has jumbled up Issues Nos,2 and 3 and in the process has managed to observe that the appellants had not been able to prove that the price was not paid by the respondents as alleged by them. This is not to be. The respondents were to prove the actual payment and thereafter market value was to be assessed under Issue No,3. Now we find that even the learned trial Court has not held that the respondents have been able to prove that Rs,5,00,000 was fixed in good faith and actually paid as the price of the land. We do not find any evidence of the fixation of actual payment of Rs,5,00,000 as price of the land. Finding on Issue No,2 is accordingly reversed and under issue No,3 it is held that the market 'value of the suit-land is Rs, 1,80,000.
9. Since we have affirmed the findings of the learned trial Court on Issue No,9, the R.F.A, is dismissed but without any order as to costs.