Muhammad Yousaf etc. Were the owners of the land measuring 59 Kanals, 1 Marla, Khasra Nos.62, 823, 70, 442, 757, 835, 67, 68, 69, 316, 836, 834 and Khata-- Khatuni Nos.10/33, 35 to 38 in accordance with Register Haqdaran-e-Zamine for the year 1985-86, situated in Mauzia Rangra, Tehsil Shakargarh, District Narowal. The above-- stated owners transferred the said land in favour of the respondent-defendant Ghulam Ghaus son of Rahim Bakhash, through registered sale-deed dated 14-4-1990. Abdur Rehman's etc. Appellants pre-empted the land by filing the suit for possession through pre--emption in the Civil Court at Shakargarh on 18-6-1990, on the ground that they had the superior right of pre-emption on the basis of Shafi-e-Khilat and Shafi-e-Jar, having right of passage and irrigation common and the land of the pre-emptor was adjacent to the suit-- land. It was pleaded that the sale in question came to the knowledge of appellants about 1-3/4 months before filing present suit in presence of Muhammad Yaqoob son of Qaim Din, Rahim Bakhash son of Ghulam Rasul and Muhammad Younas son of Ghulam Nabi. And at the same place, meeting and time, the plaintiffs performed Talb-i-Muwathibat by showing their intention to file the suit.
Notice was also issued through registered post on 30-4-1990 to perform Talb-i---Ishhad.
2. This suit filed by the appellants for pre-emption was contested by Ghulam Ghaus respondent by filing the written statement. He contended that the appellants had waived their rights of pre- emption and that the pre--emptor had no right of pre-emption. It was further contended that the respondent is a co-- sharer in the suit-land with the vendor, therefore, the plaintiffs-appellants had no right to file the suit. The assertion that the plaintiffs had performed the requisite Talabs, was denied.
3. From the divergent pleadings of the parties, the learned Civil Judge framed with following issues:-- (1)Whether plaintiffs have no cause of action against the defendant? OPD (2)Whether the plaintiffs have waived their right of pre-emption? OPD (3)Whether the ostensible sale price of Rs.6,00,000 was bona fide fixed and paid by the defendant?
OPD (4)Whether the defendant, is entitled to get incidental changes, if so, to what extent? OPD (5)Whether the plaintiff has fulfilled the requirements of Talabs, before filing the suit? OPP (6)Whether the plaintiff has superior right of pre-emption against the defendant? OPP (7)Relief.
4. One of the plaintiffs-appellants namely Abdur Rehman's appeared as P.W.1 and produced Muhammad Yaqoob son of Qaim Din, Muhammad Younis son of Ghulam Nabi, Munshi Allah Ditta petition-- writer as P. Ws. Nos.2 to 4. Copy of the notice Exh.P.1, of the Register Haqdaran-e--- Zamine for the year 1985-86, (Exhs.P.2 and P 3), copy of the sale-deed (Exh.P.4), copy of Akas Shajra (Exh.P.5), were tendered in evidence.
5. On the other side Ghulam Ghaus defendant-respondent appeared as D.W.1, Haji Ahmed petition- writer D.W.2 and Fiaz Ahmed as D.W.3, were produced in the Court. Copy of the agreement to sell (Exh.D.1), copy of the sale-deed (Exh.D.2), copy of the order of decision in the suit of Abdur Rehman's v. Ghulam Ghaus (Exh.D.3), copy of the decree (Exh.D.4) and receipt Exh.D.5, were tendered in evidence. The learned Civil Judge decided Issue No.6 regarding the superior right of pre-emption in favour of appellant on the basis of Akas Shajra and Akas Bandi Exh.P.5 and Exh.P.6 and observed that these documents show that the land of the plaintiff is adjacent to the land which is in dispute, so the plaintiffs have got superior right of pre-emption as compared to the defendant. On the basis of the statement of P.W.1 Abdur Rehman's plaintiff, Muhammad Yaqoob, one of the witnesses of Talb-i-Muwathibat, Muhammad Younis and Munshi Allah Ditta, the learned Civil Judge observed that the requisite Talbs were performed as the notice Exh.P.1 was also issued to the vendee. On the basis of the evidence the learned Civil Judge, recorded a finding of Issue No.5 in favour of the appellants-plaintiffs. The suit of the appellants-plaintiffs was decreed vide judgment and decree dated 10-5-1994. In appeal filed by the respondent Ghulam Ghaus the finding of the learned Civil Judge on Issues Nos. 5 and 6 were reversed. It was held that respondent had purchased the land from the joint Khata measuring 1 Kanal, 1 Marla in Khasra No.841, Khatooni No.10/34, which was pre- empted by Abdur Rehman's etc. And the suit filed by them was dismissed by rejection of the plaint and decree (Exh.D.3 and Exh.D.4) dated 17-10-1991, therefore, the vendee was a co-sharer and he had the Shafi-e-Sharik, therefore, the plaintiff's suit could have not been decreed despite the fact that he had the right of Shafi-e-Khilat or Shafi-e-Jar having his land adjacent to the suit-land.
Regarding the performance of requisite Talbs, the learned Additional District Judge was of the view, that the same was not performed in accordance with law, therefore, he proceeded to reverse the finding on Issues Nos.5 and 6, and accepted the appeal of the respondent-Ghulam Ghaus. The suit filed by the appellant was dismissed.
6. The learned counsel for the appellants contends that the disputed sale was, made through the sale-deed dated 14-4-1990 and the respondent Ghulam Ghaus became the co-sharer on the basis of sale mutation attested in his favour on 16-4-1990, after two days of the sale of the impugned land, therefore, he cannot be considered as cc sharer in the suit-land. Further contends that the plaintiffs have proved the performance of Talb-i-Muwathibat and Talb-i-Ishhad by producing one of the plaintiffs Muhammad, Yaqoob son of Qaim Din. The learned Additional District Judge has erroneously reversed the finding on Issues Nos.5 and 6.
7. Conversely, the learned counsel for the respondents contends that the appellants had no superior right of pre-emption qua the suit-land because, the defendant-respondent purchased the land froth the same Khasra number through mutation attested on 16-4-1990. The land was pre-empted and the plaint of the suit filed by the appellants was rejected vide judgment and decree dated 17-10-1991 Exh.D.3 and Exh.D.4. The plaintiffs-appellants have not produced Abdur Rehman's and Ghulam Rasul, who signed the notice Exh.D.1, therefore, Talb-i-Ishhad as required in.
Section 13 of the Punjab Pre--emption Act; 1991 has not been proved in this case. The learned Additional District Judge rightly reversed the findings on Issues Nos.5 and 6 and accepted the appeal of the respondent.
8. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. It is well-settled that a pre-emptor must continue to retain his superior rights on three stages i.e. The date of sale, the date of suit and the date of the decree of the Court. See case reported as Sher Zaman v. Gul Zaman PLD 1971 Azad J&K 101, and Sahib Din v. Ch. Fazal D.1 Khan PLD 1967 Azad J&K 7. The respondent purchased the land measuring 1 Kanal and 8 Marlas in Khata Khatooni No. 10/34 according to Register Haqdaran-e--Zamine for the year 1985-86, situated in Mauzia Rangra, Tehsil Shakargarh, District Sialkot, and the Suit No. 241 was filed on 7-10- 1991, pre-empting the above-stated land the plaint was rejected vide order dated 7-10-1991. Exh.D.3 and Exh.D.4 according to which the respondent purchased land measuring 1 Kanal and 8 Marlas through Mutation No.213 sanctioned on 16-4-1990. In this view of the matter the respondent-- defendant was not co-sharer in the suit-land at the time of impugned sale on 14-4-1990. The suit of the plaintiff-petitioner could have beer, decreed on the basis of having land adjacent to the suit-land being Shafi-e-Jar on the basis of Akas Shajra Exh.P.5 and Exh.P.6. The finding on Issue No.6 recorded by the learned Civil Judge has been erroneously set aside by the learned First Appellate Court without keeping in mind that, respondent-defendant was not a co-sharer in the suit-land. It is being so, the finding of the learned Additional District Judge on Issue No.6 is set aide and is reversed.
9. The learned Additional District Judge has observed that in the plaint, time date and place regarding the announcement of Talb-i-Muwathibat is not mentioned. He on the basis of the judgment of the Honourable Supreme Court reported as 1996 SCMR 436, observed that it is necessary to mention time, date and place regarding the announcement of Talb-i-Muwathibat. It was further observed that the name of witnesses who attested the notice dated 30-4-1990 have not been mentioned in the plaint. Receipt of sending the notice through registered cover has not been produced. The respondent has not produced any acknowledgement receipt to show that the notices were received by the respondent. Mentioning time, date and place regarding Talb-i- Muwathibat, in the plaint is not of much consequence. See case of Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCM R 958. However, Additional District Judge was correct in observing that the receipt of acknowledgement should have been placed on the record, to show that the registered notice was sent by the plaintiff to prove Talb-i---Ishhad. The appellant produced only one witness to prove Talb-i-Ishhad. It is mandatory requirement of section 13 that registered notice be attested by two truthful) witnesses. It is true that the notice Exh.D. 11 has been signed and attested by two witnesses namely Muhammad Yaqoob son of Qaim Din and Ghulam Rasul son of Rahim Bakhash, but the other witness namely Ghulam Rasool has not been produced.
In this view of the matter, the requirement of section 13 of the Punjab Pre-emption Act has not been fulfilled. It being so, the learned Appellate Court was right in reversing the finding on Issue No.5. No irregularity or illegality has been committed by the learned Additional District Judge, by reversing the finding on Issue No.5. The judgment and decree passed by the learned Civil Judge, has, been rightly set aside by the learned Additional District Judge vide his judgment and decree dated 28- 4-1997, while accepting the appeal. Resultantly, this appeal fails and is dismissed.