By this judgment Civil Revision No.1686 of 2000 is being disposed of which has emerged from the judgment passed by Mr. Sohail Nasir, Additional District Judge, Gujrat, Camp at Kharian, dated 24- 6-2000, whereby an appeal filed by the petitioner/plaintiff against the judgment and decree dated 13-12-1995 of the Court below was dismissed by which the suit for possession through pre-emption filed by the petitioner was dismissed.
2. Some relevant facts of the case are that the suit land measuring 10 Kanals, 8 Marlas situated in the area of Village Bolani, Tehsil Sarai Alamgir was sold by its owner Mst. Saima Begum vide Mutation No.4118. Dated 25-10-1993 to the defendants on receipt of knowledge of the sale in the same Majlis the petitioner/plaintiff announced to exercise his superior right of pre-emption and, thereafter, while making the Talab-i---Isshad he carried two truthful witnesses named Mushtaq Ahmad and Iftikhar Hussain to the-defendant and asked him to deliver the possession after receipt of the sale-price and in proof of that he sent a notice registered AD to the defendant and for Talb- i-Khasoomat filed the said suit before the learned trial Court. This suit was contested by Zafar Iqbal defendant by filing the written statement wherein some preliminary objections were raised including that the Talabs as required by the law have not been made and on merits the sale price of Rs.30,000 was maintained.
2. In view of the pleadings of the parties the following issues were framed:-- (1)Whether the plaintiff has got right of pre-emption to the suit property? OPP (2)Whether the plaintiff made "Talabs" as required by law? OPP (3)Whether the ostensible sale-price Rs.30,000 was bona fide fixed or actually paid as sale price of the suit land? OPP (4)If the above Issue No. 3 is not proved in the affirmative, then what was the market value of the suit land at the time of the sale? OPP (5)Whether the suit is for partial pre-- emption? OPP (6)Whether the suit is time-barred? OPD (7)Whether the suit is not maintainable in its present form? OPD (8)Whether the suit is not properly valued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation? OPD (9)Whether the plaintiff has got no cause of action as well as locus standi to bring the suit? OPD (10)Whether the defendant is entitled to recover improvement charges of Rs.10,000? OPD (11)Whether the defendant is entitled to receive incidental charges of Rs.4,000? OPD (12)Relief.
3. Oral as well as documentary evidence of the parties was recorded. The learned trial Court observed that the plaintiff has failed to allege in his plaint, the date, time and place in which he came to know about disputed transaction and from whom he was informed and in the presence of which persons he performed the Talb-i-Muwathibat. The discrepancy between the statement of the pre-emptor and his brother Iftikhar (P.W.2) on question of Talb-i-Muwathibat was referred and reliance was placed on the case reported in Abdul Qayyum Khan v. Musa Khan and 5 others 1995 CLC 729. And it was observed that the plaintiff has failed to perform the Talabs in accordance with the procedure prescribed for their performance, therefore, Issue No.2 was decided against the pre- emptor, consequently the suit was dismissed vide judgment dated 13-12-1995. The same was the fate in appeal as the learned First Appellate Court also arrived at this conclusion that the appellant failed to fulfil the Talabs in accordance with law. Resultantly the judgment and decree passed by the learned lower Court was upheld and the appeal was dismissed. Hence this revision petition.
4. I have heard the arguments advanced by the learned counsel for the parties and have gone through the available record attached with the file.
5. Learned counsel for the petitioner/plaintiff argued that the Courts below misread the oral as well as documentary evidence of the petitioner/plaintiff with the result that both the Courts below arrived at a wrong conclusion which amounts to miscarriage of justice. He argued that it has been settled in the celebrated judgements of the superior Courts that neither the time, nor the place and date with regard to Talb-i-Muwathibat are required to be mentioned in the plaint and if there is anything mandatory in nature it is only to the extent of immediate demand as soon as the pre- emptor comes to know about the sale in dispute and when the petitioner sent the notice to the vendees and the date of knowledge was disclosed therein alongwith this fact that the pre-emptor announced in the same Majlis to exercise his superior right of pre-emption and, thereafter, while making Talb-i-Ishhad in presence of Mushtaq Ahmad and Iftikhar Hussain he asked the vendees to deliver the possession after receipt of the sale --price, hence the notice was sent on the next day i.e. 3-2-1994 attested by two truthful witnesses. Further argued that he had fulfilled the necessary requirements at very early stage and so far as the time, date and place in connection with Talb-i- Muwathibat or Talb-i---Ishhad are concerned these things have to be done at the stage of the trial, which requirements were made by the petitioner in the evidence, therefore, it was wrongly held that the petitioner failed to fulfil the Talabs as required by law. He referred to the cases reported in Nadir Khan v. Itebar Khan 2001 SCMR 539 and Dr. Muhammad Ayub Khan v. Haji Noor Muhammad 2002 SCMR 219, in support of his arguments as being the latest citations on the subject.
6. On the other hand the learned counsel for the respondent submitted that the petitioner/pre- emptor had failed to fulfil the requirements of Talabs in accordance with law even in the evidence, therefore, the judgments passed by the Courts below based upon correct analysis of evidence call for no interference. He referred to the cases reported in Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Muhammad Ehsan v. Amanatullah 2000 SCMR 1447; Sajid Zaman and 2 others v. Muhammad Yaqoob 1999 YLR 2716 (Lahore); Muhammad Azad Khan v. Talib Hussain 1998 MLD 1077 (Lahore); Haji Qadar Gul v. Moembar Khan and another 1998 SCMR 2102; Nazir Ahmad v.
Aziz Ahmad 1998 MLD 253 (Lahore); Dost Muhammad v. Khizar Hayat 1998 MLD 253 (Lahore); Muhammad Rafique v. Ghulam Murtaza 1998 MLD 292 (Lahore); Muhammad Khan v. Mst. Rasool Bibi 1998 MLD 1591 (Lahore); Ghulam Haider v. Lal 1999 CLJ 358; Mst. Azeem Khatoon and others v.
Muhammad Sadiq and others 1995 MLD 1893 (Lahore); Muhammad Din v. Khalid Masood Ahmad Khan and others 1995 CLC 256; Abdul Ghias v. Syed Haji Taj Muhammad and 42 others PLD 1995 Quetta 1 and Mst. Akbari Begum v. Nadeem Ahmad and 2 others 1993 CLC 353 (Karachi) in support of his contentions.
7. It is an admitted position of law under section 13 of the Punjab-Pre-emption Act, 1991 that the right of pre-emption of a person is extinguished if such person has not Talb-i-Muwathibat and Talb-i-Ishhad and Talb-i-Khasoomat. Talb-i-Muwathibat means immediate demand of pre- emtpor in the meeting in which he comes to know about the sale by declaring his intention to exercise his right of pre-emption and in this regard if he himself speaks even a single sentence reflecting on his intention and that the basic requirement of Talb-i-Ishhad is that when the pre- emptor has made Talb-i-Muwathibat, he shall send a notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee as early as possible but not later than two weeks from the date of knowledge.
If for the sake of arguments in connection with Talb-i-Isshad some particulars about the notice of Talb-i-Ishhad could not be provided in the plaint it would not be fatal for the claim of the pre- emptor but when he brings on record his oral as well as documentary evidence to prove the making of demands as mentioned above, the evidence must be very convincing and consistent so that there could be no doubt about fulfilment of these requirements. If in accordance with the facts and circumstances of each case there arises a doubt about fulfilment of demands as mentioned above, the right of pre-emptor shall be extinguished as provided in subsection (1) of section 13 of the Act ibid.
8. Now here in the instant case the date 2-2-1994 was given in the notice Exh.P.2 as the date for knowledge and for making immediate demand in the same Majlis and that thereafter to go alongwith two truthful witnesses to the vendees and to repeat the demand in their presence.
Actually When some particulars are provided in the plaint or in the notice the oral evidence brought on the record during the trial should be very consistent. If the contents of this notice dated 3-2-1994 are scanned it would appear that there is confusion about this fact as to who informed the pre-emptor or where he was present and if for the sake of arguments this shortcoming is ignored at least in the evidence, then the claim of the pre-emptor should be very sound.
Now here in the istant case Iftikhar Hussain P.W.2 stated that he came to know about sale on 2-2- 1994 at Bolani Adda at 8/9 a.m. And he came to the house of the plaintiff at Sarai Alamgir and informed about the sale whereupon the pre-emptor immediately announced to exercise his right of pre-emption, but when Fayyaz-ur-Rehman's pre-emptor appeared as P.W.4, he stated that he came to know about sale on 2-2-1993 on which he went to Halqa Patwari to enquire about the sale and on the next day at Bolani he told to his brother that he shall file a suit for pre-emption. Their statements would show as to what is the material difference in making the Talb-i-Muwathibat and if any effort is made to ignore this difference there would be no convincing reasons by which this difference could be omitted and when this difference is taken into consideration, certainly it would appear as if Talb-i---Muwathibat was not made by the pre-emptor. There may be mistake of tongue to state about the date and knowledge but how this difference can be covered when the contentions of both the parties are totally different. The impact of this difference is also on Talb-i- Ishhad because the impact is that it is not known that as to when actually the pre--emptor had come to know about the sale. Meaning thereby the arguments advanced by the learned counsel for the petitioner carry no force and that the judgments passad by the Courts below call for no interference.
9. When some material facts about talabs as mentioned above are provided in the notice or in the plaint or in the evidence then the evidence of the pre-emptor should be very consistent otherwise in case of doubt in making of Talabs as required by law he would fail in his claim of superior right of pre-emption.
10. In view of the discussion above, the judgments passed by the learned Additional District Judge, Gujrat Camp at Kharian dated 24-6-2000 and that of the trial Court dated 13-12-1995 are upheld and this revision petition being without merits is hereby dismissed, however, with no order as to the costs.