Ghafoor son of Mehmood, Caste Araien, resident of Dhoke Saharan, Tehsil Phalia, District Gujrat, sold his land measuring 55 Kanals and 12 Marlas, the detail of which is given in the head-note of the plaint, to Ali Muhammad son of Qasam, Caste Jat Rawn, resident of Dhoke Jauree, Tehsil Phalia, District Gujrat (defendant) vide registered sale-deed dated 24-1-1988 in consideration of Rs.4,00,000 but in order to deprive the pre-emptor to exercise the superior right of pre-emption, the sale price of Rs.6,25,500 as fake price was mentioned in the sale-deed. While claiming to have superior right of pre-emption on the basis of Shafi Shark Shaft Khalit and Sharik Jar, Muhammad Mushtaq and Muhammad Ghias, Caste Araien, resident of Dhoke Jauree, Tehsil Phalia, District Gujrat (plaintiffs) filed suit for possession through pre-emption before the learned trial Court on 18- 1-1989. They stated in the plaint that as soon as they came to know about sale, they in presence of the witnesses namely Muhammad Din son of Ibrahim, Qaim Din son of Ghulam Qadir, Munshi son of Ruliya, Abdul Rahim son of Qasim, Caste Araien, residents of Dhoke Saharan, in the same Majlis announced to exercise their superior right of pre-emption and carried the above mentioned witnesses to the house of Ali Muhammad defendant and asked him to deliver the possession of the suit-land on receipt of the original sale price, otherwise they shall exercise their superior right of pre-emption, but despite this the defendant refused in this connection. This suit was contested by Ali Muhammad defendant by filing the written statement, wherein, some preliminary, objections including that the Talabs as required under the law have not been fulfilled, were raised and on merits it was mentioned that the suit --land was sold in the consideration of Rs.6,25,500 and paid to the vendee before the Registrar and then the plaintiffs despite knowledge of the same, have filed the suit with delay.
2. In view of the pleadings of the parties, the following issues were framed:-- ISSUES (1)Whether the plaintiffs have made valid Talabs before filing this suit? OPP (2)Whether the plaintiffs have a superior right of pre-emption against the defendant? OPP (3)Whether the suit is not maintainable in view of P/O No. 1? OPD (4)Whether the defendant is entitled for recovery of the incidental charges etc., if so, to what extent? OPD (5)Whether the defendant effected improvements over the suit-land, if so at what time, to what extent and its effect? OPD (6)Whether the plaintiff has waived his superior right of pre-emption, if any? OPD.
(7)Whether Rs.6,25,500 the ostensible sale price was actually paid or the same was fixed in good faith? OPD (8)If issue above is not proved, what was the market value of the suit-land at the time of its sale?
OPP (9)Relief.
3. The evidence of the parties was recorded. While disposing of Issues Nos. 1 and 2, the learned trial Court observed that the plaintiffs have failed to prove through cogent, corroborative and reliable evidence that they have fulfilled the requirement of law or that they have completed the Talb-i- Ishhad and Talb-i-Muwathibat and so far as the superior right of pre-emption of the plaintiffs is concerned, the copy of the record of right for the years 1983-1984 Exh.P.1 proves that they are co- sharers in the disputed land, but since they have failed to prove that they have validly claimed their right of pre-emption, therefore, they have no superior right of pre--emption against the defendant consequently, both the issues were decided against the plaintiffs. So far, the sale of the suit-land was concerned, it was observed that the suit-land was sold in consideration of Rs.6,25,500. Issues Nos.4 and 7 were decided in favour of the defendant while Issue No.5 was decided against the plaintiffs. Any how, the suit of the plaintiff was dismissed vide judgment dated 12-11-1992.
4. While disposing of the appeal, the learned Appellate Court observed that the suit-land was sold on 24-1-1988 and the suit was filed on 18-1-1989, but now the provision of section 35 of subsection
(2) of the Punjab Pre-emption Act, 1991, which provided the limitation for the suits pending between 1-8-1986 to 28-3-1990 have been found repugnant to the Injunction of Islam and the present suit was filed beyond limitation period of four months and no decree was passed in this case till 31-12- 1993, as the suit was dismissed on 22-11-1992, therefore, no decree can be passed in favour of the plaintiffs at present and being so, the suit of the plaintiff is barred by time, as regards, superior right of pre--emption, the observation of the learned Appellate Court was same as advanced by the learned trial Court, but in case of fulfillment of Talabs, it was observed that the plaintiffs came to know about sale after 10/11 months despite of the fact that they are co-sharer in the Khata and are living on the Dera which is situated on the land, where the suit property is situated and that the vendor is real brother of the plaintiffs, therefore, Talabs as required by law, were not made by the plaintiffs. Consequently, the appeal was dismissed vide judgment dated 8-5-1994.
5. I have heard the learned counsel for the parties and taken into consideration their contentions in the light of the record.
The learned counsel for the petitioner argued that the Talb-i-Ishhad was made in this case orally because the suit was instituted prior to the promulgation of the Pre-emption Ordinance, that the finding of the learned trial Court on Issue No.2 was in favour of the plaintiff, but Issue No.1 was decided against the plaintiffs. Anyhow, Issue No.1 could not be connected with Issue No.2 that the repugnancy of section 35, subsection (2) of the Pre-emption Act, 1991, had to start from 31-12-1993, therefore, the period of limitation to be counted in case of this suit was one year under section 35 of subsection (2) of the Pre-emption Act, 1991, as on the date of filing of the suit, the law as provided in section 35 of subsection (2) as mentioned above was in existence and applicable and that the learned Courts below wrongly disbelieved the evidence of the plaintiffs produced on the question of Talbs.
6. Whereas, the learned counsel for the respondents submitted that the judgments passed by the learned Courts below are in accordance with law. The arguments advanced by the learned counsel for the petitioner are devoid of any force, therefore, the judgments passed by the learned Courts below call for no interference.
7. After hearing the learned counsel for the parties, the point for determination is as to whether the suit of the petitioners/plaintiffs was filed within the period of limitation and that as to whether the required Talbs were made in accordance with law.
The admitted position is that the suit was filed on 18-1-1989 in connection with the sale dated 24-1- 1988. Meaning thereby, the suit was filed during the period from 1-8-1986 to 28-3-1990. At that time, the Punjab Pre-emption Act, 1913, had seized to have effect. Punjab Pre-emption Ordinance, 1990, providing period of limitation for four months from the date of registration of sale-- deed. It came into force on 22-5-1990. If this provision of law is taken into consideration, the suit was filed after four months of the registration of the sale-deed.
Anyhow, after enforcement of Punjab Pre-emption Act, 1991, section 35 provided this concession that the suits instituted or pending between 1st day of August, 1986 and 28-3-1990, wherein the right of pre-emption was claimed as, available under this Act shall be decided afresh upon an application by the aggrieved person and the period of limitation shall be one year and it shall be sufficient if the pre--emptor establishes that he had made Talb-i---Ishhad in presence of two truthful witnesses. Meaning thereby, for the above mentioned suits, the period of limitation was one year and that only Talb-i-Ishhad was to be made.
8. Later on, the situation arose as a result of which it was found that section 35, subsection (2) of the Punjab Pre-emption Act, 1991, is repugnant to Injunction of Islam, but it had to take effect from 31-12-1993. Being so, the suit filed on 18-1-1989 when the --ale was executed on 24-1-1988, the suit was within time as period of limitation was one year as provided by section 35, subsection (2) of Punjab Pre-emption Act, 1991. Reliance is placed on Mst. Bashiran Bibi v. Muhammad Kashif Khan and others PLD 1995 Lah. 200.
But despite this, the suit was defective because right of pre-emption was exercisable only in case of Zaroorat and to avoid Zarar which facts were not mentioned in the plaint as provided by subsection (2), section 6 of the Punjab Pre-emption Act, 1991. If for the sake of arguments, it is believed that the judgment of Honourable Supreme Court of Pakistan reported in Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 Supreme Court would apply prospectively and that the suit is within limitation even then, an omission to mention Zarar and Zaroorat in the plaint would make the suit as defective.
Now, if the period of limitation is believed as one year for the suits filed between 1-8-1986 to 28-3- 1990 then the pre--emptor is bound to prove that he made Talb-i---Ishhad in presence of two truthful witnesses as provided by subsection (2), section 35 of Punjab Pre-emption Act, 1991. Now, in the instant case, the perusal of the evidence of the plaintiff on the question of Talb-i-Ishhad would show that Muhammad Ghias plaintiff as P.W.1 did not provide any specific date, time and place, when he carried his witnesses to the defendant. Moreover the plaintiff's evidence on the question of Talb-i-Ishhad is contradictory and unreliable. Therefore, if for the sake of arguments, the suit is believed to be within time, even then on the question of Zarar and Zaroorat and that of fulfillment of Talb-i-Ishhad, this suit was defective and could not proceed further.
19. In view of above discussion, the judgments passed by the learned Courts below call for no interference and this petition being without merits is hereby dismissed.