MAULVI ANWARUL HAQ, J.--- Vide registered sale-deed dated 20.4.1994 purchased suit land measuring 49 kanals, 4 marlas for a consideration of Rs.6,00,000/-. On 4.9.1994 the petitioners filed a suit for possession by pre-emption. According to them the land had, in fact, been sold for Rs.3,00,000/-. They claimed to be co-sharers as well as owners of adjacent land. Performance of talbs was pleaded. The respondents filed a written statement denying the said allegations.
Following issues were framed by the learned Trial Court:,
(1) Whether plaintiffs have superior right or preemption qua the defendants? OPP
(2) Whether talabs were properly performed by the plaintiffs? OPP.
(3) Whether suit is barred by -law> of limitation? OPD.
(4) Whether ostensible sale price of Rs.60,0000/- was bona fide fixed and paid by the defendants?
OPD
(5) If issue No. 4 its not proved in affirmative, what was the market value of suit property at the time of sale? OP Parties.
(6) Whether suit is incorrectly valued for purposes of Court-fee and jurisdiction, if so, what is correct valuation? OPD
(7) Whether plaintiffs are estopped by their act and conduct to file the present suit? OPD
(8) Whether the defendants are entitled to incidental charges and improvements as asserted in the written statement? OPD
(9) Relief. evidence of the parties was recorded. Vide judgment and decree dated 15.9.1996 the learned Trial Court. Found under issue No. 1 that the superior right of preemption of the petitioners extends only to 12 kanals, 10 marlas. Issue No. 3 was answered against the respondents. Under issue No. 4 it was held that the respondents paid Rs.6,00,000/- for the land. Issues Nos. 6 and 7 were found against the respondents. Under issue No. 8 it was found that they have spent Rs.60,000/ as incidental expenses on the registration, etc. Of the sale. Issue No. 2 pertaining to talbs was decided against the petitioners. The suit was accordingly dismissed. A first appeal was filed by the petitioners which was heard by a learned ADJ, Attock. Before him only findings on issue No. 2 were questioned. No other finding was questioned by any of the parties. The learned ADJ confirmed the findings on issue No. 2 and dismissed the appeal on 26.2.1998.
2. Learned counsel for the petitioners contends. That the evidence on record has been mis-read.
According to him there was no major discrepancy in .The statements of the witnesses qua Talb-e- Muwathibat. He has relied upon the case of Abdul Qayum through Legal Heirs V. Mushk-e-Alam and others (2001 CLR 654). Regarding the notice as well, according to the learned counsel, the learned Courts below acted without jurisdiction in discarding the same on unfounded grounds.
Learned counsel for the respondents, on the other hand, supports the impugned judgments and decrees with reference to the reasoning given by the learned lower Courts in -their respective judgments.
3. 1 have gone through the copies of the records, with the assistance of the learned counsel for the parties. Now, I find that in para 2 of the plaint it has been stated that the moment the petitioners came to know about the sale they made a Talb-e-Muwathibat and thereafter sent a notice of Talb-e-lshhad under registered cover A.D. Now the learned counsel for the respondents contends that it was necessary for the petitioners to have given all the requisite details as to time, place and date as also names of witnesses and the informer. The contention loses sight of the law declared by a larger Bench of the Hon'ble Supreme Court of Pakistan in the case of Haji Noor Muhammad v.
Abdul Ghani and 2 others (2000 CLR 781). The said pleadings are, therefore, sufficient in order to enable the petitioners to prove the making of talbs. Now before I proceed further I may note here that the relevant witnesses of the petitioners were examined on 26.3.1995. Now PW-1 is Niaz Hussain Shah petitioner. He states that 11 months ago he and his brother (the other petitioner) met their maternal uncle Fazal Hussain Shah at his Tubewell while going to Shahbazpur. Fazal Hussain Shah told them to the land from the joint khata has been. Sold to the respondents by Qazi Mahboob vendor. He and his brother immediately stated that this will cause Zarar and they will file a pre-emption suit. The said Fazal Hussain Shah appeared as PW-2 and stated that 11 months ago his nephews i.e. Petitioners met him at his Tubewell and he informed them of the sale and they immediately declared that they will file a pre-emption suit. Anwar Din is PW-3. He states that while that was sitting on the Tubewell of PW-2 11 months ago the petitioners came there and were informed of the sale by PW-2 and they stated that they will file a pre-emption suit.
4. Now the learned Trial Court has observed that the date, time and place of performance of Talb- e-Muwathibat is not clear. He has then stated that there is a difference about the numbers of days whereafter the notice was served after the knowledge. The learned ADJ has observed that the said PW-1 stated that notice was sent 4/6 days after the Talb-e-Muwathibat. PW-2 has stated that notice was sent 14 days after the knowledge. While PW-3 has stated that the notice was sent 8 days thereafter. This is the precise reason recorded by the learned Courts below for holding issue No. 2 against the petitioners in the matter of Talb-eMuwathibat. To my mind both the learned Courts below failed to read the evidence. As stated by me above, the statements were recorded on 26.3.1995. All the three witnesses have stated that it was 11 months ago that the information was conveyed to the petitioners and they made the Talb-e-Muwathibat. This takes us back to 27.4.1994, which is the point of time on which the knowledge is stated to have been acquired vide contents of notice Mark 'A' which is dated 4.5.1994. Now the learned Courts below also failed to take note 01 the fact that PW-2 Fazal Hussain Shah was 65/66 year of age while Anwar Din PW-3 was 70/71 years of age when their statements were recorded.
5. The said case of Abdul Qayum through Legal Heirs becomes fully attracted to the facts of the present case. Now the discrepancies relied upon by the learned Trial Court and the learned Peshawar High Court while stated by the learned Court of first appeal to be minor are mentioned in para 9 of the judgment. I deem it proper to 'reproduce the same here:- "Evidence of Abdul Qayyum plaintiff, Ghulam Muhammad PW.3 and Ghulam Qasim PW.4 in relation to Talabs was rejected by the learned Judge of the High Court by observing that there were material discrepancies as to time when Talb-e-Muwathibat was made, for at one place, it was stated that the same was made at Deegarwala whereas at the other place it was stated that it was made in the evening time and that Abdul Qayyum petitioner and Ghulam Muhammad PW.3 stated that they went to Lakki for preparation and issuance of notice after five days whereas Qasim PW.4 stated that the same was got prepared on the next day."
Honb1e Mr. Justice Munir A. Sheikh expressing the leading opinion of the Bench observed as follows:- "In our view it was not a case of any discrepancy or contradiction in the evidence of these three witnesses as regards the time and place of making Talb-e-Muwathibat or issuance of notice in relation to Talb-e-lshhad. The combined effect of reading the statements of these witnesses clearly was that Talb-eMuwathibat was made on 4.5.1991 on which date all the witnesses are unanimous. As regards time whether it was made at Deegarwala or in the evening, there may be a minor variation that the same could not be treated to be contradiction of each other. The witnesses were making statements after lapse of considerable period from the date of Talb-e- Muwathibat; therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of variations which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence."
It was further stated that, the question as to on which date the notice was got prepared was immaterial, as for the above-mentioned reasons, witnesses were not expected to remember each and every date after such a long time and such variations are always held to be natural for they are not to give statement as tape-recorders. The memory of each and every human being is not the same, therefore, it has been proved on record substantially that requirements of performance of both the talabs had been fulfilled and proved. The evidence of the witnesses, therefore, could not have been rejected on the ground of minor variations by holding that the same were discrepancies of material nature. The Hon'ble Supreme Court allowed the appeal of the pre-emptores and restored the decree passed by the learned Court of first appeal.
6. Now as stated by me above, all the three witnesses are unanimous that talb was made 11 months before their statements were recorded. This being so, the fact that one witness said that the notice was given after 6 days, the other stated 4 days and the 3rd stated 8 days would not be relevant once it is proved that the notice was, in fact, given in accordance with law. Respectfully following the said dictum of the Hon'ble Supreme Court I do hold that both the learned Courts below have acted without any lawful authority in rejecting the testimony of the said three witness for the reasons stated by them in their respective judgments.
7. Now coming to the Talb-e-Ishhad, PW-1 stated that the notice, the copy whereof is Mark 'A' was given and it was attested by Fazal Hussain Shah and Qazi Anwar Din. He further stated that he appended the postal receipts with the plaint, PW-2 Fazal Hussain Shah and PW-3 Anwar Din stated that the notice Mark A was attested by them. Now the copy of the said notice is Mark 'A'. It is dated 4.5.1994. According to it, the petitioners received the information six days ago and made Talb-e- Muwathibat and are now making Talbe-Ishhad. The notice is signed by the petitioners and is attested by the said PW-2 and PW-3. The postal receipts and A.D. Receipts were produced and exhibited in evidence. Now Abdul Majid respondent No. 2 is DW1. He stated in the examination-in- chief that the other respondents are his brothers and they purchased the suit land. He asserted that he IL e. The witness) did not receive any notice. In cross-examination he was confronted with the receipts and he stated that he had not received the same but he cannot say whether Abdul Qadeer, the other respondent, his brother had received the notice or not. In view of the said denial of the said respondent, the petitioners produced Habib Khan PW-6 the local Postman. He stated on oath that he was handed over six registered envelopes on 5.5.1994. He knows all the three respondents personally and that they had received them and he had made the entry in the Postman Book brought by him. The copies were produced as P.18 to P.24. This witness was not cross-examined at all.
8. Now, it stands proved that the original of the said notice Mark 'A' was duly posted and it reached the addressees i.e. The respondents.
9. Now coming to the reason for discarding entire evidence of Talb-e-lshhad. According to the learned Courts below the petitioners did not seek permission to lead secondary evidence and as such the said copy Mark A' is not admissible. I find that the said observations are wholly unfounded.
The matter of secondary evidence is governed by Article 76 of the Qanun-e-Shahadat Order, 1984.
Now the said Article 76 permits a party to give secondary evidence of the existence or contents of a document, inter alia, in the following case:- "(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court; or of any person legally bound to produce it and when after the notice mentioned in Article 77 such person does not produce it."
Now if the requirements of this clause are met, any secondary evidence of the contents of the document is admissible. However, Article 77 lays a pre-condition for leading secondary evidence regarding the documents mentioned in the said clause (a) of Article 76 of the Qanun-e-Shahadat Order, 1984. Under Article 77, secondary evidence of the contents of the documents in Article 76(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his Advocate, such notice to produce it as is prescribed by law." Now the proviso to the said Article 77 absolve the documents mentioned in clauses (1) to (6) from the applicability of the said condition of service of prior notice and the very first document so exempted is when the document is to be proved is itself a "notice"
10. I have already observed above that in the present case the service of notice under registered cover A.D. Stands proved on record. It thus sufficiently appears that the respondents were in possession of the original document. Article 76 permits leading of any secondary evidence of the contents of documents mentioned in the said clause (a) while Article 77 exempts a party seeking to prove a notice form serving a prior notice in its terms. This being so, the copy of Mark 'A was very much admissible in evidence and the learned Courts below have committed an error of jurisdiction in proceeding to discard the same on the assumption that some permission was required by the petitioners to produce the said document.
11. Having thus examined the records, I find that both the learned Courts below have mis-read the evidence on record while proceeding to dismiss the suit of the petitioners to the extent they had the superior right of pre-emption as held by the learned Trial Court, by discarding the said evidence of Talb-e-Muwathibat as well as Talb-e-lshhad having been duly made by the petitioners.
12. This civil revision is accordingly allowed. Both the judgments and decrees of the learned Courts below are set aside. The suit of the plaintiffs/petitioners is decreed in their favour and against the respondents/defendants to the extent of 12 kanals and 10 marlas detailed as follows:-
(i) Khasra Nos. 1957 and 1958 measuring 8 kanals, 19 marlas.
(ii) Khasra No. 1937 measuring 3 marlas.
(iii) 3 kanal, 8 marlas in Khara Nos. 1912 and 1928, 1931 and 1932.
(iv) Suit to the extent of the rest of the suit land is dismissed.
(v) The plaintiffs/petitioners shall make a deposit of proportionate price and incidental charges total being Rs.1,69,900/- in the Trial Court on or before 24.11.2003. However, if they have already deposited some amount by way of zare-soam, this amount will stand adjusted accordingly. In case the deposit is not made or adjusted on or before 24.11.2003, the suit shall stand dismissed with costs throughout. For the moment the parties are to left bear their own costs. .