MAULVI ANWARUL HAQ, J.--- Vide Mutation No. 943 attested on 27-6-1993, the petitioners purchased the suit-land measuring 22 Kanals, 1 Marla mentioned in detail in the plaint for a consideration of Rs. 2,00,000. On 23-10-1993 the respondent filed a suit for possession of the said land by pre-emption. According to him a sum of Rs.1,50,000 was paid as sale price and the amount shown in the mutation is fictitious. He claimed to be co-sharer in the suit-land, owner of land adjacent thereto and also sharing common passage and the source of irrigation. Performance of Talb was alleged. In their written statement the petitioners insisted that they have paid a sum of Rs.2,00,000 for land which amount was fixed in good faith. The other allegations were denied. It was specifically pleaded that parties have under mutual arrangement exchanged the possession of the lands purchased by them respectively. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has got superior right of pre-emption? OPP
(2) Whether the sale price of Rs.2,00,000 were fixed in good faith and actually paid?
(3) What was the market value of the property at the time of sale? OPPS
(4) Whether the plaintiff has not asserted the requisites of Talb-eMuwathibat etc.? OPD
(5) Whether the plaintiff has no cause of action? OPD
(6) Whether the defendants are entitled to get special costs under section 35-A, C.P.C. From the plaintiff, if so, to what extent? OPD
(7) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD (8)Whether the defendants incurred any expenses in connection with the completion of the sale, if so, to what extent? OPD (9)Whether the description of the property is incorrect, if so, what is the correct description and its effect? OPD (10)Whether the suit is not maintainable in its present form? OPD
(11) Whether the suit is time-barred? OPD
(12) Relief.
' Evidence of the parties was recorded. Learned trial Court decreed the suit vide judgment and decree dated 29-10-1995 subject to payment of a sum of Rs.2,00,000 as price and further a sum of Rs.20,200 as incidental charges. A first appeal filed by the respondent was dismissed by a learned Additional District Judge, Jhang, on 16-4-1996.
2. This civil revision has been filed by the petitioners vendees to question the said judgments and decrees and has been ordered to be heard by this Bench by the Honourable Chief Justice.
3. Learned counsel for the petitioners contends that the evidence has been misread by the learned Courts below inasmuch as it stood proved on record that the respondent was fully aware of the sale as he entered into an 'arrangement with the petitioners for mutual exchange and adjustment of the lands respectively purchased by two parties. The plea of the respondent that he acquired =knowledge on 13-10-1993 and made Talb-iMuwathibat on the said date does not stand prove on record. As a corollary notice of Talb-i-Ishhad sent on 14-10-1993 is violative of the provision of section 13 of the Punjab Pre-emption Act, 1991. Learned counsel for the respondent, on the other hand, while unable to rebut the said factual aspect of the case insists that learned Federal Shariat Court in the case of Muhammad Isma il Qureshi and others v. Government of Punjab and others (PLD 1991 FSC 80) had directed the addition of the words "subject to his ability" in section 13(3) of the Punjab Pre-emption Act, 1991. The precise plea of the learned counsel is that Talbs are now to be made at the convenience- of the pre-emptor. Further contends with reference to the case of Muhammad Mal Khan v. Allah Yar Khan 2002 SCMR 325 that lenient view of the matter be taken in the matter of making of Talb. He is of the view that the contention now being raised by the learned counsel for the petitioners is beyond their pleaded case.
4. We have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. We have reproduced material contents of the respective pleadings of the parties above. Now we find that in para.4 of the plaint it was stated by the respondent that he came to know about the sale on 13-10-1993 when Lal Khan, Anwar Khan and Zulfiqar Khan informed him, whereupon he made a declaration that he has superior rights of pre- emption and he will exercise the same. The same day he approached the petitioners alongwith said witnesses and. Made a demand for transfer of the land. Then he served a notice on 14-10-1993.
The case set up by the petitioners is that the respondent has net made Talb-i-Muwathibat and Talbi-Ishhad and that the parties had by mutual agreement exchanged the possession of the lands respectively purchased by them. Now the said Muhammad Anwar, mentioned in the plaint, appeared as D.W.4. He was put the said version in the cross-examination. He responded as follows:-- {{URDU TEXT}}
5. Now respondent appeared as P.W.S. He admitted in his cross-examination that he was present in Court when his witnesses were being examined including Anwar P.W.4. He admitted that he had purchased the land from Chailas. Thereafter he suffered lapse of memory and was unable to state as to whether he purchased the land through two transactions one by registered deed and the other by mutation. He was, however, constrained to admit that his purchase was subsequent to the purchase of land by the petitioners. He admitted that lands purchased by both the parties are in the same Khata. He did not remember that the petitioners had been his tenants. He also admitted that he got the possession of the land which he purchased from Chailas 2/4 days after the sale.
6. Mutation of sales of both the parties are available on record. Mutation 943, whereby the petitioners purchased the land is Exh.P.13 and it was attested on 27-6-1993. The respondent purchased the land vide Mutation No.949 which is Exh.D.3 on record and this niutation was entered on 8-9-1993 and attested on 30-9-1993. Now according to P.W.4 the partition was effected and areas were exchanged immediately after the sale in favour of the respondent. According to the respondent himself the possession was delivered 2/4 days after the sale in his favour.
7. Now Muhammad Mul htar one of the petitioners appeared as D.W.1. He has stated in detail what has alread:+' been stated by the respondent and his witnesses. According to him the respondent was fully aware of the sale in favour of the petitioners, as he had also purchased the land thereafter in the same Khata from the family of Muhammad Akr am Chaila, M.P.A. The lands so purchased were partitioned under mutual arrangement with the respondent, whereafter respondent took over the possession of his land. The proceedings of partition took place on 6-9- 1993. Sardar Ahmad retired Consolidation Patwari appeare I as D.W.2 to corroborate D.W.I.
8. Now in the said factual background, by no stretch of imagination can it be held that respondent W hile making the said partition/exchange of p ossession of the areas respectively purchased by the parties was now aware of the sale of the land, subject-matter of the said partition, in favour of the petitioners. Ln the said admitted factual background if e plea taken in the plaint and sought to be proved at the trial that respondent came to know about the sale on 13-10-1993 is wholly incorrect. According to own showing of the said witnesses of the respondent an 3 respondent himself matters were settled wi thin 2/4 days after the sale in his favour. This is a point of time definitely before 13-10 1993. There is no plea and there is no evidence that Talb-i-Muwathibat was made.
9. Now the impugned judgment failed to take notice of the said fact glaring on the face of record.
In fact the same do not find any mention at all in two impugned judgments. We, therefore, do agree with the learned counsel for the petitioners that the learned Courts below have misread the evidence on record rather failed to read the same while deciding the question of Talb.
10. As to the said first contention raised by the learned counsel, suffice it to say that judgment in the case of "Muhammad Ismail Qureshi" being relied upon by the learned counsel was appealed against it. Vide judgment of the Shariat Appellate Bench of the Honourable Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province (PLD 1994 SC 1), section 13(3) of the Punjab Preemption Act, 1991, was not found repugnant to the injunction of Islam.
11. We have examined the said judgment in the case of Muhammad Mal Khan being relied upon by the learned counsel for the respondent and we find that same does not at all support him. Now in the said case learned trial Court proceeded to decree the suit on the solitary statement of the pre- emptor regarding making of Talb-i-Muwathibat. Learned Court of appeal set aside the said decree and appellate order was affirmed by this Court. Honourable Supreme Court upheld the said judgment of this Court by observing that in the absence of any explanation by preemptor as to why the witness named was withheld, legal presumption would be that in case the witness had been produced, his deposition must have been against the pre-emptor. Nothing, therefore, turns in favour of the respondent qua the said judgment. So far as the said last contention of the learned counsel is concerned, we have already referred to the pleadings in some detail above and we find that it is duly pleaded case of the petitioners that valid Talbs have not been made.
12. For the reasons stated abode, we reverse the findings of the learned Courts below on Issue No.4 and hold that .Talb-i-Muwathibat had not been proved. This being so, the suit was liable to be dismissed. The civil revision is accordingly allowed. Both the judgments and decrees passed by the learned Courts below impugned herein are set aside and suit filed by the respondent is dismissed, leaving the parties to bear their own costs.