' This second appeal is directed against the judgment and decree, dated 21-4-1996 passed by the learned District Judge, Sialkot, whereby the petitioner/plaintiff s appeal against the judgment and decree, dated 20-3-1994 passed by the learned Civil Judge Ist Class, Pasrur, dismissing his suit for possession through pre-emption, was dismissed with costs throughout.
2. It may be mentioned here that during the pendency of the appeal, the Appellate Court framed the additional Issue No,7-A, which reads as under:--- "7-A. Whether the plaintiff made Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law before filing of suit? OPP ' After framing of the additional issue, the learned Appellate Court vide its order, dated 6-4-1995 remanded the case back to the trial Court for adjudication on the additional Issue No,7-A. The trial Court was directed to record the evidence of both the parties on the additional issue, give findings and then send back the file to the learned Appellate Court for adjudication of the appeal.
3. The trial Court recorded the additional evidence produced by the parties and vide its judgment, dated 24-10-1995 again returned the verdict that the plaintiff had failed to make Talb-i- Muwathibat and Talb-iIshhad as required by law.
4. The learned Appellate Court while dismissing the appeal affirmed the findings of the learned trial Court recorded by it in its judgment, dated 24-10-1995.
5. The relevant facts are that the suit-land measuring 53 Kanals, 11 Marlas, detailed in the plaint, was purchased by the defendant/ respondent from Nazir Ahmad etc. On 4-9-1989 through Mutation No,362. The deceased petitioner/plaintiff (legal representatives impleaded on 23-10-2001) instituted the present suit for possession though preemption on 13-9-1989, claiming his superior rights on the ground of being Shafi-e-Sharik, Shafi-e-Khaleet and Shafi-Jar. It was alleged that the land was purchased by the defendant for consideration of Rs,1,07,000 but a fictitious sale price of Rs,1,70,000 was got mentioned in the mutation, that as soon as he came to know about the sale, he claimed superior rights and made Talb-i-Muwathibat and contacted the defendant and thereafter he in the presence of two witnesses, met the defendant and made Talb-i-Ishhad but the defendant refused to hand over the suit-land to the plaintiff. Hence, the suit.
6. The respondent/defendant contested the suit with the preliminary objections regarding the lack of cause of action, non-maintainability of the suit, lack of proper court-fee, partial pre-emption and estoppel. The averments of the plaint were denied and it was further asserted that the plaintiff had not sent any legal notice to the defendant before filing the suit and that the necessary Talbs were not made. The trial Court framed the following issues:--- Issues:
(1) Whether the plaintiff lacks cause of action to file the present suit? OPD
(2) Whether the can is not maintainable in view of preliminary objection No, 2? OPD
(3) Whether suit is undervalued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPD
(4) Whether the defendant is entitled to recover charges of mutation if so, what amount? OPD
(5) Whether the suit is for partial pre-emption? OPD
(6) Whether the plaintiffs estopped by his word and conduct to file the suit? OPD
(7) Whether the plaintiff has got superior right of pre-emption than defendant/vendee? OPD
(8) Whether ostensible sale price Rs, 1,70,000 was fixed and paid in good faith? OPD
(9) If issue No, 8 above was not proved, what was the correct value at the time of sale? OPP
(10) Relief.
7. After framing the issues and after recording the evidence, the learned trial. Court vide its judgment and decree, dated 20-3-1994 dismissed the suit with no orders as to costs.
8. The Appellate Court vide its order, dated 6-4-1995 held that the trial Court did not frame any issue with regard to Talbs and as the trial Court had dismissed the suit primarily on the ground that the requisite Talbs were not proved, therefore, it was in the interest of justice that with regard to Talbs, an additional issue should have been framed and the parties should have been afforded reasonable opportunity to lead evidence on this issue. The Appellate Court, therefore, framed the additional issue No,7-A, reproduced above, and remanded the case back to the trial Court for adjudication on the additional issue and kept the appeal pending. The trial Court thereafter, as mentioned above, recorded the evidence and vide its judgment, dated 24-10-1995, returned its verdict on Issue No,7-A against the plaintiff. The Appellate Court dismissed the appeal with costs throughout, on 21-4-1996, hence, this second appeal.
9. I have heard the learned counsel for the parties and have also seen the record.
10. It may be mentioned here straightway, that the Appellate Court framed the additional Issue No,7-A wrongly and illegally because under the relevant law the plaintiff was required to prove, only Talb-e-Ishhad and not Talb-e-Muwathibat. However, no serious prejudice was caused to the parties by incorporating Talb-e-Muwathibat also alongwith Talb-e-Ishhad, in the above additional Issue No,7-A. The reasons for holding that under the relevant law, the plaintiff was required to prove Talb-eIshhad only, are that the suit was instituted on 13-9-1989 and under section 35(2) of the Punjab Pre-emption Act, 1991, in the suits which were pending between 1st day of August, 1986 and 28th March, 1990, the pre-emptors are required, only to establish that they had made Talb-eIshhad in the presence of two truthful witnesses. Subsection (2) of section 35 of the Punjab Pre-emption Act, 1991, no doubt, has been declared to be against the Injunctions of Islam by the Hon'ble Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1. However, the said judgment has taken effect from 31-12-1993 and is not retrospective in operation in Bashir Ahmad v. Nazir Ahmad Khan 2000 SCMR 1850 the leave has been granted by the Honourable Supreme Court to consider this question. In Bashiran Bibi v.
Muhammad Kashif and others PLD 1995 Lah. 200, the learned Single Judge of this Court held that prior to taking effect of Supreme Court decision on specified day, existing law in terms of Article 203-H of the Constitution, would apply to the decision of cases. The pre-emption suit in the said case was instituted on 15-11-1989. i,e, during the interregnum. The learned Judge held that the same was governed by section 35(2) of the Punjab Pre-emption Act, 1991. It was further held that the abovesaid decision of the Supreme Court would, however, apply prospectively. Similarly, in Muhammad Usman and another v. Khushi Muhammad and two others 2001 YLR 2908, it has been held by a learned Single Judge of this Court that in section 35(2) of the Punjab Pre-emption Act, 1991, it is clearly mentioned that fora suit of pre-emption, instituted between 1-8-1986 and 28-3- 1990, it shall be sufficient for a pre-emptor to establish that he has made Talb-i-Ishhad in presence of two truthful witnesses, therefore, he is not required to prove in strict terms, the issuance of notice of Talb-iIshhad, in accordance with the provisions of section 13(3), which requires that a notice has to be issued to the vendee within two weeks after making first demand i,e, Talb-i-Muwathibat, attested by two truthful witnesses under registered cover Acknowledgement Due. It has further been-field that the provision of section 13(3) of the Punjab Pre-emption Act, 1991' would not retrospectively apply so as to non-suit the plaintiff for non-fulfilment of the requirement of above section, when it was' not even the law in' force.
11. Respectfully following the law laid down by this Court in Bashiran Bibi v. Muhammad Kashif and others (supra) and Muhammad Usma n and another v. Khushi Muhammad and 2 others (supra), it is held that the ]pre-emptors, in the pre-emption suits, pending between the 1st day of August, 1986 and 20th March, 1990 (both days inclusive) are not required to prove the making of Talb-e- Muwathibat and in terms of section 35(2) of the Punjab Pre-emption Act, 1991, are required only to prove the making of Talb-e-Ishhad, in the presence of two truthful witnesses and the plaintiffs/pre- emptors are not required to prove the making of Talb-e-Ishhad in accordance with the provision of section 13(3) of the above Act of sending a notice to the vendee under registered cover Acknowledgment Due.
12. In the instant case, the learned trial Court, after the remand, after the framing of additional Issue No,7-A, after recoding the fresh evidence, has held that the petitioner has failed to prove Talb-e- Ishhad because he did not serve any notice upon the defendant and there is no evidence that postal facility was not available to the plaintiff. In view of the law discussed in paras. 10 and 11 of this judgment, the trial Court illegally held that the petitioner/plaintiff was required to prove Talb- eIshhad by sending notice to the defendant whereas, as discussed above, under section 35(2) of the Punjab Pre-emption Act, 1991, it was sufficient for the petitioner/pre-emptor to establish that he had made Talb-e-Shad in the presence of two truthful witnesses. The learned trial Court has not discussed the evidence produced by the petitioner in this regard, in its judgment, after the remand of the judgment, dated 24-10-1995. The Appellate Court in Para. No,5 of the impugned judgment has illegally held that "it is well-settled that the plaintiff is required to disclose date, time and place of Talb-e-Muwathibat in the plaint" and "in the instant case, the plaintiff failed to disclose such particulars about any of the two demands in the plaint". In Nadir Khan v. Isobar Khan (2001 SCMR 539) it has been held that the plaintiff cannot be non-suited merely on the ground that the time and place of the making of the Talbs and names of the witnesses have not been specifically disclosed in the plaint. It is now a settled law that the petitioner can prove the making of the necessary Talbs through evidence and each and every detail of making such Talbs need not be given in the plaint. In regard to the making of Talb-e-Ishhad, the Appellate Court has incorrectly and illegally held that the witnesses Zafar Ullah and Sana Ullah (P.W.1/1 and P.W.2/2) had not alleged that the plaintiff had claimed to be a pre-emptor or that the plaintiff had declared that he had also given first demand earlier and that "Mere offer of price is not a sufficient proof of Talb-e- Ishhad". The judgment of the Appellate Court not only suffers from non-reading of evidence in this regard but also suffers from an illegality by holding that the witnesses of Talb-e-Ishhad are to allege the superior right of pre-emption of the plaintiff/pre-emptor. P.W.1/1 Zafar Ullah has clearly stated that he alongwith the plaintiff and Sana Ullah went to the defendant and offered him the sale price because the plaintiglad a right of pre-emption {{URDU TEXT}} but the defendant refused.
P.W.2/2 Sana Ullah has also stated that he alongwith the plaintiff and Zafar Ullah, P.W. Went to the defendant and the plaintiff offered the sale price to the defendant as he had declared his Shifa ( 64: ) but the defendant refused. The above mentioned shows that both the witnesses have stated that they are the witnesses of the offer of the sale price by the plaintiff to the defendant. It is not the requirement of law that the witnesses of Talb-eIshhad have to allege superior right of pre-emption of the plaintiff. They are merely witnesses of making of this Talb by the plaintiff to the defendant.
The Appellate Court has illegally disbelieved the depositions of P.W.1/1 and P.W.2/2 by calling these depositions as improved versions, ignoring the fact that on finding a defect in the previous round of litigation of non-framing of the necessary issue regarding the making of Tabs, the Appellate Court had itself framed the additional Issue No,7-A on 6-4-1995 and had remanded the case back to the trial Court for recording fresh evidence, under the said issue and, therefore, the Appellate Court in law, could not ignore the statements of these witnesses recorded by the trial Court, in the remand proceedings on this specific issue.
' The above mentioned shows that the judgments of both the Courts below suffer from non- reading of evidence produced by the plaintiff after the remand. The said evidence has not even been discussed by applying wrong law.
13. In view of the above mentioned, this appeal is accepted, the judgments and decrees passed by the Courts below are set aside and the case is remanded back to the trial Court for fresh decision in accordance with law, discussed above. The parties are, however, left to bear their own costs.