' This civil revision assails judgments and decrees dated 14-2-2002 and 23-4-2003 passed by Civil Judge and Additional District .Judge, Gujranwala, dismissing petitioner's suit and appeal, respectively.
2. A short factual backround of the case is that respondent purchased 41 Kanals 15 Marlas of land situated in Mouza Chehal Kehna, Tehsil and District Gujranwala through a registered sale-deed dated 21-12-1992, which was pre-empted by the petitioner by filing a suit for possession through pre-emption asserting that sale in question was struck for an amount of Rs.2,86,988 but in order to defeat his pre-emptive rights, the sale price was inflated to Rs.8,35,000. He claimed his superior rights on the bagis of Shafi Jar and Shafi Khalit, as against the respondent. Petitioner pleaded in his plaint that he on acquiring knowledge of this sale, immediately exclaimed his intention to have it through pre-emption and in this manner performed Talb-e-Muwathibat. Petitioner also asserted performance of Talb-e-Ishhad in presence of two truthful witnesses, by sending notice in writing as required by law to the respondent and on his refusal, he filed suit in hand, thereby discharging his obligation of performance of Talb-e-Kashumat.
3. Respondent being a defendant in the suit denied assertions in the plaint and pleaded that petitioner has not fulfiled the requirements of Talbs. Besides it he claimed the sale in question for an amount of Rs.8,35,000 with improvements on the land in question before filing of suit.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence, on the basis of which learned trial Judge vide his judgment and decree dated 14-3-2003 dismissed the suit of thepetitioner mainly on Issue No.2 relating to Talbs.
4. Petitioner aggrieved of the decision of the ,trial Court dated 14-3-2003 filed an appeal before the Additional District Judge, Gujranwala, but remained unsuccessful, as it was dismissed vide judgment and decree dated 23-4-2003. He has now come up in revisional jurisdiction of this Court for setting aside concurrent judgments and decree of both the Courts below.
5. Learned counsel for the petitioner submits that the petitioner had explained performance of Talbs in his plaint, which was duly proved byhim by production of witnesses in whose presence those were performed, but both the Courts below have illegally non-suited him. He also contends that the petitioner gained knowledge of the sale on 27-12-1992 and on gaining knowledge, he immediately expressed his intention of filing suit in hand, whereafter he gave a notice of Talb-e- Ishhad on 31-12-1992 and then filed the suit on 5-4-1993. In this manner he substantially complied the provisions of section 13 of the Punjab Preemption Act, 1991 and thus findings returned by the two Courts below, in contrary to the-evidence on the record, are liable to be reversed. Learned counsel for the petitioner further elaborated his arguments by saying that non-mentioning of date, time and place of performance of Talb-e-Muwathibat in the plaint is not fatal to the suit because he had already detailed the required data in his plaint. In this behalf, he relied on the case of Haji Noor Muhammad through his Legal Heirs v. Abdul Ghani and 2 others (2000 SCM R 329), Altaf Hussain v.
Abdul Hameed alias Abdul Majeed through Legal Heirs and another (2000 SCM R 314). Learned counsel for the petitioner also contends that requirement of giving details of Talbs is only a procedural requirement, which could in no manner be construed as mandatory and in this behalf he relied on the case of Abdul Malik v. Muhammad Latif (1999 SCM R 717). It is also case of the petitioner that his notice of Talb-e-Ishhad sent to the respondent, within the stipulated time, contains performance of Talb-eMuwathibat, which was duly corroborated by his witnesses and statement on oath of the petitioner, he could not graded, as done by the two Courts below. He relied on the case of Muhammad Gul v. Muhammad Afzal (1999 SCM R 724) and Ghulam Hussain v.
Imam Din and 2 others (2003 CLC 379) besides the case of Muzaffar Khan v. Muhammad Amir (2002 M LD 118).
6. Conversely, learned counsel for the respondent refuted the submissions of the petitioner and supported the concurrent judgments and decree of the two Courts below that petitioner in para. 5 of his plaint simply said that on gaining knowledge of sale, he expressed his intention of filing the suit without mentioning date, time and place of gaining knowledge. According to him, Talb-e- Muwathibat being the startingpoint for performing of other Talbs, should have been mentioned with all clarity and details and his failure in this behalf amounts to nonperformance of Talbs, extinguishing his pre-emptive rights, if any In this behalf he relied on the case of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315), wherein, according to him, the earlier view of the Honourable Supreme Court taken in the case of Altaf Hussain (supra) was distinguished and it was held that performance of Talb-eMuwathibat, Talb-e-Ishhad and Talb-e-Khasumat are related to some phenomenon of limitation and as such it is important for the plaintiff to tell date, time and place of performance of Talb-e-Muwathibat in the plaint, so as to prove the immediate exercise thereof. It has further been contended on the basis of para. 8 of the plaint wherein cause of action in favour of the petitioner/plaintiff is alleged to have been arisen on 21-12-1992, the date of sale.
Here as well it is not mentioned that the cause of action partially accrued to him on the aforementioned date and this fact also goes to prove that he was aware of the sale on the date it was made. He further adds to his arguments by saying that petitioner was required to pay court- fee on the sale price as well as the improvements of Rs.5,00,000 but non-payment of Court -fee as required by law, makes the plaint an invalid document. He in this behalf relied on the case of Muhammad Iqbal v. Mst. Ghulam Ruqia (2003 M LD 138). It is also one of the assertions of the respondent that P.W.7 himself stated that he visited the vendee/respondent after giving written notice which means that Talb-e-Ishhad was made after the notice was sent which is also a violation of law. In this behalf reliance was made on Haji Noor Muhammad through his Legal Heirs (supra) urged non-performance of Talb-e-Ishhad. This time learned counsel for the respondent referred to postal receipts Exh.P.11, which according to him, is dated 13-1-1992 and shows its performance after 15 days from the date of knowledge claimed by the petitioner. He also referred to statement of P.W.1 who is a postman and admitted that he never went to Rahwali area, where the Mouza in question is situated. He has asserted that misreading or non-reading of evidence has not been pointed out by the learned counsel for the petitioner, without which concurrent findings of facts cannot be disturbed in revisional jurisdiction and this Court cannot substitute its own viewpoint after reappraisal of evidence.
7. I have deeply considered the respective submissions of the learned counsel for the parties and have examined the record. I have also scanned the law applicable. Petitioner in his entire plaint has not mentioned date, time and place of gaining knowledge of sale or regarding performance of Talb-e-Muwathibat, especially paras. 5 and 8 of the plaint, where such narration should have been made, are thirsty of such narrations. Starting point of the entire activity of fulfilment of other Talbs, as required to be performed by section 13 of the Punjab Pre- emption Act, 1991, is Talb-e- Muwathibat and if its date, time and place is not mentioned in the plaint, one cannot determine performance of Talb-e-Ishhad to be within time or not. According to my humble view, if this fact is not pleaded in the plaint, besides determination as noted above, pre-emptor will be handicapped to lead evidence which is to be produced according to the pleadings of the parties. A requirement of law which if not fulfilled, right of the pre-emptor stands extinguished and cannot be termed as procedural requirement, giving the pre-emptor a latitude to undo the mandatory requirements of section 13 of the Punjab Pre-emption Act. All the three Talbs are needed to be made in terms of section 13 of the Act ibid, and interlinked. Most important and foremost Talb is Talb-e-Muwathibat from where the statute, fixes time for making other Talbs like Talb-e-Ishhad and Talb-e-Khasumat.
In this manner as well a pre-emptor must be required to mention with all details and clarity, the performance of Talb-e-Muwathibat. In a similar case of Haji Muhammad Saleem (supra), it was mandated by the Honourable Supreme Court of Pakistan, distinguishing earlier view taken in the case of Altaf Hussain (supra) that it is important for the plaintiff to tell date and time of performance of Talb-e-Muwathibat in the plaint so as to prove the immediate exercise of his right and also as to whether he performed Talb-e-Muwathibat in the same and before the disposal of meeting where he gained the knowledge. This alighted judgment of the Honourable Supreme Court is a complete answer to the submissions of the petitioner touching performance of Talbs and mentioning of details, thereof, in the plaint. Petitioner had two opportunities of detailing these things in the plaint; firstly, while drafting para. 5 and secondly, while narrating para. 8 thereof, but he did not opted to do so. It remains a fact that the details of performance of Talb-e-Muwathibat by the petitioner were also not mentioned by him the notice of Talb-e-Ishhad sent to the respondent. Now without these details in, plaint or notice of Talb-e-Ishhad, petitioner produced Mr. Ahmed Ali Virk, Advocate as P.W.5, who deposed that on 27-12-1992 Dr. Muhammad Aslam Awan, who is a nephew of the petitioner, came to him in presence of Messrs Muhammad Asmat Chatha, Mian Muhammad Sadiq and Malik Nazir Ahmed Awan, Advocates, and told that Lal Din and others have sold their land to Sajid Butt, whereupon petitioner said that his land is adjacent and he will preempt it through suit. Similar is the statement of P.W.6 who stated that at about 12/1-00 noon on .17-12-1992 information was received by the petitioner from Dr Muhammad Aslam Awan, in presence of Messrs Ahmed Ali Virk and Muhammad Asmat Chatha, Advocates. Though statements of these two P.Ws. Are discrepant with regard to presence of persons at the time of marking of Talb-e-Muwathibat because ,P.W.5 stated that Malik Nazir Ahmed Awan, Advocate, was also present at that time, but his name has not been mentioned by P.W.6. Likewise time of making of Talb-e-M-iwathibat was not mentioned by P.W.5, whereas itwas mentioned by P.W.6 as noon time, yet it is not understandable that petitioner who has so close relations with a number of members of the bar of Gujranwala that they opted to come into the witness-box in his support, but did not guide him to give details of Talb-e-Muwathibat in the plaint and notice of Talb-e-Ishhad, which is also shown to have been drafted in presence of three eminent lawyers of Gujranwala Bar, who have also signed this notice as witnesses, thereto. P.W.7 plaintiff himself while in the witness-box, though stated performance of Talb-eMuwathibat on 27-2-1992, but time mentioned by him was 12-45 or -1-00 p.m. In presence of Messrs Ahmed Ali Virk, Mian Muhammad Sadiq and Muhammad Asmat Chatha, Advocates. He also did not name Malik Nazir Ahmed Awan, Advocate, to be present at that time, whereas his name was mentioned by P.W.5. P.W.7 has also stated that he gave notice of Talb-e-Ishhad (Exh.P.3) under a registered postal cover, which was refused to be received by the respondent and thereafter he went to him along other witnesses on 9-1-1993 to make Talb-e- Ishhad. Argument of learned counsel for the respondent also not without worth that the petitioner after sending notice performed Talb-e-Ishhad on 9-1-1993, which is after the time fixed by law and in this manner his reliance on Haji Noor Muhammad through his Legal Heirs (supra) is quite relevant. I have also examined receipt (Exh.P.11), which is dated 3-1-1993, but on account of excessive ink on the stamp it appears to be of 13-1-1993. Whatever be the date on this receipts, since I am not convinced that Talb-e-Muwathibat was performed on 27-12-1992 for the reasons detailed above, this receipt need not be read with much effort.
8. I respectfully following the view taken by the Honourable Supreme Court of Pakistan in the case of Haji Muhammad Saleem (supra), which being latest, distinguishing the earlier judgments, is to be followed, and on the basis of what has been discussed above. Conclude that both the Courts below have rightly concluded that petitioner could not prove performance of immediate Talb-e- Muwathibat and non-mentioning of date, time and place in the plaint is an active effort to leave it open for proof till the time evidence is recorded but during course of evidence discrepancies noted above, in the statements of P.Ws.5, 6, and 7, are material, which go to the root of the case and negate assertion of the petitioner in this behalf. No misreading or non-reading of evidence is shown to have been committed by both the Courts below, who have also not committed any illegality or irregularity, in absence of which no interference is called for in the revisional jurisdiction of this Court. This revision petition has no merit in it and is consequently dismissed, with no order as to costs.