MUHAMMAD RIAZ and another vs GHULAM NABI and another

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been preferred against the judgment dated 10-12-2004 passed by the learned Judge in the Lahore High Court, Lahore in a civil revision arising out of suit of pre-emption.

2. The relevant facts giving rise to this petition are that the respondents claiming superior right of pre-emption, pre-empted the sale dated 10-4-1996 of the land, subject-matter of the suit. The petitioners/vendees resisted the suit and the learned trial Judge in the light of pleadings and evidence brought by the parties on record, decided the issue relating to the performance of Talb against the respondents and dismissed the suit vide judgment dated 30-9-2003. In appeal filed by the respondents, a learned Additional District Judge while reversing the finding of the learned trial Judge on the relevant issue allowed the appeal vide judgment dated 24-12-2003. The judgment and decree passed by the Appellate Court was further affirmed by the High Court in the civil revision.

3. Learned counsel for the petitioner has contended that the Talbs were not performed in accordance with the requirement of section 13 of Punjab Pre-emption Act, 1991 but the Appellate Court as well as the High Court by misreading the evidence on record, wrongly reversed the finding of the trial Court on a question of fact whereas learned counsel for the respondents opposing this petition, argued that the concurrent findings of the two Courts on question of fact even if erroneous cannot be interfered and in any case, there was no misreading or non-reading of evidence in the present case.

4. We having perused the record with the assistance of the learned counsel for the parties, find that Nazam Din and Ghulam Nabi (P.W.9) in their statements have stated that they on coming to know about the sale of the land on 16-5-1996 (3rd of Jaith) made declaration for exercise of right of pre- emption and after fulfilling the requirement of Talb-e-Muwathibat and Talb-i-Ishhad, filed the suit.

Nazam Din in his statements has stated that suit was filed on 29-5-1996 (16th of Jaith) and on the same day, notice of Talb-e-Ishhad was given. The perusal of the statement of Ghulam Nabi would show that suit was filed on 29-5-1996 and notices of Talb-e-Ishhad; Exhs.P.1. And P.2 were sent to the vendee through registered post on the date of filing the suit. The date on the postal receipts, (Exhs.P.3 and P.4) was not legible and it was also not clear that these receipts actually pertained to the notices (Exhs.P.1 and P.2). The plaintiff has not produced any person from Postal Department to prove this essential fact to resolve the controversy. The petitioners in their written statement, specifically denied the service of notice and performance of requirement of Talb-i-Ishhad for exercise of right of pre-emption. The sale took place on 16-5-1996 and according to the oral evidence, pre-emptor having obtained knowledge of sale on the same day, performed the requirement of Talb-e-Muwathibat in presence of witnesses. The notices, Exhs.P.1 and P.2, bear the date as 16-5-1996 whereas Nizam plaintiff in his examination-in-chief stated that these notices were sent through Court and again in cross-examination said that notices (Exhs.P.1 and P.2) were given on the day of filing suit. In view of the admission of pre-emptor regarding giving the notice of Talb-eIshhad on the date of filing the suit, the contention of the learned counsel for the respondent that notice was given on 29-5-1996, stood negated. The law is that Talbs must be performed within the statutory period provided in law and performance must also be proved through the evidence.

In the present case, the pre-emptor placing reliance on a copy of the notice of Talb-i-Ishhad along with the two postal receipts, claimed performance of Talb-i-Ishhad without proving through the evidence that these postal receipts produced in Court factually pertained to the dispatch of notice of Talb-e-Ishhad. The evidence produced by the pre-emptor regarding the performance of Talb- e-Ishhad in view of his own admission of giving notice of Talb-e-Ishhad on the day of filing of suit, would be of no significance and presumption would be that either no notice was sent or it was sent on the day of filing suit which is beyond the prescribed period and the requirement of Talb-e- Ishhad was not fulfilled in accordance with law. The Appellate Court as well as revisional Court having misread the evidence drew a conclusion in utter disregard to the law and facts of the case on the question of performance of Talbs. Learned counsel for the petitioners has raised no other point.

5. We in the light of foregoing discussion find that respondents have not been able to prove fulfillment of requirement of Talbs in accordance with law to exercise their right of pre-emption.

We, therefore, convert this petition into appeal and by setting aside the impugned judgment, restore the judgment of the trial Court. The appeal stands allowed with no order as to costs.