Mst. BASHIRAN BEGUM vs NAZAR HUSSAIN and another

' MUHAMMAD QAIM JAN KHAN, J.---This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the judgment and decree of the Lahore High Court, Bahawalpur Bench dated 6-3-2006 vide which Civil Revision No,534-2001/BWP filed by the respondents was accepted, the judgments ad decrees of the two Courts below i,e, the Senior Civil Judge, Rahimyarkhan and Addl. District Judge, Rahimyarkhan dated 25-1-2001 and 14-7-2001, respectively were set aside and as a result the suit filed by the pre-emptor/petitioner was dismissed with no order as to costs.

2. Short facts of the case are that the petitioner, Mst. Bashiran Begum filed a suit against the respondents, Nazar Hussain and Sardar Muhammad for a decree of possession by pre-emption of land measuring 34 kanals, 3 marlas situated in village Aslam Abad Tehsil and District Rahimyarkhan mentioned in detail in the heading of the plaint, at a price of Rs,1,70,000. It was further alleged in the plaint that one Munir Ahmad son of Nemat Ali, a brother of Mst. Bashiran Begum, the plaintiff/petitioner sold the suit property to the defendants/respondents vide Mutation No,348 attested on 15-10-1991 at a price of Rs,1,70,000 which price was accepted and admitted by the plaintiff/petitioner; that the plaintiff/petitioner had got superior right of pre-emption, on all the three grounds i,e, Shafi-Shareek, Shafi-Khaleet and Shafi-Jarr, than the vendees/defendants who were strangers; that the plaintiff/petitioner was informed regarding the impugned sale on 20-1- 1992 and after making Talb-e-Muwathibat she sent notices to the defendants/respondents on 27- 1-1992 through registered post acknowledgement due in presence of the witnesses; that several times the defendants/respondents were asked to accept the sale consideration and hand over the suit property to the plaintiff/petitioner but they refused. So the present suit.

3. The defendants/respondents vehemently contested the suit by filing their written statement and on the divergent pleas of the respective parties, the trial Court framed almost five issues apart from relief. It is to be noted that original issues were framed on 5-11-1992 and issue No,4-A was struck on 12-12-1998.

4. After recording the evidence of the respective parties, hearing their learned counsel and going through the record, the trial ,Court decreed the suit in favour of the plaintiff/petitioner against the defendants/respondents leaving the parties to bear their own costs vide judgment and decree dated 25-1-2001.

5. Dissatisfied with the said judgment and decree, defendants/respondents preferred appeal in the Court of Addl. District Judge, Rahimyarkhan and the said Court after hearing the learned counsel for the respective parties and going through the record dismissed the same leaving the parties to bear their own costs on 14-7-2001. Aggrieved by this judgment and decree the defendants/respondents filed Civil Revision No,534/2001/BWP before the Lahore High Court, Bahawalpur Bench and a learned Judge in Chambers of the said Court after hearing the respective counsel for the parties and perusal of the record accepted the revision petition, set aside the judgments and decrees of the two Courts below dated 25-1-2001 and 14-7-2001, respectively and as a result thereof dismissed the suit of the pre-emptor/petitioner with no order as to costs. Hence this Civil Appeal.

6. Learned counsel for the appellant mainly argued that mentioning of date, place and time in the plaint regarding making of Talb-iMuwathibat, is not the requirement of law and stressed that the dictum laid down in the case of Haji Noor Muhammad v. Abdul Ghani and 2 others (2000 SCM R 329) shall apply. He placed reliance on the case of Altaf Hussain v. Abdul Hameed alias Abdul Majeed through legal heirs and another (2000 SCM R 314).

7. Learned counsel for the defendants/respondents contended that the pre-emptor/petitioner was bound to disclose in her plaint the date, place and time of making Talb-i-Muwathibat and also in the notice of Talb-i-Ishhad and that the requirement of making Talb-i-Muwathibat and Talb-i- Ishhad was not fulfilled as required by the law and the pre- emptor/petitioner in her statement while appearing in Court as P. W.6 had not uttered even a single word in this regard. He also made reference to the cases of Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977), Akbar Ali Khan and others v. Mukamil Shah and others (2005 SCM R 431) and Azmatullah through L.Rs, v. Mst. Hameeda Bibi and others (2005 SCM R 1201).

8. We have heard the learned counsel for the respective parties and with their help have also perused the available record. The High Court has met with all these references with sound and plausible reasons. It is to be noted that this controversy has been finally settled by a Full Bench of this Court comprising five Hon'ble Judges in Civil Appeal No,1951 of 2000 decided on 12-12-2006 in case of Mian Pir Muhammad and anothers v. Faqir Muhammad through L.Rs, and others (PLD 2007 SC 302), wherein all these authorities and references have been plausibly discussed and it was held that in a suit for pre-emption mentioning of date, place and time of making Talb-i- Muwathibat, in the plaint, is mandatory because in the absence of proper date, place and time, the time given in section 13(3) of the Punjab Pre-emption Act, 1991 (hereinafter referred as the Act) for making Talb-i-Ishhad which is 14 days, cannot be correctly calculated. It is necessary that as soon as the pre-emptor acquires knowledge of sale of pre-empted property, he would make immediate demand about his desire and intention to assert his right of pre-emption without slightest loss of time and after making Talb-iMuwathibat in terms of section 13(2) of the Act, the pre-emptor has another legal obligation to perform i,e, Talb-i-Ishhad as soon as possible after making of Talb-i- Muwathibat, but not later than two weeks from the date of knowledge/performance of Talb-i- Muwathibat. The mentioning of date, place and time in the plaint in a suit for pre-emption is mandatory regarding Talb-i-Muwathibat because from such date the time provided by the statute for making of Talb-i-Ishhad i.e 14 days, can be calculated. If there is no mention of date, place and time of knowledge about sale and making of Talb-i-Muwathibat, then it would be very difficult to give effect to section 13(3) of the Act and there is every possibility that instead of allowing letter of law to remain in force, the pre-emptor may attempt to get a latitude by claiming any date of performance of Talb-i-Muwathibat in his statement in court and then on the basis of the same, try to justify the delay, if any, occurred in the performance of Talb-i-Ishhad. Performance of both these Talbs is a sine qua non for getting a decree in a pre-emption suit. This Court has approved the view that plaint wherein date, place and time of making of Talb-i-Muwathibat and date of issuing notice of Talb-i-Ishhad in terms of section 13 of the Act, is not provided, it would be fatal for the preemption suit. The Hon'ble Bench of five Judges has dissented from the cases of Haji Noor Muhammad 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) and has approved the view expressed in the cases of Haji Muhammad Saleem v. Khuda Bakhsh (PLD 2003 SC 315) Fazal Subhan and 11 others v. Mst. Sahib Jamala and others (PLD 2005 SC 977). According to the dictum laid down by the larger bench of this Court mentioned above, the requirement of Talbs with requisite details in the plaint-is also essential even in the pending cases.

9. In the case in hand, in para. 5 of the plaint, the plaintiff has only mentioned the date which is 20- 1-1992 but no other information regarding knowledge about sale and making of Talb-i-Muwathibat, has been provided by her. Strangely enough she while appearing in Court as C PW 6, has not uttered even a single word regarding the time, place and date of making Talb-i-Muwathibat. In the light of the above mentioned dictum of this Court, the judgment of the High Court is based on sound reasons and needs no interference. Appeal in hand is accordingly dismissed with no order as to costs.