MUHAMMAD YOUNAS Versus Mst. MEHR AFZOON

The instant revision petition has been tiled to call in question the judgment and decree dated 22‑2‑1994 passed by the learned District Judge, Haripur whereby he while reversing the finding of learned Senior Civil Judge, Haripur in Civil Suit No.483/1 set aside the judgment and decree dated 1‑3‑1993 which was passed in favour of the petitioner and the suit of the respondent was decreed.

2. The breviate of the matter is that Mst. Mehr Afzoon respondent had filed a suit for the enforcement of her preemptive rights over a land measuring 1 Kanals, 1 Marla fully described in the heading of the plaint. The sale transaction covered by the registered Deed No. 1623 attested on 18‑10‑1989 was subjected to the right of pre‑emption by the respondent. The suit was contested by filing the written statements and the pleadings of the parties generated as many as 10 issues including the relief. The parties adduced their evidence as they willed and ultimately the suit of the respondent was dismissed by the learned trial Court chiefly on the point that 'Talb‑i‑Ishhad' was not proved according to law. The impugned judgment and decree of the learned trial Court was assailed by way of an appeal before the learned District Judge, Haripur which was accepted on 22‑2‑1994 by setting aside the judgment and decree of the trial Court and the suit of the respondent was decreed on payment of Rs.5,306.86. Now the judgment of the learned Appellate Court was brought under attack through the instant civil revision. It may be mentioned that the learned trial Court after discussing the evidence on the points of 'Talb‑i‑Muwathibat' and Talb‑i‑Ishhad' recorded his findings that the plaintiff‑respondent had successfully proved the making of ' Talb‑i‑Muwathibat' but ' Talb‑i‑Ishhad' was not proved. The petitioner was satisfied with the judgment of the trial Court and did not file any cross‑objection/appeal 'for challenging the findings of the learned trial Court on the question bf ' Talb‑i‑Muwathibat' rendered in favour of the respondent.

3. The learned counsel appearing in support of the revision petition has argued that the learned Appellate Court had committed legal error in giving its findings to the effect that the respondent has successfully proved the making of ' Talb‑i‑Ishhad' and in this regard the evidence was not properly appreciated by the learned Appellate Court resulting into the miscarriage of justice. He urged that since the respondent had not produced the original of notice of 'Talb‑i‑Ishhad' and had only produced the photostat copy of the notice without obtaining prior permission from the trial Court in terms of Articles 76 and 77 of the Qanun‑e‑Shahadat, 1984, therefore, it cannot be said that the essential requirement of ' Talb‑i‑Ishhad' was properly carried out by the respondent. He also urged that the respondent did not personally enter the witness‑box to record her statement. If she had appeared personally there was every likelihood that her testimony could have been shattered through cross‑examination by the petitioner. The learned counsel also faintly attacked the making of 'Talb‑i‑Muwathibat' by contending that the findings of the learned trial Court on the question of 'Talb‑i‑Muwathibit' were the outcome of misappreciation and non‑appreciation of the evidence. While folding up his argument the learned counsel contended that in case his submissions could not find favour with the Court then his request for the payment of full sale consideration and the amount of expenses in the form of the stamp papers, registration fee and District Council Tax amounting to Rs.1,950 plus Rs.15,000 of the sale price be given to the petitioner by this Court. On the other hand, the learned counsel for the respondent has defended the judgment of trial Court on grounds mentioned therein.

4. The provision of law which governs the subject of 'Talbs' is section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 the relevant segments whereof are as follow which being relevant for the purpose of this judgment is reproduced below:‑‑

"13. Demand of pre‑emption. ‑‑(1) The right of pre‑emption of a person shall be extinguished unless such person makes demands of pre‑emption in the following order, namely:‑‑

(a) Talb‑i‑Muwathibat;

(b) Talb‑i‑Ishhad and

(c) Talb‑i‑Khusumat.

Explanations'

1. Talb‑i‑Muwathibat means...

I. Talb‑i‑Ishhad .............

II. Talb‑i‑Khusumat ..........

(2) ... ... ... ... ... ... ...

(3) (subject to his ability to do so, where) a‑pre‑emptor has made Talb i‑Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of notice under section 32, or knowledge whichever may be earlier, made Talb‑i- Ishhad by sending a notice in writing, attested by two truthful witnesses, under registered cover acknowledgment due to the vendee, confirming his intention to exercise the right of pre emption:

Provided that in areas where due to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make Talb‑i‑Ishhad in the presence of two truthful witnesses."

5. The three demands envisaged by the above provision of law have their own respective connotations. The first demand, i.e., Talb‑i‑Muwathibat is also called a jumping demand which is to be made by prospective pre emptor without loss of any time in the very Majlis'/sitting in which he gets the knowledge of sale. The philosophy behind this demand is that it is a test for determining the originality and self‑existent urge of the pre‑emptor and to determine that the action brought in Court in form of Talb‑i‑Khusumat' is not the outcome of any foreign element of persuasion, avarice or any other consideration extraneous to the lawful object of pre‑emption. Thus the expression of his intention to pre‑empt a sale is rather contemporaneous with the knowledge of sale. Then Talb‑i‑Ishhad' is meant to create evidence of the intention of the pre‑emptor to file a suit for the enforcement of his preemptive rights. This is to be done by way of sending of notice in writing attested by two truthful witnesses under registered cover acknowledgement due to the vendee confirming his (pre‑emptor's) intention to exercise the right of pre‑emption as envisaged by subsection (3) of section 13 of the N.‑W.F.P. Pre‑emption Act. The Legislature has very significantly added a proviso to the above section which is intended to tackle a situation where due to want of postal facility the sending of registered notice by the pre‑emptor is impossible. In such a situation the law permits the making of ' Talb‑i‑Ishhad' in an oral form in presence of two truthful witnesses. In other words the making of oral 'Talb‑i‑Ishhad' is also regarded as proper compliance of the requisite Talb. It thus follows that the sending of a written notice through postal service is not the only mode of making of ' Talb‑i‑Ishhad' but oral demand in presence of two truthful witnesses re‑enforcing his earlier intention of Talb‑i‑Muwathibat' by the prospective pre‑emptor is also a valid mode of ' Talb‑i‑Ishhad' as an alternative, of course, subject to the condition of non‑availability of the postal facilities.

6. The ingredients of 'Talb‑e‑Ishhad' provided by subsection (3) are.

(1) That the notice must be sent as soon as possible after 'Talb‑i -Muwathibat' but not later than two weeks'

(2) that the notice must be in writing ;

(3) that it must be attested by two truthful witnesses, and

(4) It must be sent under registered cover acknowledgement due.

The language of subsection (3) clearly suggests that it is the sending of a notice. With the above ingredient which is imperative and consequently the pre‑emptor would be bound to prove the factum of sending of such notice to the vendee. Thus, if the pre‑emptor succeeds in establishing the fact that he has sent the notice of ' Talb‑i‑Ishhad' to the vendee in terms of subsection (3) (ibid) it shall be a substantial compliance of the legal requirement.

7. The Honourable Supreme Court has exhaustively dealt with the question of substantial compliance of subsection (3) of section 13 of the Punjab Pre‑emption Act, 1991 in case of Muhammad Gul v. Mir Afzal 1999 SCMR 724 wherein the case of Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780, on the point of interpretation of section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 being identical to section 13 of the Punjab Pre‑emption Act of 1991, was thoroughly discussed. The concluding part being relevant is reproduced as follows:‑‑

"In the case before us Muhammad Afzal respondent, when appeared before the trial Court stated‑on oath as follows:‑‑

The above statement of respondent on oath coupled with the written notice sent to the appellant within 10 days of the ' Talb‑i- Muwathibat', substantially complied the legal requirement of section 13(3) of Punjab Pre‑emption Act, 1991. We, therefore, find no substance in these appeals which are, accordingly dismissed. There will, however, be no order as to costs in the circumstances of the cases."

8. Another case captioned as Abdul Malik v. Muhammad Latif 1999 SCMR 717 is also on the same subject. This was also a case of pre‑emption in which the pre‑emptor had served the vendee with a notice making ' Talb‑i -Ishhad'. He was, however, non‑suited on the ground that the notice was not attested by two truthful witnesses. In the cited judgment a passage from the case of Haji Rana Muhammad Shabbir Khan v. Government of Punjab PLD 1994 SC 1, was quoted as follows:‑‑

"We have found that the point raised by the appellant has been duly taken care of by the Federal Shariat Court in its judgment. It is true that the notice is not a necessary ingredient of Talb‑i‑Ishhad, but it 'is evident that this is only a procedural matter to facilitate the proper process of filing a suit of pre‑emption which does not, in any way, affect the basic right of pre‑emption. Procedural provisions may vary from time to time according to the expediency and in so far as they do not violate any Injunction of Islam they cannot be held repugnant to the Holy Qur'an and Sunnah." and thereafter it was observed as follows:‑‑

"It may be mentioned here that in the case of Haji Rana Muhammad Shabbir Ahmad Khan, (supra), various provisions including section 13(3) contained in the Act were challenged as being contrary to the Injunctions of Islam. The observations referred to above and relied upon by the learned counsel for the appellant were made by the learned Judge with reference to the contention raised before the Court regarding the vires and validity of the legislation. No doubt this Court upheld the validity of section 13(3) of the Act on the ground that it is not opposed to the Injunctions of Islam but the observations referred to above do show that the provisions of section 13(3) of the Act relating to service of notice of Talb‑i‑Ishhad were held to be procedural provisions which in our view could not be considered as mandatory so as to result in non‑suiting the appellant on the ground of its non‑compliance. As observed by this Court in Haji Rana Muhammad Shabbir Ahmad Khan's case the performance of Talb‑i‑Ishhad being a procedural matter to facilitate the proper process of filing a suit its non‑performance in the manner stated in section 13(3) of the Act could not affect the basic right of pre‑emption of a party. The facts showing substantial compliance of the provision of section 13(3) would be enough to sustain the suit for pre‑emption This conclusion finds support form the second proviso to subsection (3) of section 13 of the Act which provides that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, the Talb‑i -Ishhad could be made orally in presence of the two truthful witnesses. "

It was finally held in the following terms:

"We, accordingly, hold that the service of the registered notice by the appellant containing the names of the two truthful witnesses before whom Talb‑i‑Ishhad was allegedly made amounted to substantial compliance of the provisions of section 13(3) of the Act and, therefore, he could not be non‑suited on the ground that the notice served on the respondent containing Talb‑i‑Ishhad was not attested by the two truthful witnesses whose names are disclosed in the notice. "

10. In case of Muhammad Gul (supra) the text of the notice of 'Talb‑i -Ishhad' has been reproduced which indicates that the photostat copies of notice of 'Talb‑i‑Ishhad' were obtained and were sent to the defendant -vendee and the receipts were produced as Exh.l‑P1 to Exh.l‑P3 and it was held that the statement of pre‑emptor on oath with the written notice‑‑‑sent to the vendee (appellant) within 10 days of the ' Talb‑i‑Muwathibat' was a substantial compliance of the legal requirement of section 13(3) of Punjab Pre‑emption Act. In case of ' Abdul Malik' it was held that the provision of law regarding notice of ' Talb‑i‑Ishhad' were procedural provisions which could not be considered as mandatory so as to result in non‑suiting the vendor on the ground of its non‑compliance and by making a reference to the case of Haji Rana Muhammad Bashir Ahmad Khan (supra) it was held that performance of ' Talb‑i‑Ishhad' being a procedural matter to facilitate the proper process of filing a suit its non‑performance in the manner stated in section 13(3) of the Act could not affect the basic right of pre‑emption of a party and the facts showing substantial compliance of the provision of section 13(3) would be enough to sustain the suit for pre‑emption. Even a notice without attestation was accepted as compliance of section 13(3) of the Act.

11. From the above survey of case‑law and addition in the form of proviso to subsection (3) it becomes clear that the sending of a notice of 'Talb‑i‑Ishhad' is a procedural matter to facilitate the proper process of filing a suit of pre‑emption. Thus in the light of the above explained position it becomes clear that the Court shall have to look whether a substantial compliance of subsection (3) has been made or not.

12. In case before me notice of ' Talb‑i‑Ishhad' was sent to the petitioner and in support of the said notice the statement of P.W. Muhammad Saeed Branch Sub‑Postmaster and the two attesting witnesses, namely, Matloob Hussain and Muhammad Sabir were recorded. P.W. Muhammad Saeed stated that Exh.P.W.2/1 is the original acknowledgment due card which was delivered to Muhammad Younas (petitioner) on 2‑11‑1989 while both the attesting witnesses stated that they were marginal witnesses to the original of Exh.P.W.4/1. On the comparison of the signature of petitioner on A.D. Card with his signature on the written statement the learned Appellate Court formulated a valid opinion that the petitioner had received a registered letter containing the original of Exh.P.W.4/1. It is obvious that the original of the notice was sent to 'the petitioner from whom A.D. Card was received back and it was proved through P.W. Muhammad Saeed, Sub‑Postmaster that the petitioner had received the notice, therefore, in such circumstances the demand that the plaintiff should have produced the original notice is totally uncalled for. In view of the evidence of the attesting witnesses and the evidence in the form of statement of Muhammad Saeed, Sub‑Post‑Master it is abundantly proved that the notice was served on the petitioner and it was a sufficient compliance of subsection (3) of section 13 of the Act (ibid). Under the circumstances no expectation can be taken of the impugned judgment and decree as it does not suffer from any legal infirmity of the nature of misreading and non‑reading of evidence.

13. The arguments of the learned counsel that Talb‑i‑Muwathibat was not proved can be repelled on the ground that such findings were recorded by the trial Court and were not challenged before the Appellate Court by the petitioner, therefore, at this stage such‑like arguments are not available to the learned counsel for the petitioner. In answer to the arguments of the learner counsel that the respondent had not personally entered into the witness‑box I may say that the law permits a litigant to be represented through the appointed attorney. In the instant case the statement of the attorney was recorded and no request was made by the defendant‑petitioner for the appearance of the respondent in person.

14. The request of the learned counsel for the petitioner qua the actual sale price, i.e., Rs.15,000 plus the expenses is not opposed by the learned counsel for respondent. However, the impugned judgment of the learned District Judge indicates that he has already awarded to petitioner the amount of stamp papers and the District Council Fee, i.e., Rs.1,050 and Rs.450 respectively. The value of land was, however, fixed as Rs.3,856.86 and the registration fee of Rs.450 was not given. I, therefore, order that the value of the land is fixed Rs.15,000 and registration fee at Rs.450 shall also be payable by the respondent. Thus, a total amount of Rs.1,690 shall be paid to petitioner. If Rs.15,000 have already been deposited by respondent then he shall deposit the balance amount of Rs.1,950 within two months.

15. In the light of above discussion with variation of the amount, this civil revision is dismissed.

Q.M.H./M.A.K./499/P

Revision dismissed.