MUHAMMAD KHAN Versus MUHAMMAD ARIF

The facts are that Muhammad Khan petitioner purchased land measuring 2 Kanals, 5 Marlas situate in village Panj Dhera, Tehsil and District Gujrat for a consideration of Rs.30,000 vide Mutation bearing No. 197 sanctioned on 30‑5‑1991. The respondent Muhammad Arif filed a suit for pre‑emption on 29‑9‑1991 on the ground of being Shareek Khata of the suit‑land. The petitioner/defendant controverted the claim of the respondent both on legal and factual grounds. As many as 11 issues were framed by the trial Court on 14‑1‑1992. A further Issue No. 9‑A was framed on 20‑9‑1992 which is reproduced as under:‑‑

Issue No.9‑A

Whether the plaintiff has alleged Talbs as required by law? OPP

2. Although a further Issue No.3\‑A was framed on 4‑11‑1992 but this issue shall not be relevant for the purpose of the present controversy. The learned trial Court found the issue regarding the superior right of pre‑emption in favour of the respondent/plaintiff. The sale consideration was determined to be Rs.30,000. Issue No.3‑A regarding improvement was decided against, the petitioner.

3. Upon the question of Talbs which is the subject‑matter of Issue No .9‑A, the learned trial Court found that 'the petitioner had proved Talb- e‑Muwathibat. However, it came to the conclusion that Talb‑e‑Ishhad was not made in accordance with law. Consequently, the suit was dismissed vide judgment and decree, dated 27‑2‑1993. The respondent preferred an appeal. The parties confined‑ themselves to Issue No."‑A alone in appeal. The learned Appellate Court found that since the trial Court had determined that Talb‑e‑Muwathibat was made in accordance with law, it was a contradiction in‑ terms to hold that notice of Talb‑e-Ishhad was not given within the prescribed time. Holding thus, the appeal was accepted vide judgment and decree dated 23‑11‑1993 and the pre‑emption suit of the respondent was decreed.

4. Asghar haider, Advocate for the petitioner and Dr. Shoukat Hussain, Advocate for the respondent have been heard and record perused.

5. The respondent did not give any specific date of acquiring knowledge, of the mutation in question in his plaint. Regarding Talb‑e- Muwathibat it was averred in para.3 of the plaint as under:‑‑

Even in para.4 and para.7 of the plaint no specific dates were mentioned.

6. In order to prove his case, the respondent appeared as P.W.1 as his own witness and also produced Ali Akbar as P.W.2 and Lal Khan as P. W .3. In none of these statements any specific date of knowledge which could be considered as terminus quo for the purpose of Talb‑e- Muwathibat or Talb‑e‑Ishhad were given. The relevant statement of the respondent is reproduced as under:‑‑

He however, conceded that he acquired the knowledge of the sale three months before the filing of the suit. In his own words:

8. Ali Akbar as P.W.2 stated to have acquired his knowledge regarding sale through Khalida Bibi one day before he informed the plaintiff. According to him he came to know about the sale about 3‑1/2 months or 3‑1/4 months after the sale.

9. Lal Khan P.W.3 also gave the same vague period of 3‑1/2 months or 3‑1/4 months when he acquired the knowledge of sale. He also stated that Mst. Khalida had told him about the sale and that at this time P.W.3 Akbar P.W.2 and Arif plaintiff were present.

10. It may here be mentioned that notice of Talb‑e‑Ishhad has not been produced by the petitioner on the record of civil revision.

11. The cumulative effect of evidence of the respondent/plaintiff upon the question of performance of Talbs is that the plaintiff has failed to give any specific date when he acquired the knowledge of the sale. The statement of P.W.1, P.W.2 and P.W.3 are vague and loose‑ended and do not fix the terminus quo for determining the starting point either for Talb‑e‑Muwathibat or for Talb‑e‑Ishhad. According to section 13 subsection (1), the right of pre‑emption of a person shall be extinguished unless such person makes demands of pre‑emption in the following manner namely:‑‑

(a) Talb‑e‑Muwathibat. (b) Talb‑e‑Ishhad and (c) Talb‑e‑Khusumat.

12. Talb‑e‑Muwathibat means immediate demand by a pre‑emptor in the sitting or meeting (Majlis) in which he has come to know of the sale declaring his intention to exercise his right of pre‑emption. According to P.W.3 when Mst. Khalida informed of the sale in question at that time Lal Khan Akbar and Asif were present. According to P.W.1 and P.W.2 the Talb‑e‑Muwathibat was not made on this day but was made on the following day. The claim of the respondent is further negatived by his own statement where he stated that he came to know of the sale in dispute three months before filing of the suit.

13. Taking this view of the matter, there was nothing on the record to prove the valid performance of Talb‑e‑Muwathibat. According to section 13(3) where a pre‑emptor has made Talb‑e‑Muwathibat under subsection (2) he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb‑e‑Ishhad. The learned counsel for the petitioner made reference to Ghulam Jilani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001, in support of his contention.

14. Obviously, when the date of knowledge has not been specifically proved and making of a valid Talb‑e‑Muwathibat has not been established, the performance of Talb‑e‑Ishhad cannot be established within the framework and period as provided in section 13, subsection (3) of the Punjab pre‑emption Act, 1991.

15. In view of the foregoing, it is held that respondent/plaintiff had, failed to establish the date of knowledge and the performance of Talb‑e- Muwathibat. The evidence produced by respondent/plaintiff in this regard is inconsistent and vague. The notice of Talb‑e‑Ishhad even if proved to have been sent on 24‑9‑1991 would not fulfil the requirement of section 13 subsection, (3) of the Punjab Pre‑emption Act, 1991. Resultantly, as the respondent/plaintiff has failed to prove both Talb‑e- Muwathibat and Talb‑e‑Ishhad, this civil revision is allowed and the decree of the Appellate Court dated 23‑11‑1993 and that of l 27‑2‑1993 is set aside and the suit of the respondent to bear their own costs.

H.B.T./M-1651/L Revision allowed.