MUHAMMAD SARWAR and others Versus HAKIM ALI

1. Qua the sale of the suit-land Hakam Ali respondent instituted a suit for pre-emption on 5-6-1991 that he had the superior right. The suit was contested. It had been dismissed on number of occasions and remanded repeatedly by the Appellate Court. Eventually on 15-9-1996, the learned trial Court proceed to dismiss it where against the appeal preferred by the respondent-pre-emptor was accepted by the learned Additional District Judge, Kharian on 16-3-1998. This is revision petition by the vendee defendants there against.

2. Issue No.9 which was about the performance of "Talbs" has assumed importance due to variant approach of the Courts. Findings recorded by the trial Court against the pre-emptor-plaintiff were reversed by the First Appellate Court. In assailing the finding of the First Appellate, Court., it is contended by the learned counsel that a totally misconceived and misdirected approach has been adopted by the First Appellate Court in reversing the findings recorded by the learned trial Court inasmuch as that the respondent-plaintiff had failed to state in the plaint the material facts about the performance of Talab-e-Muwathibat with its precision and. exactness. According to him the view taken by the trial Court was consistent with the pleadings and the evidence on the record whereas the learned Appellate Court has wrongly and erroneously interfered with the same. In support of his contention reliance has been placed upon Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409. On the other hand, the learned counsel for the respondent has supported the judgment of the learned Appellate Court by citing Amir Jan v. Haji Ghulam Muhammad PLD 1997 SC 883 that it was not necessary to make mention and disclose the date, place and time in the plaint. According to him the statement made by the respondent-plaintiff, coupled with the statement of Muhammad Ilyas P.W.1 and Mehdi Khan P.W.2 should be considered enough in respect of performance of Talb-i Muwathibat.

2. As mentioned above, the sale of the land which is situated in the same village to which the parties belong took place as per mutation sanctioned on 25-4-1991. He is said to have issued separate notices on 1-6-1991 which have not been brought on record and exhibited in the evidence, in the case. The perusal of the notice would show that nothing about the date, place and timing of acquiring knowledge about the sale was disclosed therein. Paragraph 3 of the plaint also does not make any mention of date, place and time of the knowledge. An averment in the loose form that has been made is:--

3. The plaint does not even make mention of the person who gave the information about sale to him. Mere production of Mehdi Khan as P.W.2 to state such facts was not enough as necessary foundation for essential material facts had to be laid down in the notice and the plaint. In Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 while distinguishing Amir Jan's case PLD 1997 SC 883, the importance of `Talbs' was highlighted and it was observed that the same should not be considered merely a technicality. It was thus, held that:--

4. "16. It is a settled principle of law that in case of involvement of limitation of any kind, the plaintiff has to specify the date and time of the commencement of limitation or the knowledge of the plaintiff in specific so that the limitation is computed accordingly. It has never been made permissible in the realm of civil law that a plaintiff who does not disclose the point of time of his knowledge about the accrual of cause of action, he could be accommodated subsequently in the evidence to satisfy the same. In our view, it is important to tell the date and time of the performance of Talb-i-Muwathibat in the plaint so as to prove the immediate exercise thereof and also as to whether he performed Talb-i-Muwathibat in the same meeting and before the dispersal thereof.

17. The date and time is important to be mentioned in the pleadings because therefrom the performance of Talb-i-Ishhad has to be computed so as to be within 15 days. As mentioned earlier, in civil cases in general the point of time qua the accrual of knowledge requires to be mentioned in specific so that nothing is invented during evidence as an afterthought. The cases of pre emption should not be an exception to the general law and the day and time of performance of Talb-i-Muwathibat which is simultaneous with the accrual of knowledge of transaction should be mentioned in the pleadings so that, at the first instance the immediacy of the Talb-i-Muwathibat is appreciated and at the second instance the limitation qua the performance of Talb-i-Ishhad is calculated. This aspect has never been argued in any case before this Court where the view happens to be expressed to the contrary."

5. Thus, importance of due compliance of legal requirements and rationale behind has been highlighted by the apex Court. In Haji Lal Shah and another v. Abdul Khaliq and another 2004 SCMR 409 as well a similar view was expressed.

6. In the instant case the respondent-plaintiff had failed to state in the notice and the plaint material aspects as to performance of Talb-i -Muwathibat. Thus, the view formed by the trial Court on appraisal of the pleadings and the evidence was consistent with the legal position obtaining in the matter. It may be noted that Hakim Ali respondent who appeared as P.W.4 had for the first time stated in his deposition that Mehdi Khan P.W.2 had informed him about the sale in presence of Muhammad Ilyas P.W.1. In the cross-examination he expressed his ignorance about the date, month or the year of knowledge of the sale of the land. Such indefinite and obscure stance militated against his assertion about performance of "Talbs" in accordance with law. The reversal of the findings recorded by the learned trial Court was, therefore, not justified by the Appellate Court who in doing so has committed illegality and his findings are not consistent with law on the subject. The judgment and decree thus, passed by the Appellate Court is not sustainable.

7. As a result of the above, accepting revision petition the judgment impugned is set aside, consequently the suit filed by the C respondent-plaintiff stand dismissed. No order, as to costs.

8. H.B.T./M-494/L Revision accepted.