BASHIR AHMED Versus MURTAZA KHAN

Brief facts giving rise to the .revision petition in hand are that Messrs Bashir Ahmad, Shabbir Ahmad and Tanveer;, Ahmad, petitioners, purchased land measuring 1 Kanal and 10 Marlas comprising Khasra No‑3734 from Aurangzeb vide Mutation No.8453 attested on 28-5‑1988 for Rs.90,000. Murtaza Khan respondent filed Suit No.199/1 of 1989 for possession through pre‑emption in the Court of Civil Judge, Mansehra. The petitioners resisted the suit on technical as well as factual side. Out of the pleadings of the parties the learned trial Court framed the following issues:‑‑

(1) Whether the plaintiff has got a cause of action?

(2) Whether the plaintiff is estopped to sue?

(3) Whether the suit is bad and not maintainable in its present form?

(4) Whether the suit is time‑barred?

(5) Whether the suit is hit by section 13 of the Pre‑emption Act, 1987?

(6) Whether the sale was struck with the consent of the plaintiff and the plaintiff has waived his right if any?

(7) Whether, Rs.10,000 amount incurred on the process of sale, if provided, whether the defendants are entitled to this amount besides sale consideration?

(8) Whether the plaintiff has fulfilled the provisions of section 13 of the Pre‑emption Act?

(9) Whether the plaintiff has got a right of pre‑emption?

(10) Whether Rs.90,000 was fixed as sale consideration in good faith and was actually paid?

(11) What is the market value?

(l2) Whether the plaintiff is entitled to a decree of possession through pre‑emption as prayed for?

(13) Relief.

2. After recording the evidence of the parties, hearing arguments of the learned counsel for the parties, the learned trial Court decided issues Nos.5 and 8 against pre‑emptor/respondent and dismissed the suit vide judgment/decree, dated' 1‑12‑1993. Feeling aggrieved by the said Judgment and decree, respondent Murtaza Khan filed Appeal (No.13/10 of 1994) in the Court of learned District Judge, Mansehra. On acceptance of the appeal vide judgment/decree, dated 22‑9‑1994 the Appellate Court reversed the finding of the trial Court and decreed the suit of respondent for possession through pre‑emption of the land on payment of Rs.90,000, the sale consideration entered in mutation. Dissatisfied with the conclusion arrived at by the learned District Judge, Mansehra, the vendees/petitioners have approached this Court through the instant revision petition.

3. Mr. Ghulam Younas Khan Tanoli, Advocate, the learned counsel for the petitioners argued that the respondent /plaintiff had failed to fulfil requirements of "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad". Neither the date nor the time nor the place of acquiring knowledge was mentioned in the plaint, therefore, the suit of the plaintiff was liable for dismissal. He placed reliance on:‑‑

(1) Shah Hussain and 9 others v. Khani Zaman PLD 1996 Pesh. 73,

(2) Abdul Hameed v. Haq Nawaz 1999 CLC 120,

(3) Allah Yar v. Shah Muhammad and others 1999 YLR 1663,

(4) Sajad Zaman and others v. Muhammad Yaqoob and others 1999 YLR 2716.

He further argued that Mutation No.8453 was attested on 25‑8‑1988 but the plaintiff served notice of "Talb‑i‑Ishhad" on 5‑2‑1989. This delay has not been explained by the respondent/plaintiff. The plaintiff had the knowledge of the sale transaction even before the attestation of mutation in favour of petitioners. As per section 31 of Pre‑emption Act the limitation would start from the date of attestation of mutation. The "Talabs" were not made in time, therefore, the suit of the plaintiff deserved dismissal and the learned trial Court had rightly dismissed the same but the learned Appellate Court while misreading the evidence accepted the appeal. He placed, reliance on Muhammad Ashraf v. Tahir and 6 others 1990 MLD 2399.

4. Repelling the arguments of the learned counsel for the petitioners Mr. M.H. Lughmani, Advocate, the learned counsel representing the respondent/plaintiff argued that the learned trial Court decided the case on two issues, i.e. issues Nos.5 and 8 which are almost the same in nature. He stated at Bar that mentioning the date, time and place of acquiring knowledge in the plaint was not sine qua non. He placed reliance on recent judgment of August Supreme Court of Pakistan "Sar Anjam v. Abdul Raziq Civil Appeals Nos.44, 573 and 574 of 1997, decided on 30‑4‑1998 and Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 83.

5. Replying the other arguments of the learned counsel for the petitioner that the "Talabs" were not made in accordance with law and delay has not been explained by the respondent/plaintiff, the learned counsel for the respondent stated that "Talb‑i‑Muwathibat" and "Talb‑i‑Ishhad" were made in accordance with law on gaining the knowledge and there is no delay at all.

6. I have heard the learned counsel for the parties and perused the record.

7. So far as .the first point agitated by the learned counsel for the petitioners that date, time and place of acquiring acknowledge was not mentioned in the plaint and the plaint on this score alone deserved dismissal is concerned, the same has no force' in view of the recent judgments of August Supreme Court of Pakistan. The question as to whether it is sine qua non for the pre‑emptor to specify in the plaint the names of the witnesses in whose presence "Talb‑i‑Muwathibat" under section, 13 of the North‑West Frontier Province Pre‑emption Act (X of 1987) was made by the pre‑emptor and the place, date and time of making the: "Talbs", came up before August Supreme Court of Pakistan in Sar Anjam v. Abdur Raziq Civil Appeal No‑44 of 1997. Shakirullah v. Aminullah Civil Appeal No.573 of 1997 and Muhammad Ishaq Khan v. Amir Nawaz Khan Civil Appeal Nh.574 of 1997. Their Lordships after discussing various judgments held in paragraph No. 10 of their judgment,

"The above survey of case‑law would, thus, lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses."

Similarly, in paragraph No. 12 it was held

"We have, therefore, no hesitation to hold that it is not a sine qua non for a pre‑emptor to specify in the plaint the names of witnesses in whose presence he had made ' Talb‑i‑Muwathibat' and also specify. the time and place of making the ' Talbs' under section 13 of the Act."

8. Similarly, in case Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 it was held,

"No doubt Order 6, Rule 2, C.P.C. provides that material facts are to be stated in pleadings but it does not mean that evidence through which such material fact is to be proved shall also be stated in pleadings. In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having come to know of sale the pre‑emptor declared his intention to pre‑empt the sale. This material fact has to be proved at the trial through evidence on the issue framed in this regard."

In case in hand the respondent/plaintiff in paragraph No.2 of his plaint has stated:

In his statement he stated that he gained the knowledge of sale transaction on 29‑1‑1989 and in the same sitting where he got such information, in the presence of witnesses he declared his intention to exercise the right of pre emption. Notice of the "Talb‑i‑Ishhad" was sent to the petitioners can 5‑2‑1989. Copy of the notice has been placed on record as EXh.P.W 5/1. 1 hold that the ... Requirements of law have, therefore, been fully met as the respondent/plaintiff has alleged in the pleadings that after having come to know of sale he declared his intention to pre‑empt such sale. Specific issues Nos.5 and 8 were framed by the learned trial Court and parties led their evidence. Wisdom is drawn from "Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883 it was held,

"Requirements of law would be fully met if it was alleged in the pleadings that after having come to know of sale pre‑emptor declared his intention to pre‑empt such sale. Material fact must be proved at trial through evidence on issue framed in that regard. Evidence to be led need not be alleged in the plaint."

I am, therefore, clear in my mind that it is not sine qua non for the pre emptor to specify in the plaint the names of the witnesses in whose presence he had made "Talb‑i‑Muwathibat" and also specify the time and the place to make the "Talb‑i‑Muwthibat" and the respondent/plaintiff could not be non suited only on this ground that he failed to mention the time and place where "Talb‑i‑Muwathibat" was made. '

9. The other point urged by the learned counsel for the petitioner is that "Talbs" were not made by the respondent in accordance with law. This argument pf the learned counsel for the petitioner equally has no force. The case of the respondent/plaintiff is that he gained knowledge of the sale transaction on 29‑1‑1989 through Faqir (P.W.7) while he was sitting in the village Baithak alongwith Ghulam Hussain P.W.6, whereupon there and then he announced that he would file pre‑emption suit against the vendees because of his superior rights and thereafter on 5‑2‑1989 he made "Talb‑i‑Ishhad" through notice sent though registered A.D. thereby fulfilling the requirements of section 13 of N.‑W.F.P. Pre‑emption Act, 1987. He clearly mentioned in para. 2 of his plaint that immediately on receipt of information regarding sale transaction, he made "Talb‑i‑Muwathibat" there and then in the same sitting and thereafter he made "Talb‑i‑Ishhad" through registered A.D. notice in the name of petitioners. Appearing as P.W.5 respondent/plaintiff claimed that when he alongwith Ghulam Hussain P.W.6 was sitting in the village Baithak, Faqir (P.W.7) came and made disclosure of the sale transaction whereupon there and then he announced that he would file pre‑emption suit against the vendees because of his superior rights. Ghulam Hussain P.W.6 did endorse the statement of respondent by saying that P. W. Faqir came to village Hujra and told about the sale transaction by Aurangzeb in favour of Bashir Ahmad etc. vendees'and immediately the plaintiff declared that he would pre‑empt the transaction. Faqir Muhammad appearing for plaintiff as P.W.7 further confirmed about immediate announcement of pre‑empting the sale transaction by the plaintiff, the moment he informed him of the bargain.

10. Under section 13 of the N.‑W.F.P. Pre‑emption Act, 1987 right of pre‑emption of a person shall be extinguished unless such person makes demand of pre‑emption through "Talb‑i‑Muwathibat", "Talb‑i‑Ishhad" and finally "Talb‑i‑Khusumat". Talb‑i‑Muwathibat means immediate demand by the pre‑emptor in the sitting or meeting in which he came to know of the sale, declaring his intention to exercise his right of pre‑emotion. Shortly, to prove "Talb‑i‑Muwathibat" any words indicative of his intention to enforce his right of pre‑emotion are sufficient. Although the law does not require presence of witnesses at the time of "Talb‑i‑Muwathibat" as held by Supreme Court of Pakistan in Civil Appeal No.560 of 1995 titled Zarghan Shah v. Muhammad Yaqoob decided on 25‑6‑1998 in which it‑‑was held, in paragraph No. 3 of the said judgment,

"Having heard the learned counsel for the parties and having gone through the evidence on record we are of the view that the appeal merits to succeed. Learned Judge in Chamber has taken too technical a view of the evidence on record in respect of making of Talb‑i‑Muwathibat". It is pertinent to note that ~ Talb‑i Muwathibat' need not be made in the presence of witnesses."

11. In the case in hand, respondent/plaintiff and two witnesses referred by me have corroborated each other on the assertion that the moment the plaintiff came to know of the sale, he immediately made demand in the same sitting by declaring his intention to exercise the right of pre‑emotion.

12. As per law of Pre‑emotion, ... the emphasis is on declaration of intention to exercise right of pre‑emotion on receiving information about sale of property. This information might have been received while being alone or in meetings. After fulfilling the requirement of immediate demand, i.e.. "Talb‑i‑Muwathibat" the respondent served notice of "Talb‑i‑Ishhad", wherein it is specifically mentioned that he acquired knowledge of sale transaction on 29‑1‑1989 and in the same sitting where he got such information, he in presence of witnesses declared his intention to exercise the right of pre‑emotion. Copy of notice has been placed on record as Exh.P.W.5/1. Although the record was destroyed by the Postal Department under the provisions of Pakistan Postal Rules as the matter pertains to period beyond one and half years yet Mumtaz Khan, Town Inspector G_P.O. who was examined as P.W.4 confirmed that Receipt No. 170 regarding the registered letter was issued by Post Office which bore the stamp of concerned Post Office. He also confirmed that the A.D. was issued by Post Office. This P.W. (P.W.4) was not even cross‑examined by the petitioner and, therefore, his statement remains unquestioned. The respondent/plaintiff in his statement before the Court explained during the cross-examination that a notice was registered from City Post Office. P.Ws. Ghulam Hussain and Faqir Muhammad are also unanimous that they signed notice of Talb‑i‑Ishhad" on the 7th day of making of "Talb‑i‑Muwathibat" by plaintiff. The notice is dated 5‑2‑1989 and it was sent through registered A.D. on the same day.

13. Under subsection (3) of section 13 of N.‑W.F.P. Pre‑emotion Act, 1987 after making "Talb‑i‑Muwathibat" the plaintiff is required to make "Talb‑i‑Ishhad" by sending a notice in writing duly attested by two witnesses, through registered post A.D. to the vendee within 14 days. The plaintiff having gained knowledge of the transaction on 29‑1‑1989 made "Talb‑i‑Muwathibat" on the same day and sent notice on 5‑2‑1989, it is well within the prescribed time limit, as such the trial Court was wrong to decide issues Nos.5 and 8 against the respondent/plaintiff. It is worth mentioning here that no notice under section 32 of N.‑W.F.P. Pre‑emotion Act, 1987 was given by Revenue Officer within 14 days of attestation of mutation.

14. In a case Muhammad Gul v. Muhammad Afzal 1999 SCMR 724 it was held,

"Section 13(3)‑‑‑Notice expressing Talb‑i‑Ishhad' was sent by pre emptor after 10 days of making 'Talb‑i‑Muwathibat' Statement of pre‑emptor on oath coupled with notice sent to vendees within 10 days of ' Talb‑i‑Muwathibat' held was substantial compliance of legal requirements of section 13(3) of Punjab Pre‑emotion Act, 1991."

15. Similarly in zarghun Shah v. Muhammad Yaqoob Khan Civil Appeal No.560 of 1995, mentioned earlier, the August Supreme Court of Pakistan reversed the findings of the learned Judge of the High Court regarding the evidence in respect of making of Talb‑i‑Muwathibat. The findings of the High Court were analysed in para. 2 of the judgment and read:‑‑

Date of execution of notice Exh.P.W.7/1 is 7‑8‑1991 and this is alleged to be the third day, meaning thereby that the Talb‑i Muwathibat was made on 4‑8‑1991. This, according to the learned Judge of the High Court, stands totally falsified by a hard fact that the very mutation of sale in dispute was attested on 5‑8‑1991. So, the story of Talb‑i‑Muwathibat is concocted even after the filing of plaint. Learned Judge of the High Court, in paragraph 6 of the impugned judgment noted certain contradictions with regard to the meeting of the plaintiff in the Baithak of Sakhi Marian and formed the view that the notice was stated to have been drafted on 7‑8‑1991 and if the notice was signed three days after Talb‑i‑Muwathibat then this would bring the date of notice to be 10th or 11th of August, 1991. Hence, Talb‑i‑Muwathibat as alleged to ‑ have been made stands totally disproved. Learned Judge of the High Court was also of the view ‑that though the suit is liable to be dismissed on the disproof of Talb‑i‑Muathibat yet notice Exh.P.W.7/1 and the copy of Petition Writer Exh.P.W.7/2 would suggest that those do not bear the thumb‑impression of any witness. He further, observed that the aforenoted observation anyhow with regard to Talb‑i‑Ishhad was made just as a passing reference whereas the suit of the plaintiff was liable to be dismissed for non‑fulfilment of Talb‑i‑Muwathibat."

The Supreme Court of Pakistan did not approve these conclusions of the learned Judge in the High Court and observed in para. 3 of the judgment that the learned Judge has taken too technical a view of the evidence on record in respect of making of the Talb‑i‑Muwathibat and observed as immaterial the contradictions in the evidence of the plaintiff relating to time, date and place of Talb‑i‑Muwaihibat, holding that the right of pre‑emption cannot be allowed to fail at the alter of technicalities.

16. Likewise in C.P.As. Nos. 44, 573 and 574' of 1997, decided on 30‑4‑1998, the August Supreme Court of Pakistan had held,

"We have followed the principle annunciated by a learned Division Bench in the case of Ameer Jan on the non‑desirability of stating in the plaint the time and place of making Talb‑i‑Muwthibat and the name of the witnesses before whom it was made. We are also inclined to hold that assertion in Qara.3 of the plaint coupled with the indication in the notice of Talb‑i‑Ishhad having made Talb‑i Muwathibat' is sufficient compliance of requirement of section 13 ibid). "

The notice of Talb‑i‑Ishhad primarily means demand by establishing evidence. In the notice of Talb‑i‑Ishhad, the plaintiff/respondent has given the date of getting knowledge, i.e., 29‑1‑1989 in the presence of the witnesses, namely, Ghulam Hussain and Faqir Muhammad who have both appearing as witnesses for the plaintiff and corroborated him on material facts regarding his immediate declaration of intention to exercise the right of pre‑emption. The place where the plaintiff was informed about the sale transaction, has also been established.

17. The statement of respondent/plaintiff on oath coupled with the written notice sent to the petitioners within 7 days of "Talb‑i‑Muwathibat" substantially complied the legal requirements of section 13(3) of N.‑W.F.P. Pre‑emption Act, 1987.

Finding on merit, the revision petition is dismissed. The parties shall bear their own costs.

Q.M.H./M.A.K./469/P Revision dismissed.