KHURSHID AKBAR Versus SAADULLAH KHAN

Saadullah Khan, respondent/plaintiff filed Suit No.27/1 on 3‑2‑1993 in the Court of learned Civil Judge Takht Bhai for possession through pre emption of land measuring 3 Kanals, 5 Marlas comprising Khasras Nos.258 and 259 bearing Khata No.142/616‑617 situated at Mauza Arabi Banda Tehsil Takht Bhai, District Mardan. The said suit was resisted by the petitioner/defendant by filing written statement. The learned trial Court after recording pro and contra evidence of the parties, dismissed the suit vide judgment and decree, dated' 12‑9‑1994. Being not satisfied with the said judgment ‑ and decree, the respondent/plaintiff filed Appeal No.222/13 on 21‑9‑1994 in the Court of learned Additional District Judge Takht Bhai, which was accepted vide judgment and decree, dated 11‑4‑1995. The petitioner/defendant has filed the revision petition in hand against the judgment and decree passed by the learned appellate Court, dated 11‑4‑1995.

2. Mr. Mazullah Barkandi, the learned counsel representing the petitioner argued that the respondent/plaintiff had failed to mention in his plaint the time, place and the name of the person in whose presence he made Talab‑e‑Muwathibat, therefore, the suit deserved dismissal on this score alone.

3. He also argued that the plaintiff in his statement before the Court had admitted that Dost Muhammad (P. W.4) had informed him about the sale Mutation No. 1876 on the date on which the said mutation was attested on 20‑10‑1992, but he made no Talb‑e‑Muwathibat and Talb‑e‑Ishhad was made on 31‑1‑1993 after the expiry of period prescribed by law. The plaintiff failed to exhibit the notice of Talb‑e‑Ishhad on file, therefore, the requirements of law were not fulfilled

4. It was also argued that there were contradictions in the statements of plaintiff and Dost Muhammad. (P.W.4). The said P.W. (P.W.4) stated that he informed the plaintiff after one month of attestation of mutation, whereas the plaintiff in his statement stated that he was informed on the day of attestation of mutation by Dost Muhammad.

5. It was further argued that the petitioner is also co‑sharer in the disputed property which has been admitted by the A.D. K. P.W.1, therefore, in case of non‑dismissal of suit, he was entitled to half of the pre‑empted land.

6. On the other hand Mr. Abdul Samad Khan, the learned counsel representing the respondent argued that it was not necessary to mention the details of Talabs in the plaint as held by the august Supreme Court of Pakistan in case reported as Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329. '

7. So far as the contradictions in the statement of plaintiff ‑and Dost Muhammad (P.W.4) are concerned, the learned counsel stated that there were no material contradictions ‑and plaintiff in his statement has categorically stated that he did not gain knowledge of the mutation on the date it was attested.

8. It was also argued that notice Talb‑e‑Ishhad, dated 31‑1‑1993 was placed on file and that Dost Muhammad (P.W.4) and Fateh Muhammad (P.W.5) have admitted having signed the said notice. Mamrez Khan, Postman (P.W.2) and Nooruddin Clerk of Post Office Gujar Garhi, Mardan have also stated that the notice of Talb‑e‑Ishhad was sent by the plaintiff to the petitioner/defendant through registered post A.D. and the presumption of law is that the said notice was received by the petitioner/defendant, which is fortified by the signatures of the petitioner on A. D. Card Exh.P.W.2/2.

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

10. So far as the first argument of the learned counsel for the petitioner that the respondent/plaintiff had failed to mention in his plaint the time, place and the name of the person in whose presence he made Talb‑e- Muwathibat, therefore, his suit deserved dismissal has no force at all. Plain reading of 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 facts are to be proved shall also be stated in pleadings. Where it is mandatory to give in plaint in a suit through possession by pre‑emption the particulars and details of the date, time and place of Talb‑e‑Muwathibat and also the names of the witnesses in whose presence this Talab was made came up before the august Supreme Court of Pakistan in Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Full Bench of august Supreme Court of Pakistan after taking into consideration various judgments concerning the said issue held:‑‑

"We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for pre‑emption is not an exception to such general principles, which is well‑established in our jurisdiction.

We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirement of Talab‑e‑Muwathibat cannot be fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein. "

10. The question as to whether it is sine qua non for the pre‑emptor t6 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 'Talabs', came up before august Supreme Court of Pakistan in Sar Anjam v. Abdul Raziq 1999 SCMR 2167, Civil Appeal No.574 of 1997 (Shakirullah v. Aminullah) and Civil Appeal. No.574 of 1997 (Muhammad Ishaq Khan v. Amir Nawaz Khan). Their Lordships after discussing various judgments held in paragraph No. 10 of the 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 'Talabs' under section 13 of the Act."

12. Likewise 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. The material fact has to be proved at the trial through evidence on the issue framed in this regard. "

13. Similarly a Single Bench of this Court in Civil Revision No.22 of 1995 (Bashir Ahmad and others v. Murtaza Khan) has also held that it is not necessary for the pre‑emptor to mention the time, date, place and the names of the witnesses in the plaint.

14. A similar view was adopted by this Court (by me) in Muhammad Zarin v. Aamer Mehmood PLD 2000 Pesh. 20.

15. Keeping in view the dictum laid down by august Supreme Court of Pakistan and this Court, it is held that it is not necessary to mention in pleadings the date, time and place as well as the names of the persons in whose presence Talb‑e‑Muwathibat is made.

16. So far as the other argument of the learned counsel for the petitioner that the plaintiff in his statement before the Court had admitted that Dost Muhammad (P.W.4) had informed him about the sale on the day on which sale mutation in question was attested, but he made no Talab‑e‑Muathibat and Talb‑e‑Ishhad in time and that there were material contradictions between statements of plaintiff and Dost Muhammad (P.W.4) regarding Talb‑e‑Muwathibat; therefore, his suit deserved dismissal also has a force in it. Saadullah Khan, plaintiff/respondent was examined as P.W.6. In cross-examination he admitted:‑‑

Mutation No. 1876 was attested on 20‑10‑1992, therefore, the plaintiff/respondent had the knowledge of the same on 20‑10‑1992. It is in evidence that notice Talb‑e‑Ishhad was sent to the petitioner/defendant on 31‑1‑1993. As per section 13 of the Pre‑emption Act, 1987 Talb‑i -Muwathibat is to be made immediately after acquiring the knowledge of the sale. Pre‑emptor has to declare his intention to exercise his right of pre emption into sitting of meeting in which he comes to know about the sale transaction, where the pre‑emptor did not make any declaration regarding his intention to pre‑empt the suit transaction in the presence of the person who first of all informed the pre‑emptor about the sale, the pre emptor had lost his right of pre‑emption by delaying such pronouncement of his intention to pre‑empt the transaction and the delay caused in making the requisite Talb‑e‑Muwathibat invalidated the right of pre‑emption.

17. In the case in hand Dost Muhammad (P.W.4) stated that the respondent/plaintiff made Talb‑e‑Muwathibat and on the following day at 10‑00 a.m. they went to Kachehri Takht Bahi where notice Talb‑e‑Ishhad was issued to petitioner/defendant. Similarly Fateh Khan (P.W.5), son of the plaintiff also stated that on the following day of making of Talb‑e . Muwathibat, notice of Talb‑e‑Ishhad was sent to the petitioner through Advocate.

18. The perusal of the statements of plaintiff, Dost Muhammad (P. W. 4) and Fateh Khan (P.W.5) shows that not only Talb‑e‑Muwathibat was delayed but Talb‑e‑Ishhad was also made after 2 weeks of gaining knowledge of sale transaction, hence the requirements of section 13 of the Pre‑emption Act, 1987 were not fulfilled. So far as the plea of the respondent/defendant that he was informed after a month by Dost Muhammad (P.W.4) about the sale transaction and immediately on gaining ‑knowledge, he made Talb‑e Muwathibat, this plea has not been substantiated and proved by him in his evidence. As mentioned above, he had admitted that he was informed. of the sale transaction on the day when sale mutation was attested: Therefore, his plea that he was informed after a month has no force.

19. The argument of the learned counsel for the‑petitioner that the notice of Talb‑e‑Ishhad was not exhibited, therefore, the same cannot be taken into consideration even if placed .on record also has a force in it. The respondent/plaintiff though examined Muhammad Nazir Khan postman, Gujar Garhi Mardan (P.W.2), Nooruddin Clerk Post Office Gujar Garhi (P.W.3), Dost Muhammad (P.W.4) and Fateh Khan (P.W.5) in order to prove that notice of Talb‑e‑Ishhad was sent to the petitioner/defendant but the notice itself was not exhibited. Order 13, Rule 1 envisages that the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power on which they intend to rely. No doubt photostat copy of the notice was annexed with the plaint but in law it cannot be taken into consideration as the same was not exhibited in evidence. In a case reported as Pakistan Insurance Corporation v. Asian Mutual Insurance Co. Ltd. 1999 MLD 3298 it was held that document neither pleaded nor exhibited in evidence could not be IC taken into consideration.

Even if the notice of Talb‑e‑Ishhad which has been placed on file and not exhibited, the same is not in accordance with the requirements of law in that it has not been thumb‑impressed by two witnesses. Saadullah, plaintiff (P.W.6) in cross‑examination admitted:‑‑

Keeping in view the abovementioned discussion, I accept the revision petition in hand and set aside the judgment and decree passed by the learned appellate Court, dated 11‑4‑1995 and restore that of the learned Civil Judge Takht Bhai, dated 12‑9‑1994 with no orders as to costs.

Q.M.H./M.A.K:1241/P Revision allowed.