AKBAR SHAH Versus FAZAL-UR-REHMAN
ORDER
SAGHEER AHMED QADRI, J .---Ameer Khan predecessor-in- interest of respondents-plaintiffs filed suit for possession through pre-emption in respect of land measuring 3 Kanals. 5 Marlas, detail of which is given in the head-note of the plaint, against the petitioners-defendants mentioning the facts that land in dispute initially was owned by Abdul Rehman and others, who vide Mutation No. 809 dated 30-7-1995 sold the same in consideration of Rs.1,50,000. Plaintiffs-respondents claimed the superior right of pre-emption while mentioning the facts that factum of sale came into the knowledge of original plaintiff i.e. predecessor of the plaintiffs-respondents through Dilawar Khan son or Saad Ullah on 16-10-1995 when at about 9-00 a.m. he was present on a well in front of his house. At that time Faqir Muhammad son of Dawood Khan was also present with him. The plaintiff-respondent immediately pronounced his superior right of pre-emption in the presence of Dilawar Khan and Faqir Muhammad and subsequently along with witnesses he went to defendants-petitioners on 17-10-1995 as "Jirga"; that on 19-10-1995 notice of Talb-e-lshhad was sent. The plaintiffs-respondents claimed superior right on the basis of Shafi Shareek. Prayed that suit be decreed.
2. Suit was resisted by the petitioners-defendants by filing their written statement, wherein they raised five preliminary objections regarding the maintainability of the suit on the grounds of estoppel, barred by time, sale without issuance of notice, deficient in court-fee and filing without completion of the prerequisites of performance of Talabs. On factual side sale was admitted and stated that Rs.30,000 apart from the sale price were incurred as expenditures by them. The superior right .of pre-emption of the plaintiffs-respondents was denied and prayed that suit be dismissed.
3. Out of the pleadings of the parties on 12-3-1997 following 8 issues were framed by the learned trial Court:--
(1) Whether the plaintiff has got superior right of pre-emption? OPP.
(2) Whether the plaintiff made "Talabs" in accordance with Islamic Law of Pre-emption? OPP.
(3) Whether the suit is barred by time? OPD
(4) Whether the plaintiff is estopped from bringing this suit due to his own words and conduct? OPD
(5) Whether the suit has been properly valued and stamped? OPP
(6) If Issue No. 5 is not proved, what is the correct valuation and how much is the deficiency in court-fee? OPD
(7) Whether the defendants incurred a sum of Rs.35000 as incidental charges over transfer of the suit property in their favour, if so, whether they are entitled to recover the said amount over and above the sale price? OPD
(8) Relief.
4. Parties were directed to lead their respective evidence. Plaintiffs-respondents examined P.W. Muhammad Latif, Clerk, GPO Attock, who deposed that four registered post letters vide Nos. 971. to 974 were sent to Akbar Shah while registered post letter vide No. 974 was sent abroad and receipts of the registered post Exh.Pl to Exh.P4 Fazal were available in his office. P.W.2 Abdul Khursheed, Postman stated that he went to the house of Zareen Shah and Liaqat Ali Shah to deliver letters through registered post (971 to 973), which they refused to accept and he with reports Exh.P5 to Exh.P7 sent back the same. P.W.3 Dilawar Khan son of Saad Ullah Khan the alleged informer appeared and stated that he about three years back went to Patwari wherefrom it came into his knowledge that the nephew of Ameer Khan (predecessor-in- interest of the present respondents/plaintiffs) had sold the land and he informed this fact on next day to Ameer Khan, who disclosed that he would pre-empt the sale; that thereafter they went to Zareen Shah defendant but he refused to return the land. Subsequently, the notices of Talb-e-Ishhad Exh.P-8 to Exh.P-10 were got prepared from an Advocate which were thumb marked by him. P.W.4 Faqir Muhammad stated that he along with his uncle Ameer Khan was present at his well about three years back when Haji Dilawar P.W.4 reached there and disclosed that the land in dispute had been purchased by Sabir Shah etc. and Ameer Khan disclosed that he would pre-empt the sale; that subsequently, 3/4 duty; later they came to Attock, informed these facts to an Advocate, whose Clerk prepared the notices Exh.P8 to Exh.P11 which were thumb marked by Ameer Khan. P. W. 5 one of the plaintiffs Izzat Khan appeared and stated that Ameer Khan deceased was his father and he along with his brothers, sisters and mother are the legal heirs of said Ameer Khan, who filed the suit for pre-emption; that at the time of performance of Talb-e-Muwathebat as well as issuance of notices he was not present with his father; that land was sold in consideration of Rs. 1,50,000, if his superior right of pre-emption be declared by the Court he was ready to pay whole of the consideration amount. Learned counsel for the respondents while getting exhibited the documentary evidence in the shape of Jamabandi Exh.P12 and Exh.P13 and copy of Mutation Exh.P14 (Exhibit number is not clear) and receipt Exh.P15 under objection closed the evidence.
5. On the other hand, one of the petitioners-defendants Akbar Shah appeared as DW-1 and stated that he purchased the land in dispute in consideration of Rs.1,50,000. He was not issued any notice nor any "Jirga" was convened and plaintiffs-respondents had no superior right of pre-emption. Learned counsel for the petitioners-defendants closed the evidence.
6. Learned trial Court vide judgment and decree dated 30-1-1999 while deciding Issues Nos. 1, 2, 3, 4 and 7 in favour of plaintiffs-respondents against the defendants-petitioners, Issues Nos. 5 and 6 in negative decreed the suit. Feeling aggrieved defendants-petitioners preferred an appeal, which was dismissed vide impugned judgment and decree dated 14-1-2001 by the learned District Judge, Attock while maintaining the findings passed by the learned trial Court on all the issues. Hence, this revision petition by the defendants-petitioners.
7. Learned counsel for the petitioners-defendants argued that impugned judgments and decrees are against law and facts of the case; that findings of the both the learned courts below on all the issues are erroneous and unsustainable in the eye of law; that according to the plaint the plaintiffs-respondents came to know about the sale on 16-10-1995 but according to P.W.3 Dilawar Khan whose statement was recorded on 12-10-1998, he visited Patwari about less than three years ago and on the following day informed the plaintiff about the sale in dispute, which means that he came to know about the sale prior to 12-10-1995 and thus did not make talabs in accordance with law; that P.W.3 had contradicted the plaintiffs so far as date of acquiring knowledge of sale in dispute is concerned. Learned counsel further referred P.W.4 Faqir Muhammad who deposed that about 3 years ago he along with Amir Khan plaintiff was sitting on a well when Dilawar P.W.3 came there and informed the original plaintiff about the sale. Further adds that there is no evidence available on record that the information with regard to sale in dispute was received by the plaintiff on 16-10-1995; that plaintiff Amir Khan himself did not appear in the witness box and no substantial evidence with regard to performance of talabs is available with the plaintiffs-respondents; that as "Talb-e-Muwathebat" was not proved on record and the evidence available on record is inconsistent with the averments of the plaint as asserted by the plaintiffs-respondents therefore, when "Talb-e-Muwathebat" is not proved subsequent "Talb-e-Ishhad" also becomes irrelevant. Prayed that findings of the both the learned Courts below on all the issues, specially on Issue No.2 are unsustainable in the eye of law. While relying on 2009 SCMR 673 (Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed), 2003 CLC 282 (Ali Muhammad v. Ghulam Muhammad), 2009 SCMR 630 (Haq Nawaz v. Muhammad Kabir), 2009 SCMR 678 (Muhammad Suleman v. Shaukat Ali), 2007 SCMR 1036 (Khyber Khan and others v. Haji Malik Amanullah Khan) and 2007 SCMR 1531 (Ali Muhammad v. Muhammad Bashir) prayed that revision petition be allowed.
8. Conversely, learned counsel for the respondents-plaintiffs has opposed this petition on the ground that both the learned courts below have rightly evaluated the evidence available on record; that both the learned courts below passed concurrent findings of fact about the performance of talabs and all the remaining issues. Prayed that this petition be dismissed.
9. I have heard and considered the- arguments addressed by learned counsel for the parties.
10. If the averments of the plaint are seen, predecessor-in-interest of the respondents Ameer Khan in para. 2 specifically mentioned that:-
11. Unfortunately, said Ameer Khan expired during the pendency of the suit and one of the plaintiffs/his legal heirs namely Izzat Khan appeared but he did not state even a single word about the performance of Talb-e-Muwathebat by his father. However, plaintiff examined Dilawar Khan the alleged informer who in his statement stated as under:--
This statement was recorded on 12-10-1998. If this statement is taken as it is, it means that informer informed Ameer Khan at least on 12-10-1995 about the sale in question. If the statement of P.W.4 Faqir Khan another witness of performance of Talb-e-Muwathebat is seen, whose statement was also recorded on 12-10-1998, stated that it was about three years back when Haji Dilawar P.W.3 came and informed about the performance of Talb-e-Muwathebat and he stated that 3/4 days later they went to Attock for performance of "Talb-e-Ishhad". If the plaint is seen a specific date as 16-10-1995 is shown the date when "Talb-e-Muwathebat" was performed by deceased Ameer Khan. It is admitted proposition of law as held by the Hon'ble Supreme Court of Pakistan in so many judgments that performance of Talb-e-Muwathebat as required under section 13 of Punjab Pre-emption Act, 1991 should be proved while providing exact date, time, place as well as name of the informer and Majlis. Talb-e-Muwathebat as is now clear is a jumping demand which immediately should have been pronounced, even delay of minutes can adversely effect right of a prospective pre-emptor. In this case as Talb-e-Muwathebat was not proved, therefore, while relying on the recent authoritative pronouncement of Hon'ble Supreme Court of Pakistan reported as 2009 SCMR 673 (Mst. Saleem Akhtar v. Chaudhry Shauk Ahmed) their Lordships at page 677 of the judgment in para. 5 have specifically observed as under:--
"Learned counsel for the respondent is right in submitting that the law declared by this Court in the case of Pir Muhammad (ibid) was followed in the latest judgments of Muhammad Iqbal and Bashiran Begum (ibid). In view whereof it is by now the settled law that it would be mandatory for a plaintiff in a suit for pre-emption to incorporate in the plaint the date, time and place of performance of Talb-i-Muwathibat and date of issuing the notice of Talb-i-Ishhad in terms of section 13 of the Act, otherwise plaintiff's suit deserved to be dismissed. As the appellant failed to plead qua making of Talb-i-Muwathibat in the plaint according to thy. fiarameters of law laid down by this Court in the cases of Muhammad Iqbal v. Ali Sher 2008 SCMR 1682, Bashiran Begum v. Nazar Hussain PLD 2008 SC 559 and Pir Muhammad v. Faqir PLD 2007 SC 302, therefore, her suit deserved to be dismissed on this short ground."
12. In this view of the matter, when "Talb-e-Muwathebat" is not proved, remaining issues if decided in favour of the plaintiffs-respondents make no much difference, Resultantly, while allowing this revision petition findings of the learned trial Court on Issues Nos. 1, 2 and 6 upheld by the learned appellate Court are set aside and suit filed by the respondents-plaintiffs is hereby dismissed.
H.B.T./A-259/L Suit dismissed.