PERVAIZ ANJUM GHAURI Versus ABDUL RAHIM

MUHAMMAD MUNIR KHAN, J. ‑‑‑These four petitions for leave to appeals (Nos. 771‑L to 774‑L/1993) which we propose to dispose of through this single judgment arise from the facts that on 23‑5‑1987, Pervaiz Anjum Ghauri and Abdul Munir Ghauri (petitioners) Filed four separate suits for possession by pre‑emption on the basis of co‑sharership in Khata and Yak Jaddi of the vendors, in respect of four independent transactions of sale of land by Abdul Hameed Ghauri and three others, in favour of Abdur Rahim and others (respondents) in the Court of Civil Judge, Kamali'a, District Toba Tek Singh. The suits were resisted by the respondents. The trial Court dismissed the suits on 13‑12‑1988. The appeals filed by the petitioners before the District Judge were dismissed on 5‑3‑1989. Revision petitions were filed in the Lahore High Court which were accepted on 13‑12‑1989 and the cases were remanded for disposal afresh.

2. The trial Court again dismissed the suits on 25‑5‑1991 on the grounds that the plaints did not disclose the essentials of Zarar Zaroorat, as required under the Punjab Pre‑emption Act, 1991 and that the notice of demand was also not given as required by the same Act. The petitioners filed appeals before the learned District Judge, Toba Tek Singh against these judgments and decrees of the trial Court which were dismissed on 4‑7‑1992. Feeling aggrieved, the petitioners filed separate revision petitions against the judgments of the learned District Judge passed in four appeals of the petitioners, which too were dismissed through single judgment dated 14‑2‑1993.

3. Before us, the learned counsel for the petitioners has relied on the provisions of section 34(2) and 35(2) of the Punjab Pre‑emption Act, 1991 to contend that since the suits of the petitioners were pending between the first day of August, 1986 and 28th of March, 1990, the proceedings in these cases were to be governed and continued in accordance with the provisions of the Punjab Pre‑emption Act, 1913 which did not require the disclosure of Zarar/Zaroorat, nor the disclosure of Talbs as envisaged by section 13 of the Punjab Pre‑emption Act, 1991 and that in any case the averments made in paragraphs 4 and 5 of the plaint satisfy the requirements of Talbs in accordance with the provisions of section 13 of the Punjab Pre‑emption Act, 1991.

4. We have considered the submissions made by the learned counsel carefully. We do not feel persuaded to agree with him. The provisions of law and the averments made in paragraphs 4 and 5 of the plaints may be reproduced advantageously:‑‑

(1) Sections 13 34(2 and 35(2) of the Pre‑emption Act. 1991:

`13.Demand of pre‑emotion.‑‑(1) The right of pre‑emption of a person shall be extinguished unless such person makes demands of pre?emption in the following orders, namely:‑‑

(a) `Talb‑i‑Muwathibat';

(b) `Talb‑i‑Ishhad'; and

(c) `Talb‑i‑Khusumat'.

Explanation.‑‑‑(I) `Talb‑i‑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 the right of pre?emption.

Note.‑‑‑Any words indicative of intention to exercise the right of pre?emption are sufficient.

(II) `Talb‑i‑lshhad' means demand by establishing evidence.

(III) `Talb‑i‑Khusumat` means demand by filing a suit.

(2) When the fact of sale comes within the knowledge of a pre‑emptor through any source, he shall make Talb‑i‑Muwathibat.

(3) Where a pre‑emptor has made Talb‑i‑Muwathibat. under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb‑i‑Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgment due, to the vendee, confirming his intention to exercise the right of pre‑emption‑

Provided that in areas where owing to lack of post office facilities it is not possible for the pre‑emptor to give registered notice, he may make Talb‑i‑Ishhad in the presence of two truthful witnesses.

(4) Where a pre‑emptor has satisfied the requirements of Talb‑i-?Muwathibat under subsection (2), and Talb‑i‑Ishhad under subsection (3) he shall make Talb‑i‑Khusumat in the Court of competent jurisdiction to enforce his right of pre‑emption.

34(2). ' Notwithstanding anything contained in this Act, in the cases and appeals filed under the Punjab Pre‑emption Act, 1913 (I of 1913) in which judgments and decrees had been passed before the Ist day of August, 1986, further proceedings if any relating to such cases and appeals shall notwithstanding the repeal of the said Act be governed and continued in accordance with the provisions thereof.

35 (2). Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre‑emptor establishes that he had made `Talb‑i‑Ishhad' in the presence of two truthful witnesses."

(II) Paragraphs 4 and 5 of the Plaints:

5. The plain reading of subsection (2) of section 34 of the Punjab Pre?emption Act, 1991 will show that this provision applies to cases in which judgments and decrees had been passed before the Ist August, 1986. The suits in these cases were filed in 1987. Therefore, the provisions of section 34 (2) of the Punjab Pre‑emption Act, 1991 are not relevant to the cases in hand. The averments made in paragraphs 4 and 5 of the plaints, as reproduced above, also fail to satisfy the requirements to Talbs as envisaged by section 13 of the Punjab Pre‑emption Act, 1991, inasmuch as it has nowhere been stated in the plaints that Talb‑i‑Ishhad was made in the presence of two truthful witnesses; nor has been stated in the plaints that after coming to know of the fact of sale the petitioners/pre‑emptors had made `Talb‑i‑Muwathibat' and thereafter within two weeks from the date of knowledge had made `Talb‑i‑Ishhad' by sending notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendees, confirming their intention to exercise the right of pre‑emption. The learned Single Judge of the High Court has elaborately discussed the contentions raised before him by the counsel for the petitioners and has rejected the same for good and cogent reasons. We do not see any valid reason to interfere with the well‑reasoned judgment of the High Court

6. Leave to appeal is refused in all the petitions.

A.A./P.250/SC ??????????????????????????????????????????????????????????????????????????????????? ?????????? Leave refused.