MUHAMMAD AKRAM Versus Mst. ZAINAB BIBI

KHALIL-UR-REHMAN RAMDAY, J.--- Mst. Zainab Bibi respondent filed two separate suits to pre-empt two transactions of sale of the suit-land made in favour of Akram petitioner. Both the suits were dismissed essentially on the ground that the pre-emptor had failed to establish the making of the requisite "Talbs" in the prescribed manner. The learned Appellate Judge, however, reversed these findings; set aside the trial Court judgments and decrees and decreed both these suits. On being approached through two revision petitions, the Lahore High Court concurred with the appellate judgments and affirmed the conclusions reached by the Appellate Court.

2. Hence these petitions.

3. We have re-examined the matter in the light of the submissions made by the learned counsel for the parties and the material available on record.

4. From a perusal of the plaints filed in these suits, we find that the pre-emptor had elected not to disclose the source of her information about the sales in question nor had she opted to take the trial Court into confidence about the place where and the date on which she had received the said information. Three witnesses appeared at the trial in support of her case i.e. Yousaf (P.W.1), Hayat (P.W.2) and the husband and the attorney of the pre-emptor, namely, Sadiq (P.W.3). The first two were not present with the pre-emptor when she had received information about the transactions of sale in question. They only said that the pre-emptor had come to know of the same about three months after the said transactions when she called them and then asked them to go to the vendee to claim the suit-land, which they did. They added that two days thereafter, the vendee refused to return the suit-land to the pre-emptor and eight days thereafter, they accompanied the said pre-emptor and her husband, to the District Courts where a notice (Talb-i-Ishhad)' was got written and was then posted to the vendee. To the same effect was the statement of the said Sadiq P.W. who had, however, added that it was the vendor and the Patwari who had told him about the sale in question and that he had, in turn, told his pre-emptor wife about it who had then made the first Talb in their house.

5. The trial Court non-suited the pre-emptor on account of non-disclosure of the exact date on which she had acquired knowledge about the said transaction of sale and then taking the said date to be three months from the attestation of the mutations in question, as claimed by the said witnesses, found that the Talb-i-Ishhad had been made much after the period prescribed for the purpose.

6. The learned Appellate Judge was, however, of the opinion that the making of the first two requisite Talbs by the pre-emptor stood sufficiently proved on record, that the learned trial Judge had been Too Technical by Watch" in calculating the time limit for making Talb-i-Ishhad; that calculating the date of knowledge in question on the basis of "Three Months" as mentioned by the witnesses was not justified as the said three months should not have been literally taken to be three months because the appellant and her witnesses were an " Illiterate lot of the rural area " and could not "Be meticulous on the point of calculating and counting each and every day " and that the preemptor had " complied with the legal requirements expected of her as an illiterate lady ". And it was for the said reasons that the trial Court judgments had not found favour with the Appellate Court and had been set aside.

7. There appears to be some confusions about the status of the right of pre-emption and its enforcement, and we therefore, consider it necessary to say a few words about the same.

8. It is the provisions of section 5 of the Punjab Pre-emption Act of 1991 which recognized this right to pre-empt sales of immovable properties and then conferred the same right or persons identified through subsection (1) of section 6 of the said Act. The provisions of section 13(1) thereof are, however, emphatic in declaring that the said right "shall be extinguished" unless a person possessed of the same makes demands of pre-emption i.e. Talb-i-Muwathibat, .Talb-i-Ishhad and Talb-i-Khusumat in the prescribed order; the prescribed manner and within the stipulated time. The making of these Talbs is thus, not a mere procedural formality prescribing a mode for the enforcement of the right of pre-emption but on the same depends the very life and the continued existence of the said right. It may be added that the law has not granted any power to any Court to condone any deficiencies or deviations in the matter of making the said demands or to show any laxity in the said matter because the consequences of failure to perform the said Talbs in the prescribed manner, stand determined by the law itself i.e. " Extinction of the said right ". Hence the vital importance of these demands and making of the same strictly in accordance with the requirements of the said section 13.

9. As per the said provisions, Talb-i-Muwathibat is the first in line and has to be made by the pre-emptor "immediately" on acquiring knowledge of the sale intended to be pre-empted by him and in fact the said demand has to be made in the same sitting or meeting (Majlis) in which he comes to know of the said sale. Next in order is the Talb-i-Ishhad which has to be made as soon, after the making of Talb-i-Muwathibat, as possible and not in nay case "later than two weeks from the date off knowledge " of the said sale.

10. In order to succeed, therefore, the pre-emptor. would need to establish that he had made the first demand, immediately on coming to know of the sale and that he had then made the second demand within two weeks thereof. This is how and why this date of knowledge acquires vital significance in pre-emption suits because in the absence thereof it would not be possible for the Courts seized of the matter to determine whether the first demand had or had not been made immediately upon coming to know of the sale in question and also whether the second demand had or had not been made within two weeks of the same. This date is thus, the pivot on which the fate of a pre-emption case rests.

11. It is for this reason that the Courts have to insist upon the disclosure of the date on which the pre-emptor had acquired knowledge of the sale being pre-empted by him and if he chooses not to do so, for whatever reason, then adverse inferences have to be drawn against him. And we may repeat here that no special provisions exist in the law in question envisaging grant of any concessions or allowances to the ones who are illiterate or to the ones who come from the rural areas. It may be added that even ignorance has never been considered a valid defence for any non, mis or mal-feasance. When the law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner.

12. In the present case, the pre-emptor had elected not to mention the date on which she had acquired knowledge about the sale transaction in question. Even her witnesses, who remembered the sale price of the suit-land and also the days which had been consumed by the vendee to decide whether to accept the Talb-i-Muwathibat or to refuse the same and who also remembered the exact number of days after which they had accompanied the pre-emptor to the local Courts for the purposes of making Talb-i-Ishhad had said only that the pre-emptor had got to know of the sale three months after the same had been transacted. This was thus, the only basis provided by the plaintiff to the Court to calculate time for the subsequent events and no exception could, therefore, be taken to the calculation of the same on the basis of the said data. As has been mentioned above, no power vests in any Court either to enlarge the time prescribed by the provisions of section 13(1) and (3) of the said Act of 1991 or to condone the delay occurring in doing the needful.

13. Having thus, examined the legal and factual aspects of the matter, we find that the conclusions drawn by the learned trial Judge about the said legal and factual issues were well-founded and were not open to any exception and that the interference by the learned Appellate Judge therewith, was unwarranted.

14. Consequently, both these petitions are converted into appeals which are allowed as a result whereof the impugned judgment of the Lahore High Court dated 11-6-2004 passed in Civil Revisions Nos.67 and 68-D of 1999 as also the appellate judgments of the learned Additional District Judge dated 25-9-1998 which had been affirmed by the learned High Court through the impugned judgment, are set aside. As a further consequence thereof the two suits filed by Mst. Zainab respondent are dismissed.

15. No orders as to costs.

M.H./M-37/SC Appeal allowed.