MUHAMMAD BASHIR and others Versus ABBAS ALI SHAH

TASSADUQ HUSSAIN JILLANI, J.--- This appeal is directed against the judgment, dated 28-6-2005 passed by a learned Judge of the Lahore High Court whereby he allowed respondent's appeal and reversed the judgment and decree of the learned Additional District Judge, dated 3-4-2003 through which while reversing the judgment and decree of the learned trial Court dated 30-3-1995 respondent's suit was dismissed. By virtue of the impugned judgment, respondent-pre-emptor's suit stands decreed.

2. Facts briefly stated are that qua the sale transaction evidenced through Mutation No.255, dated 15-12-1994; respondent-plaintiff respondent filed a pre-emption suit and claimed superior right of pre-emption being co-sharer in the suit-land as also in amenities and asserted that the requisite Talbs had been performed as required by law. The suit was contested, in terms of divergent pleas issues were framed, evidence was led and ultimately the suit was decreed on 16-12-1997 which was set aside in appeal by the learned Additional District Judge on 3-4-2003 but the same has been reversed by the learned High Court.

3. During trial, respondent-plaintiff produced three witnesses namely P.W.1 Abbas Ali, P.W.2 Abid Hussain and P.W.3 Noor Muhammad. The documentary evidence was also led which included Mutation Exh.P.46. Original notices of Talb-i-Ishhad Exh.P.15 to Exh.P.28, registered envelopes with A.D. slips are Exh.P.1 to Exh.P.14. In defence the appellants produced two witnesses namely D.W.1 Bashir son of Fazal one of the vendees and D.W.2 Ashiq Hussain son of Barkat.

4. Learned counsel for the appellant submitted that the learned High Court fell in error in reversing the judgment and decree of the learned Appellate Court whereby respondent's suit had been dismissed; that the requisite Talbs as mandated in section 13 of the Pre-emption Act had not been proved; that respondent-plaintiff expressed a belated Talb-i-Muwathibat inasmuch as the sale transaction was evidenced by mutation dated 15-12-1994 whereas according to respondent-plaintiff's own showing in Talb-i-Muwathibat was made on 4-1-1995 and he claimed to have sent notices of Talb-i-Ishhad on 10-1-1995. Both the Talbs were made beyond the statutory period. He contended that the explanation given for the belated Talb-i-Muwathibat that they came to know about the sale transaction on 4-1-1995 is not only belied by the evidence on record but is also repellant to commonsense as it is unbelievable that both the parties residing in the same village would not have come to know about the sale mutation immediately i.e. on 15-12-1994 which was altered in "Ijlas-i-Aam". Coming to notice of Talb-i-Ishhad, learned counsel maintained that there is nothing in evidence to show that the service of this Talb was effected on the appellant; that mere sending notice of Talb-i-Ishhad through registered post acknowledgement due is not sufficient; that the requirement of sending notice through registered post acknowledgement due reflects the intent of the law-maker that there has to be personal service on the, addressee and if there was refusal on his part, it had to be proved through a responsible official of the Postal Department and mere endorsement on acknowledgement due card to the effect that it was refused would not constitute service particularly when the appellant/defendant appeared and denied the service. In support of the submissions made, the learned counsel relied on:

(1) Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali 1968 SCMR 828 at 832, (2) Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251, (3) Khair Muhammad v. Akhtar Hussain 1983 CLC 302 at 304, (4) Amir Din v. Muhammad Siddique 1982 SCMR 354, (5) Water and Power Development Authority v. Saeed Badar PLD 1991 SC 660 at pages 665 and 666, (6) Messrs Journalist Publication (Pvt.) Ltd. v. Mst. Mumtaz Begum alias Mustari Begum 2004 SCMR 1773, (7) Haji Muhammad Ayub Khan Afridi v. Special Appellate Court, Peshawar 2006 SCMR 1275 at 1285 and (8) Haji Lal Shah v. Abdul Khaliq 2004 SCMR 409 at 411.

5. Learned counsel for the respondent-plaintiff defended the impugned judgment and submitted that the admission attributed to the respondent-plaintiff (in cross-examination of P.W. to the effect that the date of attestation (15-12-1994) is the date of possession of the vendee is against the record which is evidenced from the statement of D. W.1. The learned Additional District Judge, in dismissing, the suit, had relied on this so-called admission which was not tenable and has rightly been reversed by the High Court. The testimony of P.W. (examination-in- chief) that he got knowledge of the afore-referred mutation on 4-1-1995 stands corroborated by P.W.2 and P.W.3. Talb-i-Muwathibat having been made the day he was informed of the sale and notices of Talb-i-Ishhad sent within the stipulated period in terms of section 13 it could not be said that the Talbs were not performed in time.

6. Dilating on Talb-i-Ishhad, learned counsel for the respondent submitted that a bare reading of section 13(1) of the Pre-emption Act indicates that the sending of notice through registered post acknowledgement due is sufficient compliance with requirement of law and it would raise a presumption that the notice stood served. Moreso when there was an endorsement by the official of the Postal Department to the effect that the defendant had refused to effect the service. According to him, sending a notice by registered post acknowledgement due gives rise to a presumption of service under Article 129 of Qanun-e-Shahadat Order, 1984 read with section 27 of the General Clauses Act particularly when it is received back with endorsement that the addressee refused to accept service. In support of the submissions made, learned counsel relied on:

(i) Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410, (ii) Bashir Ahmad v. Mumtaz Khan PLD 1965 Lah. 126, (iii) Sher Afzal v. Mohal Lal AIR 1926 Lah. 520, (iv) Atar Ali v. Abed Ali PLD 1954 Dacca 158 at 172, (v) Sultan Ahmed alias Ladu Mia v. Syed Ahmad PLD 1967 Dacca 392, (vi) Nazir-ud-Din v. Muhammad Ali 1980 CLC 203, (vii) Pridino v. Khurshid Begum 1989 SCMR 880, (viii) Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251, (ix) Muhammad Sharif v. Maqbul Ahmad 1974 SCMR 136, (x) Anil Kumar v. Nanak Chandra Verma AIR 1990 SC 1215 and (xi) Har Charan Singh v. Shiv Rani AIR 1981 SC 1284.

7. We have considered the submissions made, have gone through the evidence on record and the precedent case-law relied upon by the learned counsel for the parties.

8. Both the learned counsel mainly focused their submissions on Issue No.5 i.e. "whether the plaintiff has fulfilled the demand of Talbs under pre-emption law"' OPP. The learned trial Court decreed the suit and decided the afore-referred issue in favour of the respondent-plaintiff by holding as follows:--

"The relevant evidence has already been discussed above. The Talb-i-Ishhad has been duly corroborated by the evidence of P.W. to P.W.3. The original postage receipts are on record as Exhs.P.29 to P.42 which are dated 10-1-1995. As such the notices Exhs.P.15 to P.28 are within period of limitation of first Talb dated 4-1-1995. It is evident from notices Exhs.P.15 to P.28 that the plaintiff had mentioned the first Talb having been made by him earlier. All these notices are signed by the witnesses."

9. In reversing the trial Court's judgment and decree, the learned Appellate Court, however, reversed the finding and came to the conclusion that "Talb-i-Muwathibat" was belated and that there was no tenable evidence to prove that notice of Talb-i-Ishhad had been served. It held as follows:--

"From the perusal of record and after hearing arguments advanced by learned counsel for both the sides, it is found that the respondent instituted suit for possession alleging superior pre-emptive right against impugned mutation Exh.P.46 dated 5-12-1994 while respondent sent notices to the appellants Exh.P.15 to Exh.P.28 through registered acknowledgement receipt Exh.P.1 to Exh.P.14 dated 10-1-1995, registered envelopes were unserved to the appellants that note the appellants refused to receive the notices. Respondent produced oral evidence as P.W. he himself, P.W.2 Abid Hussain and P.W.3 Noor Muhammad but the respondent failed to produce evidence of responsible official of post office or postman, affirming version of respondent that the appellant refused to receive mandatory notices of Talb-i-Ishhad because appellants have specifically denied in the written statement that no notice was issued to the appellants and that were not delivered to the appellants and all the proceedings in this regard were fake and fictitious. In this situation respondent was duty bound to produce any responsible official of post office department which, was not done."

9-A. The learned High Court, however, set aside the judgment of the learned Appellate Court in revision on the grounds that three witnesses produced by the respondent-plaintiff were credible; that there was no material discrepancy in their statements; that P.W.2 and P.W.3 are attesting witnesses of Talb-i-Ishhad; that there was no denial that notices were correctly addressed and that the postal receipts have been appended and produced as Exhs.P.24 to P.42 while the copies of registered A.D. receipts were Exhs.P.1 to P.14 which was sufficient compliance of the statutory provisions required for performance of Talb-i-Ishhad.

10. In terms of section 13 of the Pre-emption Act, the performance of Talbs is a condition precedent as it stipulates that the "right of pre-emption of a person shall be extinguished" unless the three Talbs are performed. The said provision read as follows:--

"13. Demand of Pre-emption .--- (1) The right of pre-emption of a person shall be extinguished unless such person makes demands of pre-emption in the following order, namely:--

(a) `Talb-i-Muwathibat';

(b) `Talb-i-Ishhad'; and

(c) `Talb-e-Khushumat'.

(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 acknowledgement 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."

A close reading of the afore-referred section would indicate that the requirement of first demand i.e. Talb-i-Muwathibat being immediate is to ensure that the potential pre-emptor genuinely and bonafidely wishes to purchase the land sought to be pre-empted. This first demand does not envisage the presence or knowledge of the vendee. The second demand i.e. Talb-i-Ishhad, however, is the only Talb which postulate putting the vendee on notice about the pre-emptor's desire to purchase and the law mandates that it has to be sent through registered post acknowledgement due.

11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due". This signifies that the intention of law is not merely a formal notice on the part of the pre-emptor conveying his intention to pre-empt but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgement due" redundant. The service of the addressee, as prescribed in law therefore, is imperative. If the acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it".

12. While there is no cavil with the proposition that in terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgement due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement.

13. In Tekchand Devidas v. Gulab Chand Chandan Mal AIR 1957 Madhya Bharat 151 Gwalior Bench, reiterating an earlier view in Madh BLJ 1955 HCR 702, it was held that:-

"Where a notice is sent by registered post and it is alleged that it has been returned with the postal endorsement that the addressee refused to accept it, the endorsement has to be proved by calling in evidence the postman who tendered the registered letter to the addressee. Unless it is so proved the endorsement is not admissible in evidence in proof of the allegation."

14. In Anil Kumar v. Nanak Chandra Verma AIR 1990 SC 1215, the learned Court was of the view that endorsement "refused" was sufficient to raise presumption of service. The Court observed that in such cases, there could be no hard and fast rule; that in certain cases the statement of an addressee could be sufficient to rebut the presumption but if the testimony of the addressee is inherently unreliable, the position may be different and the question in each case is always whether there was sufficient evidence to discharge the initial burden. The Court found that in the said particular case since the addressee was having business premises at Ghaziabad, the plea taken by him that he remained away from the said place for a long period (from 19-12-1984 to 1-1-1985) was not believable and therefore, the concurrent findings raising presumption of service were unexceptionable.

15. In Piridno v. Khurshid Begum 1989 SCMR 880, the question as to service of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 issued to the appellant who was undergoing imprisonment at the relevant time was rightly held by the two Courts below on the basis of mere endorsement of "refusal" thereon made by the postal authorities came up for consideration. The Court held that where addressee of a notice appeared in the Court and denied service of notice, legal presumption of service was repudiated and the sender of the notice would be obliged to prove genuineness of signatures of addressee on endorsement of refusal by its comparison with admitted one or by examination of postman to prove that the notice was offered to' the addressee and the same was refused. Moreso, when the addressee was in jail and the endorsement did not contain any verification from the jail authorities that the letter was offered to a prisoner and he refused.

16. In Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251, the moot point again was whether service of notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958) regarding an ejectment petition filed under the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) had been effected on the appellant who denied her signatures on the acknowledgement card. It was held that the appearance of the addressee and denial of service was sufficient to rebut the presumption and the trial Court should have got the signatures of the appellant compared with the signatures on the admitted documents or the postman ought to have appeared to prove that the notice of ejectment issued was offered, to the appellant for service and that she had received it and signed it.

17. In Nazir-ud-Din v. Muhammad Ali 1980 CLC 203, the import of presumption in terms of section 115 of the Evidence Act and section 27 of the General Clauses Act was considered and it was held that where addressees did not appear in Court as witness to deny service, a presumption would arise against the addressees of having refused service and therefore, of having been served.

18. In Khair Muhammad v. Akhtar Hussain 1983 CLC 302, the question of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), sent under registered cover acknowledgement due came up for consideration and the Court came to the conclusion as follows:--

"Similarly if a notice with correct description of addressee is posted and is returned back with the endorsement of "refused" by the postal authorities, the presumption of service of notice on the addressee will arise in the circumstances. However, the presumption of service in both cases shall stand rebutted if the addressee appears in Court and makes a statement on oath that he did not receive the letter alleged to have been sent to him or that he did not refuse to accept the service of letter. In such cases the initial burden of proving service of letter shall continue to remain on the person who relies on the service of such letter. This burden can be discharged by calling the postman concerned who delivered the letter or who made the endorsement of "refusal"."

19. In Fateh Muhammad v. Gul Sher 2000 CLC 409, the effect of service of Talb-i-Ishhad through registered post acknowledgement due was commented upon and the Court was of the view that since, `the postman had also not been produced to establish that these notices reached to they destination, mere notice is not enough in the matter; its receipt by the defendant had to be established as laid down in case of Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292.

20. In Qaiser Zamani v. Rasheeda Begum 1985 CLC 596, the question of service of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance (VI of 1959) was under consideration and the notice had been sent through registered post acknowledgement due but the addressee denied having received the notice. While dilating on the presumption under section 114 of the Evidence Act (now Article 129 of Qanun-e-Shahadat Order) read with section 27 of General Clauses Act, the Court held as under:--

"As regards presumption of service under section 114 of the Evidence Act read with section 27 of .General Clauses Act, suffice it to say that Mst. Qaiser Zamani appeared in Court and stated on oath that she did not receive the notice intimating change of transfer. In the circumstances of the case particularly when there was no evidence as to what was contained in the Registered envelope Al, it can be safely observed that no such notice as was required by law was served upon her. Any admission of tenancy, under the present landlady in a suit filed for recovery of rent subsequent to the ejectment proceedings would not avail the respondent landlady. Rent Controller proceeded on the assumption that the ejectment application was itself a sufficient notice."

Similarly in Amroz Khan v. Arbab Muhammad Ghalib PLD 1980 Pesh. 163, the question of service of notice under section 13-A of the West Pakistan Urban Rent Restriction Ordinance was a point in issue and the Court was of the view that:--

"The primary evidence was that of the postman who allegedly took the registered notice to the addressee. Failure to produce the postman in support of the claim of Aftab Muhammad Ghalib negates his version that the tenant refused to take delivery of the registered notice in the case of Nawab Din v. Rafique Ahmed (1) the Lahore High Court has held that where the addressee denied the service of statutory notice the requisite proof to establish the service is the production of the postman as witness."

21. An analysis of the case-law discussed in the preceding paragraphs would show that when a presumption is raised in terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act on a question of fact, it would stand rebutted if the addressee makes a statement on oath denying service and the onus to prove service would continue to be on the party relying on such a notice unless of course there is other evidence to indicate that the denial of the service by the addressee is against the record. In Bashir Ahmad v. Mumtaz Khan PLD 1965 Lah. 126, despite denial of service by the addressee, the Court held that the presumption had not been rebutted as the addressee, it was in evidence, had otherwise knowledge of the circumstances/information which was sought to be conveyed through the notice in question. The Court observed at page 134 as under:--

"In this particular case, the strong presumption which arises in favour of Mumtaz Khan respondent under section 114 of the Evidence Act, has been held as not rebutted by the denial by Rao Bashir Ahmad that the notice was not brought or tendered to him by any postman. It has been admitted by him that Mumtaz Khan had told him that the house had been transferred to him and that he had refused to pay the rent to him until the revisional proceedings, which he had initiated, were decided."

21. In the instant case, the precise, case of the respondent-plaintiff regarding notice of Talb-i-Ishhad in the plaint was that:--

22. Admittedly there was no personal notice, and mere endorsement of "refusal" would not constitute service, since the petitioner-defendant had denied service not only in written statement but also on oath while appearing in Court. The statement made by him in Court has been found by us to be reliable. In such circumstances, the presumption if any in terms of Article 129 of the Qanun-e-Shahadat Order stood rebutted and it was for the respondent-plaintiff to prove service by producing the postman who allegedly made the endorsement which has not been done.

23. For what has been discussed above, we are of the view that the respondent-plaintiff had failed to prove service of Talb-i-Ishhad by leading evidence tenable in law. hi reversing the judgment of the learned First Court of Appeal, the learned High Court, we may observe with respect, has not adverted to this factual aspect and the law declared in this regard. The impugned judgment is, therefore, not sustainable. Resultantly; this appeal is allowed and the impugned judgment; dated 28-6-2005 passed by the High Court is set aside and that of the learned Additional District Judge dated 16-12-1997 dismissing respondent's suit is restored with no order as to costs.

M.H./M-36/SC Appeal allowed.