Mst. SALEEM AKHTAR Versus Chaudhry SHAUK AHMED

MIAN HAMID FAROOQ, J.--- This appeal by leave of the Court proceeds against the judgment dated 24-1-2000, whereby the learned Lahore High Court, Rawalpindi Bench, Rawalpindi dismissed appellant's first appeal R.F.A. No.90 of 1996.

2. Brothers and sisters of the appellant (vendors) sold the questioned land through sale-deed dated 19-2-1994, registered on 20-2-1994, in favour of the respondent (vendee), whereupon the appellant (pre-emptor) filed a suit for possession through pre-emption, inter alia, pleading that she has a superior right of pre-emption being co-sharer and owner of property in contiguity; that she had made the requisite Talbs and actual consideration of the property was Rs.3,50,000, but the ostensible price of Ks.5,50,000 was shown in the sale-deed. Respondent resisted the suit and besides raising preliminary objections, it was asserted that Talbs were not made in accordance with law. It was further the case of the respondent that he had incurred certain expenses, which he would be entitled to receive in the event appellant's suit is decreed. The learned trial Court framed the following issues:---

"(1) Whether the plaintiff has superior right of pre-emption qua the vendee-defendant? OPP.

(2) Whether the actual sale price of the suit property is Rs.3,50,000 and fictitious sale price of Rs.5,50,000 was fixed in the registered sale-deed in order to defeat the rights of the pre-emption? OPP.

(3) If issue No.2 is not proved, then what was the market price of the suit property at the time of sale? OPD

(4) Whether the plaintiff has fulfilled all the requirements of Talb? OPP

(5) Whether the plaintiff is estopped by her words and conduct to bring this suit? OPD

(6) Whether the suit property is situated within the limits of Municipal Committee ? If so, for what effect? OPD

(7) Whether the suit is not signed and verified by the plaintiff ? If so, at what effect? OPD

(8) Whether the suit is false and frivolous and the defendant is entitled to get special costs under section 35-A of C.P.C.? OPD

(9) Whether the defendant is entitled to get the incidental charges in case of decree? OPD

(10) Relief."

The learned trial Court recorded the evidence of the parties and after finding that the appellant could not prove Talb-i-Muwathibat dismissed the suit on the basis of findings on issue No.4, however, the issue regarding superior right of the appellant, was decided in her favour, Rs.5,50,000 was held to be the actual price of the suit-land and it was also held that respondent had incurred additional expenses for a sum of Rs.1,01,750, vide judgment and decree dated 24-4-1996. Appellant's first appeal R.F.A. No.90 of 1996 was dismissed by the learned Lahore High Court, Rawalpindi Bench, Rawalpindi, vide judgment and decree dated 24-1-2000. The appellant filed a petition Civil Petition No.613 of 2000 and this Court, vide order dated 2-2-2001, granted leave to appeal to the appellant, which reads as under:---

"Leave to appeal is granted to consider

(i) Whether the learned Judge in chambers of the High Court was not justified to concur with the finding of the learned trial Judge that the appellant failed to prove the performance of `Talb-i-Muwathibat' strictly in accordance with section 13(3) of the Punjab Pre-emption Act IX of 1991?

(ii) Whether the learned Judge in chambers of the High Court has rightly affirmed the finding of the learned trial Judge on the proof of 'Talb-i-Muwathibat'?

(iii) Whether the learned High Court was not justified to have upheld the findings of the learned trial Judge on the question that 'Talb i-Ishhad' having not been made strictly in accordance with section 13(I)(II) of the Punjab Pre-emption Act IX of 1991 with reference to the precedent from the Indian jurisdiction in Aliman Begum v. Ali Husan and another AIR 1923 All. 355(1) and Haji Raja Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore PLD 1994 S.C. 1, relevant at page 20?

Hence this appeal.

3. Learned counsel for the appellant submitted that judgments of both the Courts suffer from misreading and non-reading of the evidence on record and that although rest of the issues were decided in appellant's favour, yet she was non-suited on the issue that she failed to fulfil the requirements of Talbs, which were proved to be made in accordance with the law. He added that both the learned Courts though dismissed the suit but for different reasons. Learned counsel for the respondent, while supporting both the judgments, stated that in view of latest law on the subject the appellant's suit was rightly dismissed as she failed to make Talbs in accordance with the law. He relied upon Bashiran Begum v. Nazar Hussain PLD 2008 SC 559 and Muhammad Iqbal v. Ali Sher 2008 SCMR 1682.

4. We have heard the learned counsel for the parties and examined the available record. Upon examination of the plaint available at page 50 of the paper book, we find that appellant although in para.4 of the plaint pleaded that she came to know about the questioned sale in the 4th week of February, 1994 and in the same meeting announced to exercise her right of pre-emption, yet failed to mention about the date, time and place of making Talb-i-Muwathibat. It appears appropriate to reproduce para.4 of the plaint, which reads as under:---

It is evident from the afore-noted para. that appellant did not give the particulars about the date, time and place of making Talb-i-Muwathibat, which were held to be mandatory by this Court in the case reported as Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302. This Court in the case of Pir Muhammad (ibid) has held that in view of section 13(2) and (3) of the Punjab Pre-emption Act, 1991, it would be mandatory for a plaintiff to mention in the plaint the date, time and place of performance of Talb-i-Muwathibat. Relevant portion of the judgment is reproduced below:---

"...therefore, the question can conveniently be answered by holding that to give full effect to the provisions of subsections (2) and (3) of section 13 of the Act, it would be mandatory to mention in the plaint the date, time and place of performance of Talb-i-Muwathibat because from such date, the time provided by the statute i.e. 14 days under subsection (3) of section 13 of the Act shall be calculated. .. It is now a well-settled law that performance of both these Talbs successfully is sine qua non for getting a decree in pre-emption suit."

Learned counsel, when confronted with the said latest law on the subject, read para.5 of the judgment of Pir Muhammad (ibid), however, to our mind, even the said para. does not help the appellant.

5. 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 the parameters 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. Both the Courts did not commit any illegality in dismissing appellant's suit. Learned counsel for the appellant has not been able to refer to anything on record which could persuade us to interfere in the concurrent findings arrived at both the learned Courts.

6. For what has been discussed above, we do not find any merit in this appeal which is accordingly dismissed with no order as to costs.

M.B.A./S-11/SC Appeal dismissed.