MUHAMMAD RAMZAN vs LAL KHAN

' IRSHAD HASAN KHAN, J.---This direct appeal challenges the validity of judgment of the Lahore High Court, Rawalpindi Bench dated 5-12-1993 whereby the Civil Revision filed by the respondents was accepted and the suit of the appellant was dismissed.

2. The appellant instituted a suit for possession through pre-emption against the respondent in respect of the suit land purchased by the respondent from Mst. Baluchni and others vide Mutation No,735 dated 13-4-1991 at the ostensible sale price of Rs,1,60,000 on the ground of superior right of preemption being a co-sharer and owner of the land contiguous to the land sold. The suit was resisted by the respondent. In view of the pleadings of the parties, issues framed thereon and evidence led by them, the learned trial Court recorded a finding under issue No,1 that the appellant/plaintiff had a superior right of pre-emption in respect of the disputed land qua the vendee-defendant. It was also held under issue No,8 that the respondent/defendant had purchased the suit land in consideration of Rs,1,60,000 and that he was entitled to recover expenses towards registration fee etc., amounting to Rs,16,157 in the event of the suit being decreed in favour of the appellant/plaintiff. Notwithstanding these findings, it was held under issue No, 1 that the appellant/plaintiff had failed to fulfil all the requirements of Talabs under law. Consequently, the suit was dismissed vide judgment and decree dated 11-2-1992. On appeal, the learned Additional District Judge, Jhelum vide judgment and decree dated 13-2-1993 reversed the fmdings of the trial Court on issue No,1 and decreed the suit on payment of Rs,1,60,000. Being aggrieved with the aforesaid judgment and decree the respondent filed a revision petition before the Lahore High Court, Rawalpindi Bench whereupon the learned Judge in Chamber vide his judgment dated 542- 1993 reversed the finding of the learned Additional District Judge on issue No,1 and dismissed the suit of the appellant on the ground that the appellant/plaintiff failed to allege and prove the making of Talab-e-Mawathibat, inasmuch as there was neither any averment of making of Talab- e-Mawathibat nor any evidence in regard thereto.

3. After hearing the leaned counsel for the parties and going through the material on record, we are inclined to hold that demand for pre-emption was raised in the pleadings as contemplated by section 13 of the Punjab Preemption Act, 1991 (hereinafter called the Act) as is apparent from paras.

2, 4 and 5 of the plaint, but we are in agreement with the conclusion arrived at by the learned Judge in Chamber that the pre-emptor has failed to prove that he made Talab-e-Mawathibat before the filing of the pre-emption suit, inasmuch as the suit was instituted on 16-54991 whereas the mutation of sale was sanctioned in favour of the vendee on 13-4-1991, therefore, the appellant is deemed to have acquired knowledge of attestation of the mutation of sale within two weeks thereof. Section 13 of Pre-emption Act prescribes that the right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order :--

(i) Talab-e-Mawathibat; ,(ii) Talab-e-Ishhad; and (iii) Talab-e-Khasumat. Subsection (2) of section 13 of the Act provides that when the fact of sale comes within the knowledge of a pre- emptor through any source, he shall make Talab-e-Mawathibat.

4. The right of pre-emption being a very weak right in property, section 13 of the Act contemplates a maximum period of two weeks for making Talab-i-Ishhad and for failure to do so the right of pre- emption is extinguished. It is necessary for the pre-emptor to make reference to his first demand, the C Talab-Mawathibat while making the second Talab, the Talb-i-Ishhad. The rationale behind is to put restriction on exercise of said right, which is based on a tradition of the Holy Prophet (peace be upon him). Refer Muhammad Isma il Qureshi and another v. Government of Punjab (PLD 1991 FSC 80). Also refer Mir Sahib Khan v. Muhammad Rauf Khan (1992 SCM R 1780) and Zafar Ali v. Zainul Abidin and another (1992 SCM R 1886) wherein it was held that non-fulfilment of requirements of Talabs would not entitle the plaintiff to decree for pre-emption.

5. Here, neither the appellant while appearing as his own witness as P.W.3 nor his remaining witnesses namely, Muhammad Akram P.W.1 and Muhammad Yousuf P.W.2 have stated with particularity as to when the fact of sale came to the knowledge of the appellant and that he made Talab-iMawathibat. Furthermore, P.W.2 merely stated that 15-20 days earlier the appellant- came to know of the sale. His evidence is based on hearsay, in that, during cross-examination he stated that on 13-5-1991 the appellant told him that he had gone to the respondent and on the same day notice was given. P.W.1 also deposed in his cross-examination that in his presence no conversation took place between the appellant and the respondent and everything was told to him by the appellant. The observation of the learned Judge in Chamber "nor is there any evidence of making of Talab-i-Mawathibat" is not to be read in isolation, but with reference to the impugned judgment in its entirety and in particular the following portion thereof:- "Elaborating his arguments learned counsel has taken me through the plaint as. Well as the evidence produced in the case. P.W.1 Muhammad Akram in his statement has stated that he went alongwith the plaintiff to the defendant on 13-5-1993 and asked him to return the land after taking the sale amount but he refused. This witness has not stated that Talab-e-Mawathibat was made at the time when the plaintiff came to know of the sale. Similar is the statement of Muhammad Yousuf P.W.2. Even Muhammad Ramzan, P.W.3 has simply stated that on coming to know of the sale he went to the defendant and told him that he wants to file a pre-emption suit. Hence the respondent himself even has not mentioned the making of Talab-iMawathibat."

6. Section 31(1) of the Act, provides that it is incumbent upon the officer registering the sale deed or attesting the mutation of sale to give public notice in respect of such registration or attestation within two weeks as the case may be. Subsection (2) thereof envisages that the notice given under subsection (1) shall be deemed to have been sufficiently given if it is displayed on the main entrance of a mosque and on any other public place of village or the place where the property is situated. Presumption of regularity is attached to all official acts. It is not the case of the appellant that no notice was ever served by the registering authority nor evidence contrary to that has been brought on record. It would, therefore, be presumed that the appellant had due knowledge of the attestation of the mutation of sale of the disputed land within two weeks from the issuance of notice under section 31 of the Act. In the present case, the appellant had failed to make Talabs in accordance with law, therefore, the right of pre-emption is not available to him.

7. In the light of the foregoing discussion, we dismiss the appeal, but there shall he no order as to costs.