AZIZULHAQUE vs MUHAMMAD ASLAM and others
This matter arose from two pre-emption suits filed by the petitioner, which were dismissed by the trial court, the appellate court, and the Lahore High Court on revision, on the ground that the petitioner failed to make Talb-i-Ishhad by sending registered notices by post to the respondents. The core legal question was whether the petitioner could validly make Talb-i-Ishhad orally in the presence of two truthful witnesses under Section 13(3) of the Punjab Pre-emption Act, 1991, on the pretext that no post office existed in the village. The Supreme Court of Pakistan held that a Branch Post Office had been functioning in the relevant Chak since 1927, meaning postal facilities were available at the time of the sales in 1989. Consequently, the alternative method of oral Talb-i-Ishhad in the presence of witnesses was not available to the petitioner. The Court reaffirmed that making the prescribed Talbs is a sine qua non for successfully pre-empting a sale, and dismissed the petitions for leave to appeal.
- Whether a pre-emptor can make an oral Talb-i-Ishhad in the presence of two truthful witnesses when postal facilities for sending a registered notice are available in the area?
- Is the performance of prescribed Talbs a mandatory requirement (sine qua non) for successfully pre-empting a sale under the Punjab Pre-emption Act, 1991?
- How does the availability of a local branch post office affect the mode of making Talb-i-Ishhad under Section 13(3) of the Punjab Pre-emption Act, 1991?
- Section 13(3), Punjab Pre-emption Act 1991
ORDER
' MUHAMMAD ILYAS, J.---This order shall dispose of the instant petition, namely, CPSLA No, 1300/L/1995 as well as CPSLA No,1301/L/1995.
2. Both these petitions have been made by Aziz-ul-Haque who had filed two suits for pre-emption.
He failed in both the suits, inter alia, on the ground that he had not made Talb-i-Ishhad by sending registered notices, by post, to the respondents who had purchased the land in question. The petitioner went in appeal before an Additional District Judge but without success. He then filed revision petitions before the Lahore High Court but those were also dismissed by a Single Judge thereof. Hence the petitions in hand for leave to appeal against the judgment of the learned Judge in Chambers.
3. It was contended by learned counsel for the petitioner that there was no post office in the village and, therefore, the petitioner made Talb-i-Ishhad in the presence of two truthful witnesses instead of sending registered notices. It was maintained by him that according to subsection (3) of section 13 of the Punjab Pre-emption Act, 1991, Talb-i-Ishhad could be made in the manner adopted by the petitioner.
4. A perusal of subsection (3) of section 13 of the Punjab Pre-emption Act would reveal that Talb-i- Ishhad can be made orally in the presence of two truthful witnesses if postal facilities for sending a written notice under registered cover acknowledgement due, are not available in the area. The respondents have placed on record (Part II of the Paper Book) a certificate issued by the District Superintendent, Post Office, Toba Tex Singh, which shows that a Branch Post Office is functioning in Chak No, 178/GB, Tehsil Gojra, District Toba Tek Singh, since 1-7-1927. The disputed land is also in the said Chak and the sales pre-empted by the petitioner had taken place in the year 1989. This means that the postal facilities were available to the petitioner for sending the requisite notice after the said sales had been effected. Admittedly, he did not do so. The second alternative i,e,, the making of Talb-iIshhad in the presence of two truthful witnesses was, therefore, not available to him; and even if he had made Talb-i-Ishhad, accordingly, it was of no avail to him.
5. Law is well settled on the point that the said Talb is sine qua non for successfully pre-empting any sale. Since the petitioner had failed to make the aforementioned Talbs, he was rightly non- suited.
6. In this view of the matter, the judgments sought to be appealed against are unexceptionable.
Leave to appeal is, therefore, refused in both the cases and the petitions mentioned at the outset are dismissed.
Cited by 1 case
- ABDUL QAYYUM vs MUHAMMAD RAFIQUE 2001 SCMR 1651