Essential to prove the performance of Talbs in accordance with law, as elaborated under Section 13 of The Punjab Pre-emption Act, 1991 and when Talbs are not proved as per dictates and requirement of law,

6. It is, by now, a settled principle of law that in order to succeed in a suit for possession on the basis of pre-emption, it is mandatory and imperative as well as essential to prove the performance of Talbs in accordance with law, as elaborated under Section 13 of The Punjab Pre-emption Act, 1991 and when Talbs are not proved as per dictates and requirement of law, the same results fatal to the pre-emptor’s. 

In the present case, Muhammad Rasheed (P.W.7) appeared as pre-emptor on his behalf and on behalf of the other legal heirs of original pre-emptor, but he failed to produce any power of attorney executed in his favour authorizing him to appear on their behalf and deposed that he was present at the time of making of talb-e-muwathibat by his deceased father Muhammad Raman, but the plaint as well as alleged notice talb-i-ishhad is silent in this regard as neither in the plaint nor in the alleged notice of talb-i-ishhad his name emerges, rather name of Muhammad Sarwar and Fazal Elahi besides Bashir Ahmad (informer) appear; meaning thereby the statement of P.W.7 is beyond the pleadings and the same is inadmissible. A further question arises here that right to acquire suit property by exercising right of pre-emption accrues on the date of sale but when at that time the present respondents did not have such right, coupled with above scenario i.e. non-presence of Muhammad Rasheed (P.W.7) at the time of making of talb-imuwathibat, the suit ought to have been dismissed on this single score, as making of talb-i-muwathibat has not been proved by the respondents/plaintiffs in accordance with law; reliance is placed on Muzaffar Hussain v. Mst. Bivi and 7 others (PLD 2012 Lahore 12). 

Apart from the above, even if it is presumed and admitted for the sake of arguments that the respondents/plaintiffs have right of pre-emption against the present petitioner, even then non-appearance of the other respondents/plaintiffs except Muhammad Rasheed turns fatal to the respondents/plaintiffs, as right of pre-emption is a personal right, which can be exercised personally, which is missing in this case. In this regard reliance is placed on Humayun Naseer Cheema and 3 others v. Muhammad Saeed Akhtar and others (2007 CLC 819-Lahore). 

In addition to the above, the respondents/plaintiffs have failed to produce Fazal Elahi, before whom allegedly the original pre-emptor performed talb-i-muwathibat as his evidence can be termed as that of independent witness because the other witness namely Muhammad Sarwar is legal heir of Muhammad Ramzan, the original pre-emptor and is an interested witness; therefore, adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 arises against the respondents/plaintiffs due to withholding of essential witness that had he been produced, he would not have supported their stance. Reliance is placed on Muhammad Hussain and others v. Ehsan Ullah (2008 MLD 382-Lahore). 

 Part of Judgment 

IN THE LAHORE HIGH COURT, LAHORE.

Civil Revision-Civil Revision(Against Decree)-Pre-emption
2301-11

2017 LHC 986