PLJ 2021 Lahore (Note) 2
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Punjab Pre-emption Act, 1991, S. 13(3)--Suit for pre-emption--Decreed--Appeal--Accepted--Non-production of evidence by petitioners--Absence of acknowledgement receipt--Mandatory obligation--Right of pre-emptor--Notice of talb-e-ishhad--Challenge to--Postman was produced who testified delivery of notice of Talb-i-Ishhad to vendee alleging that he obtained signature/thumb impression of vendee on acknowledgment card but on other hand, vendee had specifically denied receiving of notice of Talb-i-Ishhad and in such eventuality production of acknowledgement card containing his signature was sine qua non to get benefit of testimony of postman which had neither been exhibited nor produced by plaintiffs/petitioners despite fact that they admitted its availability with them, so withholding evidence confirmed this fact that it did not favour them and non-production of said evidence is fatal to obtain a decree in a pre-emption suit--In absence of acknowledgement card significance of production of postman has lost its efficacy extinguishing pre-emption right of pre-emptor--Petitioners have failed to discharge their mandatory obligation to prove service of notice of Talb-i-Ishhad as envisaged under Section 13(3) of Punjab Pre-emption Act, 1991 which is fatal for their pre-emption suit--N o reason to interfere in findings recorded by first Appellate Court which are in consonance with settled principle of law and it does not disclose any illegality or irregularity which is essential to exercise power provided under Section 115 C.P.C.--Revision petition was dismissed. [Para 3, 4 & 5] A, B & C
2017 CLC (Note) 117 and 2008 SCMR 1366 ref.
Ch. Naveed Akhtar Bajwa and Salah-ud-Din Siddique, Advocates for Petitioners.
Nemo for Respondents.
Date of hearing: 13.9.2018.
PLJ 2021 Lahore (Note) 2
Present: Muhammad Ameer Bhatti, J.
versus
MUHAMMAD ALI and another--Respondents
C.R. No. 1798 of 2015, heard on 13.9.2018.
Judgment
Suit for possession through pre-emption filed by the present petitioners regarding land measuring 3-Kanals 2-Marlas allegedly purchased for a consideration of Rs.2,00,000/- through oral mutation dated 29.01.2010 was decreed by the learned trial Court vide judgment dated 20.05.2014 holding that the petitioners had performed the requisite Talbs in accordance with law and they have preferential right. Appeal whereof filed by the respondents/defendants/vendees was accepted by the learned first appellate Court vide impugned judgment dated 09.05.2015, as a consequence whereof, the suit filed by the petitioners stood dismissed.
2. Learned counsels for the petitioners have been heard and record perused.
3. Indeed, essential requirement of law as envisaged in Section 13(3) of the Punjab Pre-emption Act, 1991 is sending of notice to the vendee confirming his intention to exercise the right of pre-emption. The mode of sending of notice has been specified which is mandatory to be followed and omission of any of the ingredients mentioned in the section extinguishes the right of pre- emption. Section 13(3) of Punjab Pre-emption Act, 1991 further stipulates that notice of Talb-i-Ishhad must be dispatched to vendee through registered acknowledgement due and these documents i.e. notice, postal receipt and acknowledgment due containing either signature/thumb impression of recipient or report of postman regarding refusal or his non-availability have to be tendered in evidence; besides, proving of these documents by producing their witnesses is also mandatory and obligation of the pre-emptor.
In the case of Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), the implication of acknowledgment card was emphasized in the following terms:
“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”.
Further, in Ghulam Abbas and another v. Manzoor Ahmad and another (2008 SCMR 1366) the requirement of acknowledgement due receipt was held to be one of the modes to satisfy that the notice had reached the addressee. Obviously without production of any of the document appearance of any related witness would not be enough to absolve him of the duties to prove the document inasmuch as it is settled law that the documentary evidence cannot be excluded by oral assertion (2017 CLC Note 117 is referred), therefore, it is mandatory not only to produce the document but its witnesses also whereas in this case although postman was produced who testified the delivery of the notice of Talb-i-Ishhad to the vendee alleging that he obtained the signature/thumb impression of the vendee on acknowledgment card but on the other hand, vendee had specifically denied receiving of notice of Talb-i-Ishhad and in such eventuality the production of acknowledgement card containing his signature was sine qua non to get the benefit of the testimony of postman which had neither been exhibited nor produced by the plaintiffs/petitioners despite the fact that they admitted its availability with them, so withholding the evidence confirmed this fact that it did not favour them and non-production of said evidence is fatal to obtain a decree in a pre-emption suit. In absence of the acknowledgement card significance of production of postman has lost its efficacy extinguishing the pre-emption right of the pre-emptor.
4. In view of above, it is held that the petitioners have failed to discharge their mandatory obligation to prove the service of notice of Talb-i-Ishhad as envisaged under Section 13(3) of Punjab Pre-emption Act, 1991 which is fatal for their pre-emption suit.
5. For what has been discussed above, I find no reason to interfere in the findings recorded by the learned first Appellate Court which are in consonance with the settled principle of law and it does not disclose any illegality or irregularity which is essential to exercise the power provided under Section 115 C.P.C., therefore, this petition having no merit stands dismissed. No order as to costs.
(Y.A.) Revision petition dismissed
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