PLJ 2023 Lahore (Note) 37
Specific Relief Act, 1877 (I of 1877)--
----S. 9--Punjab Pre-emption Act, (IX of 1991), S. 13--Suit for possession through pre-emption--Dismissal of suit--Concurrent findings--Superior right of pre-emption--Validity of talb-e-Muwahibat--Petitioner was failed to established talb-e-ishhad--Challenge to--It is well settled principle of law by now that pleadings cannot be a substitute of evidence--Unless a material fact which is asserted in pleadings has been deposed in evidence by witness that cannot be considered or treated as valid piece of evidence--This sole aspect is sufficient to shatter case of petitioner because time always plays a pivotal role for purpose of analyzing validity of Talb-i-Muwathibat--Both Courts are of unanimous view that petitioner has failed to establish Talb-i-Ishhad, which conclusion is apparently rested upon proper appraisal of evidence--Civil revision dismissed. [Para 7 & 9] B & D
2013 SCMR 866, PLD 2007 SC 302 and 2015 YLR 1614 ref.
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Basic foundation of right of pre-emption--Talb-i-Muwathibat is basic foundation of right of pre-emption which is to be performed immediately on attaining knowledge about sale--Even wastage of a single moment in performance of Talb-i-Muwathibat is sufficient to damage right of pre-emption--For purpose of determining fate of Talb-i-Muwathibat time, date and place always play a significant role--Pre-emptor(s) are always obliged to lead cogent and unimpeachable evidence to establish their right through performance of necessary Talbs. [Para 6] A
Punjab Pre-emption Act, 1991 (IX of 1991)--
----S. 13--Performance of talb-i-Muwahibat--Performance of Talb-i-Muwathibat is shrouded in mystery, which is always a jumping demand without wastage a single moment. [Para 8] C
2015 SCMR 92 ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Concurrent findings--Revisional jurisdiction--Revisional jurisdiction is not meant to unearth another possible view from evidence which is contra to findings rendered by two Courts of competent jurisdiction. [Para 10] E
Civil Procedure Code, 1908 (V of 1908)--
----S. 115--Exercising of revisional jurisdiction--Superior Courts are always reluctant to interfere with concurrent findings, unless some patent illegality or material irregularity crept up on record or pointed out by petitioner--Exercise of revisional powers is always guided by necessary pre-conditions laid down in above referred provision of law. [Para 10] F
PLD 2016 SC 712, PLD 2022 SC 21 and PLD 2022 13 ref.
Mian Tariq Hussain, Advocate.
Date of hearing: 24.5.2022.
PLJ 2023 Lahore (Note) 37
Present: Mirza Viqas Rauf, J.
GHULAM HUSSAIN--Petitioner
versus
MUHAMMAD AKRAM--Respondent
C.R. No. 55648 of 2021, decided on 24.5.2022.
Order
Through instant petition under Section 115 of the Code of Civil Procedure (V of 1908), the petitioner namely Ghulam Hussain assails the vires of judgment and decree dated 16th April, 2021, whereby the learned Additional District Judge, Malakwal, while dismissing his appeal affirmed the judgment and decree dated 25 February, 2019 passed by the learned Civil Judge Class-II, Malakwal.
2. Briefly the facts necessary for adjudication of instant petition are that the petitioner instituted a suit for possession through pre-emption averring therein that land which is duly described in headnote of the plaint was purchased by the respondent from Mazhar Iqbal and others through Mutation No. 1786 dated 14th January, 2013 in lieu of sale consideration of Rs.5,00,000/-, however, in order to defeat the right of pre-emption of the petitioner, sale consideration was mentioned as Rs.9,00,000/-. As per averments contained in the plaint, the petitioner attained the knowledge of sale on 20th February, 2013 at 09:00 am when he was present in lawn of his house and the information was disclosed by Muhammad Nawaz in presence of Hamid Abbas. It is the case of the petitioner (pre-emptor) that immediately on attaining the knowledge, he performed necessary Talbs in furtherance of his superior right of pre-emption. The suit was contested by the respondent, who filed his written statement, wherein the assertions contained in the plaint were controverted. The divergent stance of the parties resulted into framing of necessary issues. In the process of recording of evidence, when evidence of the petitioner was completed, oral evidence of the respondent was closed vide order dated 16th January, 2019, however, documentary evidence was recorded and on completion of the same, suit was dismissed vide judgment and decree dated 25th February, 2019. The petitioner, being dissatisfied with the above said judgment and decree though preferred an appeal before the learned Additional District Judge, Malakwal, however the same was dismissed vide judgment and decree dated 16th April, 2021.
3. Learned counsel for the petitioner submitted that the petitioner being possessed with a superior right of pre-emption exercised his right by performance of necessary Talbs. It is contended that though overwhelming evidence was produced to this -effect but suit was dismissed without due appreciation of the same. Learned counsel maintained that findings of learned Courts below qua performance of Talbs are not tenable.
He added that concurrent findings are the outcome of gross misreading and non-reading of evidence.
4. Heard. Record perused.
5. The superior right of pre-emption of the petitioner was initially not acknowledged by the learned trial Court but in appeal learned Additional District Judge held that he was having superior right of pre-emption, which finding is unexceptionable. The pre-emptor(s), however, in order to succeed in a suit for pre-emption has/have to establish the performance of necessary Talbs as a sine qua non in furtherance of his/their superior right of pre-emption. Section 13 of the Punjab Pre-emption Act, 1991 prescribes the mode for performance of Talbs.
6. Talb-i-Muwathibat is the basic foundation of the right of pre-emption which is to be performed immediately on attaining the knowledge about the sale. Even wastage of a single moment in performance of Talb-i-Muwathibat is sufficient to damage the right of pre-emption. For the purpose of determining the fate of Talb-i-Muwathibat time, date and place always play a significant role. The pre-emptor(s) is/are always obliged to lead cogent and unimpeachable evidence to establish his/their right through performance of necessary Talbs. While going through the evidence, it is observed that the evidence of the petitioner is highly discrepant qua the above aspects. As per plaint, the information was received by the petitioner through Muhammad Nawaz (PW3) on 20th February, 2013 at 09:00 am when he was present in the lawn of his house in presence of Hamid Abbas (PW2), however, while appearing as PW1 he did not utter about the time when he received the information from Muhammad Nawaz (P W3). This omission is fatal for a suit for pre-emption. Similarly Muhammad Nawaz informer (PW3) has also remained mum regarding this material fact.
7. There is no cavil that time was mentioned in the plaint but it is well settled principle of law by now that pleadings cannot be a substitute of evidence. Unless a material fact which is asserted in the pleadings has been deposed in evidence by the witness that cannot be considered or treated as valid piece of evidence. This sole aspect is sufficient to shatter the case of the petitioner because time always plays a pivotal role for the purpose of analyzing the validity of Talb-i-Muwathibat. Reliance in this respect can be placed on Allah Ditta throush LRs. and others vs Muhammad Anar (2013 SCMR 866) and Mian Pir Muhammad and another vs Faqir Muhammad through LRs. and others (PLD 2007 Supreme Court 302).
8. It is also noteworthy that the petitioner while appearing in the witness box as PW1 stated in his examination in chief that he after getting knowledge about the impugned sale went to the concerned Patwari and then performed Talb-i-Muwathibat. In view of above, performance of Talb-i-Muwathibat is shrouded in mystery, which is always a jumping demand without wastage a single moment. In somewhat similar circumstances the Honourable Supreme Court of Pakistan in the case of Mst. Rooh Afza versus Aurangzeb and others (2015 SCMR 92) held as under:
“11. From the bare reading of the above portion of statement on oath by P.W.4 Abdul Kahar, we find that the case of the appellant for making Talb-i-Muwathibat in accordance with law stood demolished as without any justification she consumed 10-15 minutes to discuss the matter with her family’ members before taking the decision of exercising her right of pre-emption in respect of the suit land. In the statute, use of the word “immediate” in the context of “Talb-i-Muwathibat” has its own meaning and significance, thus no redundancy can be attributed to it to accommodate a pre-emptor, who has not been vigilant in making such “Talb”. The lapse of 10-15 minutes before the exercise of such right (Talb-i-Muwathibat) was, thus, fatal to the case of the appellant. If any case-law is needed for reference the case of Mian Pir Muhammad -v. Faqir Muhammad (PLD 2007 SC 302) may be cited with advantage. In this judgment, a five member bench of the Supreme Court considered this issue in the context of Section 13 of the Punjab Pre-emption Act, 1991, which is pari materia to Section 13 of the ‘Khyber Pakhtunkhwa Pre-emption Act, 1987, and the ratio/reasoning followed by the Court is fully applicable to the case in hand, The Court while referring to Black’s Law Dictionary, as well as various other decisions of the superior Courts, concluded that the condition of immediate demand means that Talb-i-Muwathibat has to be performed in the same meeting and sitting, without any loss of time and as soon as information of the sale was received by the pre-emptor. Furthermore, in Muhammad Nazeef Khan v. Gulbat Khan (2012 SCMR 235) the Court while examining the definition of” “sale” under Section 2(d) and Section 13(1) of the Khyber Paklitunkhwa Pre-emption Act, 1987 held that the definition of “sale” in Section 2(d) cannot be applied to the same expression used in Section 13 as the pre-emptor is obliged to make the Talb immediately upon receiving information of the sale regardless of whether the conditions laid down for completion of sale have been fulfilled. This is because the stringent nature of the requirement of Talb-i-Muwathibat does not allow the pre-emptor to postpone the making of this Talb even if he is to make “...further inquiry or probe as to whether or not the sale was complete in all respects. The Talb is to be made regardless of the credibility of the information”.
In addition to the above, an examination of some Indian case-law also supports the claim of the respondents that slightest lapse of time is fatal to the case of the appellant. The cases of Sonabashi Kuer v. Chaudhary Ramdeo Singh (AIR 1951 Pat 521) and Muhammad Ahmad Said Khan v. Madho Prasad (35 Ind Cas 911) both clarified that the reasons why Talb-i- Muwathibat has to be performed with alacrity is because the purpose of making an immediate claim is to demonstrate that the pre-emptor has not relinquished his right of pre-emption.”
9. Needless to observe that when once a pre-emptor fails to prove the performance of Talb-i-Muwathibat, nothing left to ponder upon the question relating to performance of Talb-i-Ishhad, as the pre-emptor has to prove the performance of all the Talbs co-extensively. Even otherwise both the Courts are of unanimous view that the petitioner has failed to establish Talb-i-Ishhad, which conclusion is apparently rested upon proper appraisal of evidence. Reference in this regard can be made to Haji Raees Khan and others versus Haq Nawaz and others (2015 YLR1614).
10. There are concurrent findings of facts recorded by both the Courts below, which are apparently rested upon sound reasoning. The petitioner has failed to point out any misreading and non-reading of evidence. The revisional jurisdiction is not meant to unearth another possible view from the evidence which is contra to the findings rendered by two Courts of competent jurisdiction. The revisional jurisdiction is to be exercised, while keeping in view the principles enshrined in Section 115 of “CPC”. The superior Courts are always reluctant to interfere with the concurrent findings, unless some patent illegality or material irregularity crept up on the record or pointed out by the petitioner(s). The exercise of revisional powers is always guided by the necessary pre-conditions laid down in the above referred provision of law. The scanning of evidence and the perusal of impugned judgments does not reflect any illegality or material irregularity, justifying interference by this Court. Reference in this respect can be made to Ghulam Qadir and others versus Sh. Abdul Wadood and others (PLD 2016 Supreme Court 712), Mst. Zarsheda versus Nobat Khan (PLD 2022 Supreme Court 21) and Muhammad Sarwar and others versus Hashmal Khan and others (PLD 2022 Supreme Court 13).
11. In view of above discussion, this civil revision, having no merits is dismissed in limine.
(Y.A.) Civil revision dismissed
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