PLJ 2023 Lahore (Note) 38
Present: Faisal Zaman Khan, J.
SHAFQAT RASOOL--Petitioner
versus
HABIB AHMED--Respondent
C.R. No. 15033 of 2021, decided on 5.3.2021.
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 and appeal--Denial of service of notice of talb-e-ishhad by respondent--Non fulfillment of requirement of law--Names of witnesses of talb-e-muahibt were not mentioned in plaint--Burden to prove--Challenge to--Although petitioner has mentioned names of witnesses of Talb-e-Muwathibat, he has failed to mention names of witnesses of Talb-e-Ishhad--It is mandatory for pre-emptor that he within two weeks of Talb-e-Muwathibat, send notice in writing attested by two truthful witnesses under registered cover, acknowledgment due to vendee--Petitioner produced PW.3 showing him to be postman of area where service was effected, in his cross-examination said witness has acknowledged that he has no proof that he was posted at Shorkot as Postman at that point in time, petitioner has failed to prove service of notice of Talab-e-Ishhad, Courts below have rightly decided against petitioner--Civil revision dismissed.
[Para 6, 8 & 11] A, B & C
2015 SCMR 1243, 2007 SCMR 1105, 2016 SCMR 24, PLD 2015 SC 137, PLD 1994 SC 291 ref.
Mian Tariq Hussain, Advocate for Petitioner.
Date of hearing: 5.3.2021.
Order
This civil revision is directed against the judgments and decrees dated 21.06.2017 and 08.12.2020 passed by the learned Civil Judge, Pir Mahal District Toba Tek Singh and learned Additional District Judge, Toba Tek Singh, respectively. By virtue of the former judgment suit for possession through pre-emption instituted by the petitioner was dismissed and through the latter the same has been upheld.
2. Succinctly the facts of the case are that a suit for_ possession through pre-emption was instituted by the petitioner against the respondent claiming to have a superior right of pre-emption, in which written statement was filed by the latter denying the claim of the former, whereupon, out of the divergent pleadings of the parties as many as 06 issues were framed; evidence pro and contra was led, whereafter, through judgment and decree dated 21.06.2017 the suit was dismissed. Aggrieved by the same, petitioner preferred an appeal, which also met the same fate and was dismissed vide judgment and decree dated 08.12.2020, hence, this civil revision.
3. At the outset of hearing, learned counsel for the petitioner has been confronted with the following queries:-
a. Since the names of the witnesses of Talb-e-Ishhad have not been mentioned in the plaint, therefore, this infirmity is fatal for the suit; and
b. Since the service of notice of Talb-e-Ishhad was denied by the respondent, therefore, in order to prove the same and keeping in view the interpretation of Section 13 of the Punjab Pre- Emption Act (NO. IX of 1991) (Act) by the Superior Courts it was imperative for the petitioner to have produced the concerned postman for proving the service of notice upon the respondent, but this requirement of law has not been fulfilled, as the postman produced by the petitioner as PW.3 in his cross-examination has deposed that he has no proof that at that point in time he was posted at Shorkot as a postman.
4. In spite of his earnest effort learned counsel has not been able to give any plausible explanation about the above legal infirmities.
5. Arguments heard. Record perused.
6. From the perusal of the plaint, it is evident that although petitioner has mentioned the names of witnesses of talb-e-Muwathibat, however, he has failed to mention the names of witnesses of Talb-e-Ishhad, therefore, in view of the judgment of the Honourable Supreme Court of Pakistan reported as Dr. Pir Muhammad Khan v. Khuda Bukhsh and others (2015 SCMR 1243), since the names of witnesses of Talb-e-Ishhad were not mentioned in the plaint, therefore, the same was fatal for the suit.
7. It shall not be out of place to mention here that the afore-noted judgment has been followed and endorsed by the Honourable Apex Court in an unreported judgment passed in Civil Petition No. 27-L/2016 (Kashif Mahmood (deed) through L.Rs. v. Rasheed Ahmad), wherein, it has been held that conspicuous absence of names of witnesses of Talb-e- Ishhad in the contents of the plaint is fatal to the suit for pre-emption.
8. Under Section 13 of the Act, for performance of Talab-e-Ishhad, it is mandatory for the pre-emptor that he within two weeks of Talb-e-Muwathibat, send notice in writing attested by two truthful witnesses under registered cover, acknowledgment due to the vendee. In case, it is disputed by the vendee that he never received the notice, the burden is on the pre-emptor to prove the issuance as well as service of the notice.
9. In the case in hand, as respondent in his written statement as well as in his evidence has denied the issuance and service of notice, therefore, it was mandatory for the petitioner to have proved the issuance and service (receipt/refusal) of the notice by producing cogent, concrete and confidence inspiring evidence, which in this case ex facie is lacking.
10. The Honourable Supreme Court of Pakistan in judgments reported as Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309), Dayam Khan and others v. Muslim Khan (2015 SCMR 222), Allah Ditta through L.Rs and others v. Muhammad Anar (2013 SCMR 866), Abdul Khan v. Ramzano Bibi (PLD 2013 SC 193), Bashir Ahmed v. Ghulam Rasool (2011 SCMR 762) and Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105) has laid down parameters for proving Talab-e-Ishhad. A cumulative reading of the above judgments would show that in order to prove issuance and service of notice of Talab-e-Ishhad, a pre-emptor has to produce/prove the following:
a) Notices of Talb-e-Ishhad;
b) Its two truthful attesting witnesses;
c) Postal receipts;
d) Acknowledgement due;
e) Postman who effected the service (both acceptance or refusal).
11. In the present case, when the factum of service was denied by the respondent, it was mandatory for the petitioner to have produced the postman of the area, who according to judgments cited supra was a sine qua non to prove service of notice of Talb-e-Ishhad. For proving this fact, petitioner produced Hafiz Muhammad Rafiq as PW.3 showing him to be the postman of the area where service was effected, however, in his cross-examination the said witness has acknowledged that he has no proof that he was posted at Shorkot as Postman at that point in time, therefore/petitioner has failed to prove the service of notice of Talab-e-Ishhad, therefore, the learned Courts below have rightly decided against the petitioner.
12. Since the learned counsel has not been able to point out any jurisdictional defect or procedural impropriety in the concurrent judgments and decrees passed by both the learned Courts below, therefore, in view of judgments reported as Nizam-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24), Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others (2015 SCMR 799), Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif (PLD 2015 SC 137), Mst, Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Haji Muhammad Din v. Malik Muhammad Abdullah (PLD 1994 SC 291) no interference can be made by this Court in the concurrent findings rendered by the Courts below.
13. As a sequel to the above, this revision petition being devoid of any merits is dismissed in limine.
(Y.A.) Revision petition dismissed
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