IJAZ UL AHSAN, J. This petition arises out of a judgment and decree dated 01.07.2004 recorded by a learned Civil Judge, Rawalpindi, which was upheld in appeal by an Additional District Judge, Rawalpindi vide his judgment and decree dated 27.09.2006.
Through the impugned judgment and decrees, a suit for possession through pre-emption filed by the petitioner was dismissed.
2. The brief facts of the case are that the petitioner Mst. Zahida Perveen filed a suit for possession through pre-emption against the respondent. It was contended in the suit that the suit property was purchased by the respondent against a consideration of Rs.50,000/-.
However, in order to defeat the petitioner’s right of pre-emption, a fictitious price of Rs.1,00,000/- was mentioned in the mutation. It was alleged by the petitioner that she came to know about the disputed sale
on 06.08.1997 at 9:00 A.M., while she was sitting in her house with her father in law. The informant in the case was Nasim Akhtar, who is a brother of the petitioner. She allegedly pronounced her intention to file
a suit for pre-emption. Thereafter, on 07.08.1997, notice of Talb-e-Ishhad duly attested by two witnesses namely Abdul Hussain & Muhammad Iqbal, PW-3 and PW-4 was sent to the respondent through
registered A.D. The claim of the petitioner was based on being a cosharer in the khata of the disputed property.
3. The suit was contested by the respondent. The defense taken included questions relating to limitation, non-payment of court-fee etc. However, the main defense was that the petitioner had not fulfilled the
requirements of Talb-e-Muwathibat and Talb-e-Ishhad as per the law. Out of divergent pleadings of the parties, the learned trial court framed 06 issues. Subsequently, Issue No.6-A was added. The parties were put to trial. The petitioner examined Mahmood Hussain, Patwari as PW-1, Muhammad Ayub, special attorney and her father in law as PW-2, Abdul Hussain as PW-3 and Muhammad Iqbal as PW-4. In
documentary evidence, amongst other documents, receipt of registered envelop (Exh.P-5) and acknowledgment due card (Exh.P-6) were tendered. For the defendant, the respondent appeared as DW-1 and produced various documents including copies of mutations which were tendered as Exh.D-1 to Exh.D-7.
4. Vide judgment and decree dated 01.07.2004, the suit of the petitioner was dismissed. Aggrieved of the judgment and decree of the learned trial court, the petitioner filed an appeal. The respondent also filed cross objections. The learned first appellate court while reversing the findings of the learned subordinate court, on issues of superior right of pre-emptor and performance of Talbs arrived at the same result as C.R.No.12-2007 3 the trial court. The appeal of the petitioner was dismissed vide its judgment and decree dated 27.09.2006.
5. The two questions that require determination by this Court and which have been stressed by the learned counsel for the petitioner are as follows:-
1) Whether in a pre-emption suit, non-production of informant is fatal to the suit of the plaintiff;
2) In a suit for pre-emption, if the informant is not produced, but there are other witnesses who prove
the fact of Talbs being performed, is their evidence sufficient to establish performance of Talbs.
6. The learned counsel for the petitioner submits that production of the informant as a witness is not fatal if other witnesses are available and such witnesses are produced in the Court to substantiate the fact
that the Talbs were performed. In this regard, he has drawn my attention to the statement of PW-2 Muhammad Ayub s/o Muhammad Sadiq, who is the father in law of the petitioner and also appeared in
the suit as her special attorney. PW-2 stated in his evidence that on 06.08.1997 at 9:00 A.M. he and his daughter in law were sitting in the courtyard of his house when Nasim Akhtar i.e. brother of the petitioner
came and informed the petitioner that the suit property had been sold.
C.R.No.12-2007 4
Mst. Zahida Perveen at that point in time “decided” that she will exercise her right of pre-emption and further said that she was a coowner in the khata and possessed a right of pre-emption. The learned counsel, therefore, submits that exercise of Talb-e-Muwathibat stood established through the statement of PW-2, who appeared as an attorney of the petitioner. The learned counsel has relied upon “Israr Ahmad Vs Ghafoor Khan” (2004 YLR 655), “Abdul Malik Vs Muhammad Latif” (1999 SCMR 717), “Muhammad Aslam Shah Vs Amanullah Khan” (2006 YLR 1194), “Haji Hassan Ali Vs Haji Abdullah and another” (PLJ 2006 Quetta 93) to substantiate his assertion that if Talb-e-Muwathibat is made in presence of other
witnesses, who are produced in the Court, non-production of the informant is not fatal to the case of the plaintiff.
7. The learned counsel further submits that the judgment passed by the learned Additional District Judge is deficient insofar as he has not recorded any findings on the question of Talb-e-Ishhad regarding which the learned trial court had found that the same had been properly performed, He, therefore, submits that atleast the present case is fit for remand to the learned Additional District Judge with a direction to record findings on the question of performance of Talb-e-Ishhad.
8. The learned counsel for the respondent, on the other hand, submits that the plaintiff/pre-emptor did not take the witness box to prove performance of Talbs. She filed a suit through her father in law PW-2 Muhammad Ayub, who was her attorney and appeared in that
C.R.No.12-2007 5
capacity as a witness. However, it is significant to note that he was the sole witness produced to establish performance of Talb-e-Muwathibat and no other witness was produced to substantiate his statement.
Further, no plausible explanation was forthcoming for failure on the part of the petitioner to appear as a witness in her own case or to withhold the best evidence in the form of evidence of the informant
Nasim Akhtar, who is admittedly a brother of the petitioner. The learned counsel further submits that from the statement of PW-2, it is evident that the petitioner had not made a jumping demand as required
by the provisions of Punjab Pre-emption Act. The fact that she had “decided to exercise her right of pre-emption” does not constitute a jumping demand. In this regard, the learned counsel has relied upon
“Mst. Chan Sanoober Vs Ghulam Noorani” (2011 CLC 578). He further submits that in the specific facts and circumstances of the present case, non-appearance of the pre-emptor was fatal to her case in
view of the fact that the suit could not have been decreed on the solitary and unsubstantiated evidence of PW-2, who is her father in law. The learned counsel relies on “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105).
9. The learned counsel for the respondent further submits that although notice of Talb-e-Ishhad was allegedly sent, the acknowledgement receipts produced in the Court showed that the respondent had refused to accept notice. In such circumstances, it was incumbent upon the petitioner to produce the postman as a witness.
Reference in this regard is made to “Bashir Ahmad Vs Ghulam Rasool” (2011 SCMR 762), “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105) & “Jahangir Khan Vs Said Fareen” (2011 CLC 912). The learned counsel maintains that in order to succeed it was incumbent upon the petitioner to establish that all requirements of Section 13 of the Punjab Pre-emption Act were fulfilled in their letter and spirit. Relying on Article 129(g) of the Qanoon-e-Shahadat Order, 1984, the learned counsel submits that nonexamination of the informant was fatal to the case of the petitioner.
10. The learned counsel adds that the notice of Talb-e-Ishhad was not exhibited in the evidence of PW-2. He submits that the scribe of the notice was not produced and if PW-2 was to be treated as the plaintiff,
the notice should have been exhibited in his statement. He points out that the notice was exhibited in the statement of PW-3 Abdul Hussain, who was a witness of Talb-e-Ishhad. He, therefore, argues that the
learned first appellate court was right in non-suiting the petitioner on her failure to prove her case.
11. I have heard the learned counsel for the parties and have examined the record with their assistance.
12. The only questions pressed by the learned counsel for the petitioner relate to performance and proof of Talbs. It is noticed that performance of Talb-e-Muwathibat was the first and basic step for the petitioner in exercise of her right of pre-emption. It was, therefore, C.R.No.12-2007 7
incumbent upon her to establish that she had performed the said Talbs in accordance with law. The plaintiff did not appear as a witness in order to prove performance of Talb-e-Muwathibat. Her father in law,
Muhammad Ayub, who was also her attorney, appeared in the witness box as PW-2 and stated that on receipt of information from Nasim Akhtar, the brother of the petitioner-plaintiff, she had “decided” to
exercise her right of pre-emption. It is nowhere mentioned that she made a jumping demand on receipt of information regarding sale of the property in question. Strangely enough, neither the plaintiff took the
witness box nor did she produce her brother Nasim Akhtar, who was the alleged informant and a witness of Talb-e-Muwathibat. As a result, performance of Talb-e-Muwathibat was left to be proved through the
statement of Muhammad Ayub PW-2, the attorney and father in law of the plaintiff. In addition to PW-2, no other witness appeared to corroborate the version of the plaintiff regarding Talb-e-Muwathibat.
PW-3 Abdul Hussain and PW-4 Muhammad Iqbal were witnesses of Talb-e-Ishhad. Their evidence was not of much value for proving the performance of Talb-e-Muwathibat. It is settled law that nonproduction
of a person, from whom the petitioner received knowledge of sale could lead to an adverse inference to be drawn that he may not have supported the plaintiff if he had been produced as a witness. Reference in this regard may be made to Article 129 (g) of the Qanoone-Shahadat Order, 1984. In this regard, reference may also usefully be C.R.No.12-2007 8 made to “Ghulam Akbar and another Vs Bashir Ahmad” (2006
YLR 2390).
13. The argument of the learned counsel for the petitioner was that non-appearance of the informant per se is not fatal to the case.However, the said statement is qualified by the fact that in such eventuality other witnesses in whose presence Talb-e-Muwathibat was made must be produced. In the instant case, this was not done. The finding of the learned first appellate court that the evidence of PW-2 alone was not enough to establish performance of Talb-e-Muwathibat was correct, logical and supported by case law on the subject.
Reference is made to “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105).
14. In a case reported as “Muhammad Asam Shah Vs Amanullah Khan” (2006 YLR 1194), it was held that the best evidence available to the plaintiff was the informant, but he did not examine him without affording any explanation. In these circumstances, the statement of the plaintiff alone could not be considered as sufficient. Independent proof was required to discharge the onus placed on the petitioner to establish
performance of Talb-e-Muwathibat. In this regard, reference may also usefully be made to “Amin ud Din Vs Mst. Zarina” (2003 CLC1775). A perusal of the record appended with the petition shows that the petitioner did not give any reason for non-production of the informant nor did she produce any other independent witness to discharge the onus of proof of Talb-e-Muwathibat. C.R.No.12-2007 9
15. Under the law of pre-emption, if any of the Talbs is not performed, the plaintiff cannot exercise the right of pre-emption. Statement of PW-2 Muhammad Ayub, who appeared as an attorney of the plaintiff was not enough. At best, his status was that of the plaintiff and even if, he appeared as a witness of Talb-e-Muwathibat, there was no independent evidence to substantiate her claim. The superior courts
have consistently held that the right of pre-emption is a feeble right and unless it is proved through credible and cogent evidence that each of the Talbs was performed strictly in accordance with law, the right of
pre-emption is lost. In the present case, the performance of Talb-e-Muwathibat by making a jumping demand is not established on account of failure on the part of the petitioner to produce credible
evidence and withholding the best available evidence without any explanation whatsoever. Further, neither the plaintiff appeared in person nor did she produce the informant, who was her real brother to substantiate her claim of performing Talb-e-Muwathibat. In addition, the solitary statement of PW-2 was not supported by any independent and credible evidence. In these circumstances, performance of Talb-e-Muwathibat was not proved.
15. Having come to the conclusion that the fact of performance of Talb-e-Muwathibat was not proved, the learned first appellate court rightly refrained from recording any finding on the question of performance of Talb-e-Ishhad. This would have been an exercise in futility in view of the fact that Talb-e-Muwathibat, which constitutes C.R.No.12-2007 10 the starting point for claiming the right of pre-emption had not been
established. The learned counsel for the petitioner has not been able to convince me that the findings recorded by the learned first appellate court suffer from any illegality or material irregularity. Further, no
misreading or non-reading of evidence has been demonstrated. The findings recorded by the learned first appellate court are well reasoned, based upon the record and founded on correct interpretation of the
relevant provisions of the Punjab Pre-emption Act. The same are unexceptionable and do not admit of any interference by this Court in exercise of its revisional jurisdiction.
16. Consequently, this petition fails. It is accordingly dismissed.
(IJAZ UL AHSAN)
JUDGE
Aamer
Approved for reporting.
Through the impugned judgment and decrees, a suit for possession through pre-emption filed by the petitioner was dismissed.
2. The brief facts of the case are that the petitioner Mst. Zahida Perveen filed a suit for possession through pre-emption against the respondent. It was contended in the suit that the suit property was purchased by the respondent against a consideration of Rs.50,000/-.
However, in order to defeat the petitioner’s right of pre-emption, a fictitious price of Rs.1,00,000/- was mentioned in the mutation. It was alleged by the petitioner that she came to know about the disputed sale
on 06.08.1997 at 9:00 A.M., while she was sitting in her house with her father in law. The informant in the case was Nasim Akhtar, who is a brother of the petitioner. She allegedly pronounced her intention to file
a suit for pre-emption. Thereafter, on 07.08.1997, notice of Talb-e-Ishhad duly attested by two witnesses namely Abdul Hussain & Muhammad Iqbal, PW-3 and PW-4 was sent to the respondent through
registered A.D. The claim of the petitioner was based on being a cosharer in the khata of the disputed property.
3. The suit was contested by the respondent. The defense taken included questions relating to limitation, non-payment of court-fee etc. However, the main defense was that the petitioner had not fulfilled the
requirements of Talb-e-Muwathibat and Talb-e-Ishhad as per the law. Out of divergent pleadings of the parties, the learned trial court framed 06 issues. Subsequently, Issue No.6-A was added. The parties were put to trial. The petitioner examined Mahmood Hussain, Patwari as PW-1, Muhammad Ayub, special attorney and her father in law as PW-2, Abdul Hussain as PW-3 and Muhammad Iqbal as PW-4. In
documentary evidence, amongst other documents, receipt of registered envelop (Exh.P-5) and acknowledgment due card (Exh.P-6) were tendered. For the defendant, the respondent appeared as DW-1 and produced various documents including copies of mutations which were tendered as Exh.D-1 to Exh.D-7.
4. Vide judgment and decree dated 01.07.2004, the suit of the petitioner was dismissed. Aggrieved of the judgment and decree of the learned trial court, the petitioner filed an appeal. The respondent also filed cross objections. The learned first appellate court while reversing the findings of the learned subordinate court, on issues of superior right of pre-emptor and performance of Talbs arrived at the same result as C.R.No.12-2007 3 the trial court. The appeal of the petitioner was dismissed vide its judgment and decree dated 27.09.2006.
5. The two questions that require determination by this Court and which have been stressed by the learned counsel for the petitioner are as follows:-
1) Whether in a pre-emption suit, non-production of informant is fatal to the suit of the plaintiff;
2) In a suit for pre-emption, if the informant is not produced, but there are other witnesses who prove
the fact of Talbs being performed, is their evidence sufficient to establish performance of Talbs.
6. The learned counsel for the petitioner submits that production of the informant as a witness is not fatal if other witnesses are available and such witnesses are produced in the Court to substantiate the fact
that the Talbs were performed. In this regard, he has drawn my attention to the statement of PW-2 Muhammad Ayub s/o Muhammad Sadiq, who is the father in law of the petitioner and also appeared in
the suit as her special attorney. PW-2 stated in his evidence that on 06.08.1997 at 9:00 A.M. he and his daughter in law were sitting in the courtyard of his house when Nasim Akhtar i.e. brother of the petitioner
came and informed the petitioner that the suit property had been sold.
C.R.No.12-2007 4
Mst. Zahida Perveen at that point in time “decided” that she will exercise her right of pre-emption and further said that she was a coowner in the khata and possessed a right of pre-emption. The learned counsel, therefore, submits that exercise of Talb-e-Muwathibat stood established through the statement of PW-2, who appeared as an attorney of the petitioner. The learned counsel has relied upon “Israr Ahmad Vs Ghafoor Khan” (2004 YLR 655), “Abdul Malik Vs Muhammad Latif” (1999 SCMR 717), “Muhammad Aslam Shah Vs Amanullah Khan” (2006 YLR 1194), “Haji Hassan Ali Vs Haji Abdullah and another” (PLJ 2006 Quetta 93) to substantiate his assertion that if Talb-e-Muwathibat is made in presence of other
witnesses, who are produced in the Court, non-production of the informant is not fatal to the case of the plaintiff.
7. The learned counsel further submits that the judgment passed by the learned Additional District Judge is deficient insofar as he has not recorded any findings on the question of Talb-e-Ishhad regarding which the learned trial court had found that the same had been properly performed, He, therefore, submits that atleast the present case is fit for remand to the learned Additional District Judge with a direction to record findings on the question of performance of Talb-e-Ishhad.
8. The learned counsel for the respondent, on the other hand, submits that the plaintiff/pre-emptor did not take the witness box to prove performance of Talbs. She filed a suit through her father in law PW-2 Muhammad Ayub, who was her attorney and appeared in that
C.R.No.12-2007 5
capacity as a witness. However, it is significant to note that he was the sole witness produced to establish performance of Talb-e-Muwathibat and no other witness was produced to substantiate his statement.
Further, no plausible explanation was forthcoming for failure on the part of the petitioner to appear as a witness in her own case or to withhold the best evidence in the form of evidence of the informant
Nasim Akhtar, who is admittedly a brother of the petitioner. The learned counsel further submits that from the statement of PW-2, it is evident that the petitioner had not made a jumping demand as required
by the provisions of Punjab Pre-emption Act. The fact that she had “decided to exercise her right of pre-emption” does not constitute a jumping demand. In this regard, the learned counsel has relied upon
“Mst. Chan Sanoober Vs Ghulam Noorani” (2011 CLC 578). He further submits that in the specific facts and circumstances of the present case, non-appearance of the pre-emptor was fatal to her case in
view of the fact that the suit could not have been decreed on the solitary and unsubstantiated evidence of PW-2, who is her father in law. The learned counsel relies on “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105).
9. The learned counsel for the respondent further submits that although notice of Talb-e-Ishhad was allegedly sent, the acknowledgement receipts produced in the Court showed that the respondent had refused to accept notice. In such circumstances, it was incumbent upon the petitioner to produce the postman as a witness.
Reference in this regard is made to “Bashir Ahmad Vs Ghulam Rasool” (2011 SCMR 762), “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105) & “Jahangir Khan Vs Said Fareen” (2011 CLC 912). The learned counsel maintains that in order to succeed it was incumbent upon the petitioner to establish that all requirements of Section 13 of the Punjab Pre-emption Act were fulfilled in their letter and spirit. Relying on Article 129(g) of the Qanoon-e-Shahadat Order, 1984, the learned counsel submits that nonexamination of the informant was fatal to the case of the petitioner.
10. The learned counsel adds that the notice of Talb-e-Ishhad was not exhibited in the evidence of PW-2. He submits that the scribe of the notice was not produced and if PW-2 was to be treated as the plaintiff,
the notice should have been exhibited in his statement. He points out that the notice was exhibited in the statement of PW-3 Abdul Hussain, who was a witness of Talb-e-Ishhad. He, therefore, argues that the
learned first appellate court was right in non-suiting the petitioner on her failure to prove her case.
11. I have heard the learned counsel for the parties and have examined the record with their assistance.
12. The only questions pressed by the learned counsel for the petitioner relate to performance and proof of Talbs. It is noticed that performance of Talb-e-Muwathibat was the first and basic step for the petitioner in exercise of her right of pre-emption. It was, therefore, C.R.No.12-2007 7
incumbent upon her to establish that she had performed the said Talbs in accordance with law. The plaintiff did not appear as a witness in order to prove performance of Talb-e-Muwathibat. Her father in law,
Muhammad Ayub, who was also her attorney, appeared in the witness box as PW-2 and stated that on receipt of information from Nasim Akhtar, the brother of the petitioner-plaintiff, she had “decided” to
exercise her right of pre-emption. It is nowhere mentioned that she made a jumping demand on receipt of information regarding sale of the property in question. Strangely enough, neither the plaintiff took the
witness box nor did she produce her brother Nasim Akhtar, who was the alleged informant and a witness of Talb-e-Muwathibat. As a result, performance of Talb-e-Muwathibat was left to be proved through the
statement of Muhammad Ayub PW-2, the attorney and father in law of the plaintiff. In addition to PW-2, no other witness appeared to corroborate the version of the plaintiff regarding Talb-e-Muwathibat.
PW-3 Abdul Hussain and PW-4 Muhammad Iqbal were witnesses of Talb-e-Ishhad. Their evidence was not of much value for proving the performance of Talb-e-Muwathibat. It is settled law that nonproduction
of a person, from whom the petitioner received knowledge of sale could lead to an adverse inference to be drawn that he may not have supported the plaintiff if he had been produced as a witness. Reference in this regard may be made to Article 129 (g) of the Qanoone-Shahadat Order, 1984. In this regard, reference may also usefully be C.R.No.12-2007 8 made to “Ghulam Akbar and another Vs Bashir Ahmad” (2006
YLR 2390).
13. The argument of the learned counsel for the petitioner was that non-appearance of the informant per se is not fatal to the case.However, the said statement is qualified by the fact that in such eventuality other witnesses in whose presence Talb-e-Muwathibat was made must be produced. In the instant case, this was not done. The finding of the learned first appellate court that the evidence of PW-2 alone was not enough to establish performance of Talb-e-Muwathibat was correct, logical and supported by case law on the subject.
Reference is made to “Muhammad Bashir and others Vs Abbas Ali Shah” (2007 SCMR 1105).
14. In a case reported as “Muhammad Asam Shah Vs Amanullah Khan” (2006 YLR 1194), it was held that the best evidence available to the plaintiff was the informant, but he did not examine him without affording any explanation. In these circumstances, the statement of the plaintiff alone could not be considered as sufficient. Independent proof was required to discharge the onus placed on the petitioner to establish
performance of Talb-e-Muwathibat. In this regard, reference may also usefully be made to “Amin ud Din Vs Mst. Zarina” (2003 CLC1775). A perusal of the record appended with the petition shows that the petitioner did not give any reason for non-production of the informant nor did she produce any other independent witness to discharge the onus of proof of Talb-e-Muwathibat. C.R.No.12-2007 9
15. Under the law of pre-emption, if any of the Talbs is not performed, the plaintiff cannot exercise the right of pre-emption. Statement of PW-2 Muhammad Ayub, who appeared as an attorney of the plaintiff was not enough. At best, his status was that of the plaintiff and even if, he appeared as a witness of Talb-e-Muwathibat, there was no independent evidence to substantiate her claim. The superior courts
have consistently held that the right of pre-emption is a feeble right and unless it is proved through credible and cogent evidence that each of the Talbs was performed strictly in accordance with law, the right of
pre-emption is lost. In the present case, the performance of Talb-e-Muwathibat by making a jumping demand is not established on account of failure on the part of the petitioner to produce credible
evidence and withholding the best available evidence without any explanation whatsoever. Further, neither the plaintiff appeared in person nor did she produce the informant, who was her real brother to substantiate her claim of performing Talb-e-Muwathibat. In addition, the solitary statement of PW-2 was not supported by any independent and credible evidence. In these circumstances, performance of Talb-e-Muwathibat was not proved.
15. Having come to the conclusion that the fact of performance of Talb-e-Muwathibat was not proved, the learned first appellate court rightly refrained from recording any finding on the question of performance of Talb-e-Ishhad. This would have been an exercise in futility in view of the fact that Talb-e-Muwathibat, which constitutes C.R.No.12-2007 10 the starting point for claiming the right of pre-emption had not been
established. The learned counsel for the petitioner has not been able to convince me that the findings recorded by the learned first appellate court suffer from any illegality or material irregularity. Further, no
misreading or non-reading of evidence has been demonstrated. The findings recorded by the learned first appellate court are well reasoned, based upon the record and founded on correct interpretation of the
relevant provisions of the Punjab Pre-emption Act. The same are unexceptionable and do not admit of any interference by this Court in exercise of its revisional jurisdiction.
16. Consequently, this petition fails. It is accordingly dismissed.
(IJAZ UL AHSAN)
JUDGE
Aamer
Approved for reporting.
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