How to establish right of Pre-emption?

PLJ 2004 Lahore 1211 Present: muhammad muzammal khan, J. RIAAZ AHMAD-Petitioner versus MUHAMMAD SADIQ-Respondent C.R. No. 2455-D of 1996, decided on 2.1.2004. Punjab Pre-emption Act, 1991 (IX of 1991)-- —-S. 13-Civil Procedure Code, 1908 (V of 1908), S. 115-Revision Jurisdiction-Suit for pre-emption-Trial Court found that plaintiff tu superior right, but on basis of appraisal of evidence, suit of petitioner w; dismissed-Plaintiff s appeal also met same fate-Validity-Petiitoner i doubt has superior pre-emptive rights and has so been held by Coui ah. below-Pre-empt sale in favour of respondent, asserted in plaint came to know of sale in dispute and immediately made jumping demand that he will pre-empt it as his right superior and in this manner performed talab- e-muwathibat and thereafter made talb-e-Iskkad-Knowledge of sale has been asserted to have gained by petitioner just after four days which does not appear to be un-natural and being prompt, there is hardly anything on file to doubt it-Petitioner has substantially performed talabs required by S. 13 and has proved those by evidence-PW 2 is not only informer giving information of sale to petitioner, but is also witness of talab-e-Muwathibat and has also signed notice of talab-e-Ishhad as its marginal witness—Other marginal witness of notice was not present at time of talab-e-Muwathibat, as such was not supposed to depose anything regarding it-Law does not require that talab-e-muwathibat be made in presence of two witnesses who should also sign notice of talab-e-Ishhad- Petitioner had performed talabs in accordance with law and as such his suit could not have been dismissed but Courts below relying on minor discrepancies which do not dispel impact of evidence of PWs, incorrectly non suited him-Respondent while appearing as witness stated that he incurred amount of as expenses for execution and completion of sale deed-His statement to this extent was not cross-examined which means that petitioner has admitted that claim of respondent-Held: Decisions of Courts below run counter to evidence on file, consequently cannot be maintained-Held further: Petitioner will pay amount as incidental charges in addition to sale price-Petition succeeds. [Pp. 1214, 1215 & 1216] A, B, C, D, E, F & G Mr. Imran Raza Chadhar, Advocate for Petitioner. Mr. Taqi Ahmad Khan, Advocate for Respondent. Date of hearing: 23.12.2003. judgment This civil revision assails the judgments and decrees dated 18.4.1994 nd 12.3.1995 passed by the learned Civil Judge and the learned Additional )istrict Judge, Daska District Sialkot, whereby, the suit of the petitioner and is appeal was dismissed, respectively. 2. Precisely, relevant facts for the disposal of this petition are that le petitioner filed a suit for possession through pre-emption against the sale Elected through a registered sale deed dated 19.12.1992 for an amount of -s. 1,75,000/- regarding land measuring 10 kanals and 2 marlas in village ihokhay Wali, Tehsil Daska District Sialkot. He pleaded that he gained nowledge of sale on 24.12.1992 and immediately exclaimed intention to ave the land in question by filling a pre-emption suit, fulfilling the jquirement of talab-e-muwathibat. The petitioner also pleaded that after :lab-e-muwathibat he issued a notice under a registered postal cover, xknowledgment due dated 24.12.1992 performing talab-e-Ishhad and lereafter he filed the suit on 8.3.1993 and performed talab-e-khasumat. The petitioner claims his superior pre-emptive right being "Shafi Khalit" and Shafi Jar" i.e. being owner of adjacent property, having joint ways and means of irrigation. 2. The respondent being defendant in the suit contested it and controverted the assertion in the plaint. He also denied performance of talabs by the petitioner and urged for dismissal of the suit. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned trial Judge who was seized of the matter, on the basis of his appraisal of evidence, dismissed the suit of the petitioner vide his judgment and decree dated 18.4.1994. 3. The petitioner aggrieved of the decision of the trial Court dated 18.4.1994 filed an appeal before the learned Additional District Judge but remained unsuccessful, as his appeal was dismissed vide his judgment and decree dated 12.3.1999. Thereafter he came up before this Court in revisional jurisdiction against the concurrent judgments and decrees of both the Courts below, for their annulment. 4. The learned counsel for the petitioner submits that both the talabs i.e. talab-e-muwathibat and talab-e-Ishhad were performed by the petitioner which were duly asserted by him in his plaint and were proved through evidence on the file but both the Courts have incorrectly relied on the minor discrepancy is in the statements of witnesses and non-suited the petitioner. The learned counsel for the petitioner further submits that contradictions, if any, are of minor nature, which do not effect performance of talabs by the petitioner. He claimed that substantial compliance ol performance of talabs and discharge of onus placed on him, in accordance with the provisions of law, is evident on the face of the record but a contrary view is not sustainable. 5. Conversely, the learned counsel for the respondent besides supporting the judgments and decrees of the Courts below, refuted the submissions of the petitioner and urged that concurrent findings of facts delivered by the two Courts below can neither be made subject of scrutiny this Court nor re-appraisal of evidence in revisional jurisdiction, permissible under law. He further contends that contradictions noted by two Courts below, go to show that witnesses of the petitioner are no truthful and their statements cannot be based for the proposition that petitioner performed the required talabs. He further elaborates arguments by saying that witnesses of both the talabs, taiab-e-muwathiba and Talab-e-lshhad should be the same because a pre-emptor is required re-affirm the talab-e-muwathibat while making second talab, i.e. talal Ishhad. He referred; to the judgment in the case of Muhammad Ramzan vs Lai Khan (1995 SCMR 1510) Abdul Qayyurn vs. Muhammad Rafique (200 SCMR 1651) and Anwar Ali vs. Shah Nawaz and others (PLD 1989 Karachi 246. 6. I have anxiously considered the arguments of the learned counsel for the parties and have examined the record appended herewith. The petitioner no doubt has a superior pre-emptive rights and has so been held by both the Courts below. He in order to pre-empt the sale in favour of the respondent, asserted in para 4 of the plaint that he came to know on 24.12.1992 of the sale in dispute and immediately on gaining knowledge, made a jumping demand that he will pre-empt it as his right superior, to that of the respondent and in this manner performed talab-e-muwathibat and thereafter made talab-e-Ishhad by sending a notice attested by two truthful witnesses under a registered postal cover and in this view of the matter performed talab-e-Ishhad. These assertions in the plaints were proved through his own statement as PW.l and those of PWs. 2 and 3. PW. 2 is the person who informed the petitioner regarding, the sale in dispute and he is also a witness of notice of talab-e-Ishhad (Ex. P.I). Talab-e-muwathibat was performed by the petitioner in his presence. PW. 3 is the second witnesses of notice of talab-e-Ishhad (Ex. P.I) Statements of PW.l and 2 duly proved performance of talab-e-muwathibat as asserted in the plaint and there is no contradiction or discrepancy therein irspite of lengthy cross examination to both these witnesses. Contradictions noted by the Courts below are only with regard to getting copies of the revenue record by the petitioner, after performance of talab-e-Muivathibat. Statements of PW. 1 and 2 narrating differently circumstances taking place after performance of first talab, do not wipe of their statements whereby they had consistently deposed corroborating the assertion in the plaint. At the same time these alleged discrepancies do not reflect on truthfulness of the witness who have no personal interest in the land in dispute and are not shown to be inimical to the respondent. The statements of the witnesses were recorded after lapse Df about 7 months of the sale and such minor discrepancies are bound to occur by lapse of time. Both the witnesses PWs 1 and 2 are consistent regarding,time, place, day, and manner of conveying information of sale and manner or performance of talab-e-muwathibat by the petitioner. Sale was jffected through a registered sale-deed dated 24.12.1992 and the petitioner lad asserted in his plaint that no notice in terms of Section 31 of the Punjab i're-emption Act, 1991, was given by the sub registrar concerned. The cnowledge of this sale has been asserted to have gained by the petitioner on J4.12.1992 just after four days which does not appear to be un-natural and >eing prompt, there is hardly anything on the file to doubt it. I accordingly ind that the petitioner has substantially performed talabs required by section 13 of the Punjab pre-emption Act, 1991 and has proved those by :vidence on the file. 7. Judgments in the case of Abdul Qayyum (supra) relied by the sarned counsel for the respondents goes to support the view that by larration of performance of talabs in the plaint by the pre-emptor and proof those by producing witnesses is substantial compliance of the law. The etitioner had disclosed all the material facts in the plaint and thereafter in is own statement, corroborated by the other witnesses, as such case of the espondent is not advance by reliance on this judgment of the Hon'ble upreme Court of Pakistan. In the case of Muhammad Ramzan (supra), vriowledge of the sale was asserted after a month but the Hon'ble Supreme ourt took the view that the plaintiff was deemed to have acquired nowledge of attestation of mutation of sale within two weeks. Relying on lie provisions of Section 31 of Act of 1991. In the instant case the petitioner ad asserted that notice in terms of pre-emption law, was not given and at he same time, proved knowledge of sale through registered sale-deed, just i'ter four days, is so prompt that the precedent case does not support the ubmissions of the respondent's counsel. Similarly judgment in the case of \nwar Ali (supra) lays down that pre-emptor has to make reference to his Irst demand by way of talab-e-muwathibat at the time of talab-e-Ishhad. The petitioner did mentioned in his notice Ex. P.I. that he performed talab-e- muwathibat in the presence of PW. 2 and nothing more was required to be done by him under law. 8. PW. 2 is not only a informer giving information of sale to the petitioner but is also a witness of talab-e-muwathibat and has also signed the notice of talab-e-Ishhad, as its marginal witness. Other marginal witness of the notice was not present at the time of talab-e-muwathibat, as such was not sposed to depose anything regarding it. Law does not require that talab-e- muwathibat be made in the presence of two witnesses, who should also sign the notice of talab-e-Ishhad, hence, I do find any substance in the argument of the learned counsel for the respondent that suit of the petitioner should be dismissed on the ground that the PW. 3, second witness of notice, was not present at the time of performance of talab-e-muwathibat. 9. In view of the authoritative judgment of Honourable Supreme Court in the case of Abdul Malik versus Muhammad Latif (1999 SCMR 717), Muhammad Gul vs. Muhammad Afzal (1999 SCMR 724), wherein it was held that pre-emptor who had made talab-e-muwathibat and had dispatched notice of talab-e-Ishhad within the specified time, sufficiently complied with the provisions of Section 13(3) of the Punjab Pre-emption Act 1991, I respectfully following this dictum, hold that the petitioner had performed all the three talabs in accordance with law and as such his suit could not have been dismissed but both the Courts below relying on minor discrepancies which do not dispel the impact of evidence of the PWs, incorrectly non suited him. Hence their judgments and decrees, run counter to the evidence on the file, consequently, cannot be maintained, being tainted with material illegality and irregularity. 10. Sale subject of this suit was made through a registered sale- deed, which shows that respondent, paid entire sale price in presence of the sub registrar, at the time of its registration. Sub registrar has certified this fact in his order attesting the sale-deed. A presumption of correctness is attached to this endorsement, having been inscribed during discharge of official/statutory duties. This Court has already decided that a presumption of correctness is attached to such endorsements, in the cases of (Pirla etc. Versus Noora etc. (PLD 1976 Lahore 6), and Malik Wahid Bakhsh versus Ch. Muhammad Shaft (PLD 1976 Lahore 1069). Petitioner has asserted in his plaint that sale was, in fact, made for Rs. 1.00 Lac but he has neither produced any positive evidence in support of his this assertion nor brought any thing on the file to show that endorsement by the sub registrar over Ex. D.I was incorrect. The natural result is that property in question is proved to have been sold for Rs. 1,75,000/- actually fixed and paid to the vendor and similar findings of the Courts below on this point, are correct. 11. Respondent/vendee claimed in his written statement that he besides payment of sale price of Rs. 1,75,000/- incurred expenses on the sale- deed which in case suit of the petitioner is decreed, have to be paid to him. He while appearing as his own witness as DW. 1 stated that he incurred an amount of Rs. 25,000/- as expenses for execution and completion of the sale- deed. His statement to this extent was not cross-examined by the petitioner which means that petitioner has admitted this claim of the respondent. An uncrossed portion of witness was held to have been admitted in the case of Mst. Nur Jehan Begum through legal representatives versus Syed Mujtaba Ah Naqvi (1991 SCMR 2300) and Shah Muhammad and another versus Hafiza Begum and 2 others (2000 MLD 404). Even otherwise claim of the respondent of Rs. 25,000/- on account of incidental charges/expenses, does not appear to the exorbitant because original sale-deed Ex. D.I shows that stamp papers of the value of Rs. 10,500/- were purchased for inscribing it. Respondent must have paid some thing to its scribe and towards other taxes, like District Council Fee etc. Pre-emption being a right of substitution and as such, pre-emptor must bear all those expenses, which were incurred by vendee. It is accordingly held that petitioner will pay an amount of Rs. 25,000/- as incidental charges, in addition to the sale price. 12. For what has been discussed above this civil revision succeeds, both the judgments and decrees dated 18.4.1994 and 12.3.1995 passed by the learned Civil Judge and the learned Additional District Judge Daska District Sialkot are set aside and suit filed by the petitioner, is decreed subject to deposit by him in the trial Court an amount of Rs. 1,75,000/- plus Rs. 25,000/- (incidental charges) i.e. (Rs. 2,00,000/- (Two Lac) after deducting one third, if any, already deposited, on or before 25.2.2004 failing which his suit shall stand dismissed. This civil revision is accepted. There will be no order as to costs. (B.T.) Petition accepted.