Malik Shoukat Ali Awan vs Ghulam Hussain (Deceased0 etc.

Form No:HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

(JUDICIAL DEPARTMENT)

CR No.516/D of 2022 Malik Shoukat Ali Awan Versus Ghulam Hussain (deceased) through LRs. etc.

S.No. of Date of order/ Order with signature of Judge and that of order/ Proceedings Parties or counsel, where necessary. Proceedings

19.02.2025 Mr. Muhammad Ilyas Sheikh, Advocate for petitioner.

On 30.01.2014, petitioner being plaintiff (“plaintiff”) filed suit for possession through pre- emption regarding land measuring 1-kanal 13- marlas, detail of which is mentioned in para 1 of the plaint stating therein that on 09.01.2014 at 4:00 p.m., he alongwith Muhammad ShafaatPW.2 and Liaqat AliPW.3 was sitting in the drawing room of his house situated at village Dhoke Malik Shaukat, Rawalpindi, his son Ghulam AbbasPW.1 informed him regarding sale of suit property in consideration of Rs.1,50,000/- to respondents (but defendant fictitiously mentioned ostensible sale price Rs.2,00,000/-), plaintiff spontaneously made “Talb-i-Muwathibat” in the same meeting being Shafi Sharik, Shafi Khalit and Shafi Jar; that plaintiff on 18.01.2014 got sent notice of “Talb-e-Ishhad” attested by witnesses under registered cover acknowledgement due, to Ghulam Hussain predecessor-in-interest of respondents (“defendant”), confirming his intention to exercise the right of pre-emption.

2.On the other hand, defendant while submitting written statement has denied assertions of the plaintiff.

Civil Revision No.516/D of 2022

3.Learned trial Court out of divergent pleadings of the parties framed issues whereafter both the parties adduced their respective evidence, (oral and documentary). At the end, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 09.07.2021. Appeal filed by defendant was accepted by the lower appellate Court vide judgment and decree dated 29.06.2022, resultantly suit of the plaintiff was dismissed. Hence, instant Civil Revision.

4.Heard. Record perused.

5.It is matter of record that mutation under challenge (Ex.P.8) was got registered on 11.12.2013 and sanctioned on 26.12.2013, it is mentioned in second last column of it as under:-

1-13-0رہبقدعتادی-"آجاعقشنیسحوریغہےناحرضآرکایبنایکہکمہےن "دوالھکروےپںیمقحبالغمنیسحوکہعیبرکدای200000/-ابوعلضغلبم Record shows that on the following day; 12.12.2013, plaintiff himself obtained copy of Jamabandi (Ex.P.6) from the same Patwari regarding the same Khasra numbers. Sale was completed on 11.12.2013 when mutation was got registered on the statement of venders reproduced above, sanctioning/attestation of mutation is a formality. Date of attestation of mutation can be considered for filing suit of pre- emption within four months (Section 30 of the Act). Transaction mentioned in it is to be proved through independent evidence, if challenged. Mutation is not document of title. All this shows that plaintiff had knowledge of the sale on 12.12.2013 when he obtained copy of Jamabandi discussed above but did not exercise his right of pre-emption by making

Civil Revision No.516/D of 2022

“Talb-i-Muwathibat” on the relevant date i.e. 12.12.2013, whereafter by concocting a story stated in the plaint that on 09.01.2014, he was informed by his son Ghulam AbbasPW.1 regarding the sale of the suit property and made “Talb-i-Muwathibat” but Ghulam AbbasPW.1 (informer) has not stated in his statement that from whom he obtained knowledge of the sale, then informed his father because his father had already knowledge of sale discussed above. Plaintiff has failed to prove “Talb-i-Muwathibat”.

6.Section 13(3) of Punjab Pre-emption Act, 1991 (“the Act”) provides mode of making of “Talb-e- Ishhad” which is hereby reproduced as under for reference:

13.Demand of pre-emption. (1).........

(3)Where a pre-emptor has made talb-i- muwathibat under sub-section (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make talb-i-ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption:

To establish “Talb-e-Ishhad”, four formalities; (a) written notice (b) attested by two truthful witnesses (c) sent under registered cover (d) acknowledgement due, if facility of post office is available as in present case are to be fulfilled being mandatory provision of law [13(3)]. Plaintiff had also to prove through solid evidence that notice was personally served upon the vendee. In present case, Azhar Hussain PostmanPW.6 while appearing before the trial Court although has stated in his examination-in-chief that he had served notice of “Talb-e-Ishhad” upon Ghulam Hussain personally yet he (Azhar Hussain PostmanPW.6) while rebutting his own statement stated in cross-

Civil Revision No.516/D of 2022

examination that neither he had recognized defendant nor he had visited his house for delivery of notice of “Talb-e-Ishhad” rather he used to leave “Daak” for the area of village Mangu Nama (where defendant was residing) at the general store, which was distributed amongst its addressees therefrom and registered post is also delivered in the same manner. He admitted in cross-examination that he had not personally visited the house of defendant for delivering registered post. Owner or employee of the general store who had statedly delivered registered post to defendant has not been produced to prove its delivery to defendant personally. In these circumstances, plaintiff has failed to prove service of the notice of “Talb-e-Ishhad” upon the defendant in person. Non performance of “Talb-e-Ishhad” in accordance with law is fatal to the case of the plaintiff. (2013 SCMR 866) “Allah Ditta through L.Rs and others Vs. Muhammad Anar”.

7.“Talb-e-Ishhad” is confirmation of intention to exercise a right of pre-emption. In present case, petitioner being plaintiff (PW.4) and his witnesses (Muhammad ShafaatPW.2 and Liaqat AliPW.3) have simply stated before the trial Court that notice in writing attested by them was sent to defendant but have not stated that plaintiff had confirmed his intention to exercise right of pre-emption which was requirement of Section 13(3) of the Act. In these circumstances, mere signing and sending of notice cannot be held to be a substantive compliance with the provisions of Section 13(3) of the Act. In view of the above, plaintiff has failed to substantiate “Talb-e-Ishhad”.

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(PLJ 2014 SC 787) “Muhammad Zahid Vs. Dr. Muhammad Ali”.

8.In view of the above, the lower appellate Court while accepting civil appeal filed by defendant has rightly dismissed suit of plaintiff. Learned counsel for the plaintiff/petitioner could not point out any mis-reading or non-reading of evidence in the impugned judgment which is neither perverse nor illegal.

9.For the foregoing reasons, this petition having no merits is dismissed.

(SADAQAT ALI KHAN)

JUDGE

APPROVED FOR REPORTING.

JUDGE

دیشمجوصقری