Saturday, 21 September 2013

What is the remedy in case of dismissal of Pre-emption Suit?

PLJ 2000 Peshawar 56
Present: TALAAT QAYYUM QURESHI, J. BASHIR AHMAD and others-Petitioners
versus
                                                      MURTAZA KHAN-Respondent C.R. No. 22 of 1995, decided on 10.9.1999.
North West Frontier Province Pre-emption Act, 1987 (X of 1987)-
—S. 13--Civil Procedure Code (V of 1908), S. US-Dismissal of suit for pre­emption by trial Court—Appellate Court reversed finding of trial Court by decreeing plaintiffs suit-Validity-Plaintiff claimed in his plaint that immediately on receipt of information regarding sale transaction he made talb-i-muwathibat there and then in same sitting and thereafter he made talb-i-lshhad through registered A.D. notice in the name of petitioners-Plaintiff and his witnesses have corroborated each other on assertion that the moment plaintiff came to know of the sale, he immediately made  demand in same sitting by declaring his intention to exercise right of pre­emption-Plaintiff after fulfilling requirement of immediate demand i.e. talb-i-muwathibat, served notice of talb-i-ishhad, wherein it was specifically mentioned that he acquired knowledge of sale transaction on 29.1.1989 and in the same sitting where he got such information, he in presence of witnesses declared his intention to exercise right of pre­emption-Statement of plaintiff on oath complied with written notice sent to petitioners within seven days of talb-i-muwathibat substantiallycomplied with legal requirements of S. 13(3) North West Frontier Province Pre-emptions Act 1987-Judgemnt and decree of Appellate Court decreeing plaintiff's suit was maintained in circumstances.
[Pp. 60, 61, 62 & 64] A to E
JUDGMENT
Brief facts giving rise to the revision petition in hand are that M/s. Bashir Ahmad, Shabbir Ahmad and Tanveer Ahmad, petitioners, purchased land measuring 1 Kanal10 Marias Comprising Khasra No. 3734 from Aurangzeb vide Mutation No. 8453 attested on 28.5.1988 for Rs. 90.000/-. Murtaza Khan respondent filed Suit No. 199/1 of 1989 for possession through pre-emption in the Court of Civil Judge, Mansehra. The petitioners resisted the suit on technical as well as factual side. Out of thepleadings of the parties the learned trial Court framed the following issues:—
1.                   Whether the plaintiff has got a cause of action?
2.                   Whether the plaintiff is estopped to sue?
3.                   Whether the suit is bad and not maintainable in its presentform?
4.                   Whether the suit is time-barred?
5.                   Whether the suit is hit by Section 13 of the Pre-emption Act,1987?
6.                   Whether the sale was struck with the consent of the plaintiffand the plaintiff has waived his rights if any?
7.                   Whether Rs. 10,000/- amount incurred on the process of sale, if
provided, whether the defendants are entitled to this amountbesides sale consideration?

8.                   Whether the plaintiff has fulfilled the provisions of Section 13 ofthe Pre-emption Act?
9.                   Whether the plaintiff has got a right of pre-emption?
10.             Whether Rs. 90,000/- was fixed as sale consideration in goodfaith and was actually paid?
11.             What is the market value?
12.             Whether the plaintiff is entitled to a decree of possessionthrough pre-emption as prayed for?
13.             Relief.

2.          After recording the evidence of the parties, hearing arguments of the learned counsel for the parties, the learned trial Court decided Issues Nos. 5 and 8 against pre-emptor/respondent and dismissed the suit vide judgment/decree dated 1.12.1993. Feeling aggrieved by the said judgment and decree, respondent Murtaza Khan filed appeal (No. 13/10 of 1994) in the Court of learned District Judge, Mansehra. On acceptance of the appeal vide judgment/decree dated 22.9.1994 the appellate Court reversed the finding of the trial Court and decreed the suit of respondent for possession through pre-emption of the land on payment of Rs. 90,000/-, the sale consideration entered in mutation. Dissatisfied with the conclusion arrived at by the learned District Judge, Manshera the vendees/petitioners have approached this Court through the instant revision petition.
3.          Mr. Ghulam Younas Khan Tanoli Advocate, the learned counsel for the petitioners argued that the respondent/plaintiff had failed to fulfil requirements of'talb-i-Muwathibat' and 'talb-i-ishhad'. Neither the date nor the time nor the place of acquiring knowledge was mentioned in the plaint, therefore, the suit of the plaintiff was liable for dismissal. He placed reliance on:-

1.                    "Shah Hussain and 9 others vs. Khani Zaman" PLD 1996Peshawar 73,
2.                    "Abdul Hameed vs. Haqa Nawaz" PLJ 1999 Lahore 681,
3.                    "Allah Yar vs. Shah Muhammad etc." PLJ 1999 Lahore 773,
4.                    "Sajad Zaman etc. vs. Muhammad Yaqoob etc." NLR 1999(Civil) 527.
He further argued that Mutation No. 8453 was attested on 25.8.1988 but the plaintiff served notice of 'talb-i-ishhad' on 5.2.1989. This delay has not been explained by the respondent/plaintiff. The plaintiff had the knowledge of the sale transaction even before the attestation of mutation in favour of

petitioners. As per Section 31 of Pre-emption Act the limitation would start from the date of attestation of mutation. The 'talabs' were not made in time, therefore, the suit of the plaintiff deserved dismissal and the learned trial Court had rightly dismissed the same but the learned appellate Court while misreading the evidence accepted the appeal. He placed reliance on "Muhammad Ashraf vs. Tahirand 6 others" 1990 MLD 2399.
4.  Repelling the arguments of the learned counsel for the petitioners Mr.  M.H.  Lughmani  Advocate,  the  learned  counsel   epresenting  the respondent/plai tiff argued that the learned trial Court decided the case on two issues, i.e., Issues Nos. 5 and 8 which are almost the same in nature. He stated at bar that mentioning the  date, time and place  of acquiring knowledge in the plaint was not sine-qua-non. He placed reliance on recent judgment of August Supreme Court of Pakistan "Sar Anjam vs. Abdur Raziq" Civil Appeals Nos. 44, 573 and 574 of 1997 decided on 30.4.1998 and "Amir Jan and 3 others vs. Haji Ghulam Muhammad" PLD 1997 SC 83. 5.     Replying the other arguments of the learned counsel for the petitioner that the 'talabs' were not made in accordance with law and delay has not been explained by the respondent/plaintiff, the learned counsel for the respondent stated that 'talb-i-Muwathibat' and 'talb-i-ishhad' were made in accordance with law on gaining the knowledge and there is no delay at all. I have heard the learned counsel for the parties and perused therecord.
6.         So far as the first point agitated by the learned counsel for the petitioners that date, time and place of acquiring knowledge was not mentioned in the plaint and the plaint on this score alone deserved dismissal is concerned, the same has no force in view of the recent judgments of  August S.C. of Pakistan. The question as to whether it is sine-qua-non for the pre-emptor to specify in the plaint the names of the witnesses in whose presence 'talb-i-muwathibat' under Section 13 of the North West Frontier Province Pre-emption Act (X of 1987) was made by the pre-emptor and the place, date and time of making the 'talabs', came up before August SupremeCourt of Pakistan in Civil Appeal No. 44 of 1997 (Sar Anjam vs. Abdur Raziq), Civil Appeal No. 573 of 1997 (Shakirullah vs. Aminullah) and Civil Appeal No. 574 of 1997 (Muhammad Ishaq Khan vs. Amir Nawaz Khan). Their Lordships after discussing various judgments held in paragraph No. 10 of their judgment:
"The above survey of case law would thus lead us to the conclusion that the pleadings of the parties should contain only material facts and are, therefore, not required to contain the gist of evidence and names of witnesses."
"We have, therefore, no hesitation to hold that it is not a sine qua non for a pre-emptor to specify in the plaint the names of witnesses in whose presence he had made'talb-i-muwathibat' and also specify the time and place of making the 'talabs' under Section 13 of the Act"
8. Similarly, in the case "Amir Jan and 3 others vs. Haji Ghulam Muhammad1PLD 1997 SC 883 it was held:
"No doubt Order 6, Rule 2 CPC provides that material facts are to be stated in pleadings but it does not mean that evidence through which such material fact is to be proved shall also be. stated in pleadings. In our view it would be sufficient requirement of law if it is alleged in the pleadings that after having came to know of sale thepre-emptor declared his intention to pre-emption the sale. This material fact has to be proved at the trial through evidence on the issue framed in this regard."
In case in hand the respondent/plaintiff in Paragraph No. 2 of his plaint has stated:-

In his statement he stated that he gained the knowledge of sale transaction on 29.1.1989 and in the same sitting where he got such information, in the presence of witnesses he declared his intention to exercise the right of pre­emption. Notice of the 'talb-i-ishhad' was sent to the petitioners on 5.2.1989. Copy of the notice has been placed on record as Ex.P.W. 5/1. 1 hold that the-Requirements of law have, therefore, been fully met as the respondent/plaintiff has alleged in the pleadings that after having come to know of sale he declared his intention to pre-emption such sale. Specific Issues Nos. 5 and 8 were framed by the learned trial Court and parties led their evidence. Wisdom is drawn from "Amir Jan and 3 others us. Haji Ghulam Muhammad" PLD 1997 SC 883 it was held:
"Requirements of law would be fully met if it was alleged in the pleadings that after having come to know of sale pre-emptor declared his intention to pre-empt such sale. Material fact must be proved at trial through evidence on issue framed in that regard. Evidence to be led need not be alleged in the plaint."
I am, therefore, clear in my mind that it is not sine-qua-non for the pre-emptor to specify in the plaint the names of the witnesses in whose presence   he had made'talb-i-muwathibat' and also specify the time and the place to make the 'talb-i-muwathibat' and the respondent/plaintiff could not be non­suited only on this ground that he flailed to mention the time and place where 'talb-i-muwathibat' was made.
9.  The other point urged by the learned counsel for the petitioner is that 'talabs' were not made by the respondent in accordance with law. This argument of the learned counsel for the petitioner equally has no force. The case of the respondent/plaintiff is that he gained knowledge of the sale transaction on 29.1.1989 through Faqir (P.W. 7) while he was sitting in the village Baithak alongwith Ghulam Hussain P.W. 6, whereupon there and then he announced that he would file pre-emption suit against the vendees because of his superior rights and thereafter on 5.2.1989 he made 'talb-i- iskhad" through notice sent through registered A.D. thereby fulfilling therequirements of Section 13 of NWFP Pre-emption Act, 1987. He clearly mentioned in para 2 of his plaint that immediately on receipt of information regarding sale transaction, he made 'talb-i-muwathibat' there and then in the same sitting and thereafter he made 'talb-i-ishhad' through registered AD notice in the name of petitioners. Appearing as P.W. 5 respondent/plaintiff claimed that when he alongwith Ghulam Hussain P.W. 6 was sitting in thevillage Baithak, Faqir (P.W. 7) came and made disclosure of the sale transaction whereupon there and then he announced that he would file pre­ emption suit against the vendees because of bis superior rights. Ghulam Hussain P.W. 6 did endorse the statement of respondent by saying that P.W. Faqir came to village Hujra and told about the sale transaction by Aurangzeb in favour of Bashir Ahmad etc. vendees and immediately the plaintiff declared that he would pre-empt the transaction. Faqir Muhammad appearing for plaintiff as P.W.  7 further confirmed about immediate announcement of pre-empting the sale transaction by the plaintiff, the moment he informed him of the bargain.
10.   Under Section 13 of the NWFP Pre-emption Act, 1987 right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption through 'Talb-i-muwathibat', 'Talb-i-ishhad' and finally 'talb-i-khusumat'. Talb-i-muwathibat means immediate demand by the pre-emptor in the sitting or meeting in which he came to know of the sale, declaring his intention to exercise his right of pre-emption. Shortly, to prove 'talb-i-muwathibat' any words indicative of his intention to enforce his right of pre-emption are sufficient. Although the law does not require presence of witnesses at the time of 'talb-i-muwathibat' as held by Supreme Court of Pakistan in Civil Appeal No. 560 of 1995 titled "Zarghan Shah vs. Muhammad Yaqoob" decided on 25.6.1998 in which it was held, in paragraph No. 3 of the said judgment,
"Having heard the learned counsel for the parties and having gone through the evidence on record we are of the view that the appeal merits to succeed. Learned Judge in Chamber has taken tootechnical a view of the evidence on record in respect of making of 'talb-i-muwathibat'. It is pertinent to note that 'talb-i-muwathibat' need not be made in the presence of witnesses."
11.             In the case in hand, respondent/plaintiff and two witnesses referred by me have corroborated each other on the assertion that the moment the plaintiff came to know of the sale, he immediately made demand in the same sitting by declaring his intention to exercise the right of pre-emption.
12.             As per law of pre-emption,--the emphasis is on declaration of intention to exercise right of pre-emption on receiving information about sale of property. This information might have been received while being alone or in meetings. After fulfilling tne requirement of  mmediate demand, Le.,  'talb-i-muwathibat' the respondent served notice of 'talb-i-ishhad', wherein it is specifically mentioned that he acquired knowledge of sale transaction on 29.1.1989 and in the same sitting where he got such information, he in presence of witnesses declared his intention to exercise the right of pre-emption. Copy of notice has been placed on record as Ex.P.W. 5/1. Although the record was destroyed by the Postal Department under the provisions of Pakistan Postal Rules as the matter pertains to period beyond one and half years yet Mumtaz Khan Town Inspector G.P.O. who was examined as P.W. 4 confirmed that receipt No. 170 regarding the registered letter was issued by Post Office which bore the stamp of concerned Post Office. He also confirmed that the A.D. was issued by Post Office. This P.W. (P.W. 4) was not even cross-examined by the petitioners and,      therefore,      his     statement      remains     unquestioned.      The respondent/plaintiff in his statement before the Court explained during  he cross-examination that a notice was registered from City Post Office. P.Ws. Ghulam Hussain and Faqir Muhammad are also unanimous that they signed notice of Talb-i-ishhad on the 7th day of making of 'talb-i-muwathibat' by plaintiff. The notice is dated 5.2.1989 and it was sent through registered A.D. on the same day.

13.            Under sub-section (3) of Section 13 of NWFP Pre-emption Act, 1987 after making 'talb-i-muwathibat' the plaintiff is required to make 'talb- i-ishhad' by sending a notice in writing duly attested by two witnesses, through registered post A.D. to the vendees within 14 days. The plaintiff having gained knowledge of the transaction on 29.1.1989 made 'talb-i- muwathibat' on the same day and sent notice on 5.2.1989, it is well within the prescribed time limit, as such the trial Court was wrong to decide Issues Nos. 5 and 8 against the respondent/plaintiff. It is worth mentioning here that no notice under Section 32 of NWFP Pre-emption Act, 1987 was given  by Revenue Officer within 14 days of attestation of mutation.
In a case "Muhammad Gul vs. Muhammad Afzal" 1999 SCMR 724 it was held:


"Section 13(3)-Notice expressing Talb-i-ishhad' was sent by pre-emptor after 10 days of making talb-i-muwathibat'. Statement of pre-emptor on oath coupled with notice sent to vendees within 10 days of 'talb-i-muwathibat' held was substantial compliance of legal requirements of Section 13(3) of Punjab Pre-emption Act, 1991."
15. Similarly, in Civil Appeal No. 560 of 1995 (Zarghun Shah vs. Muhammad Yaqoob Khan), mentioned earlier, the august Supreme Court of Pakistan reversed the findings of the learned Judge of the High Court regarding the evidence in respect of making of Talb-i-muwathibat. The findings of the High Court were analysed in para-2 of the judgment and read:
"Date of execution of notice Ex.P.W. 7/1 is 7.8.1991 and this is alleged to be the third day, meaning thereby that the Talb-i-muwathibat was made on 4.8.1991. This, according to the learned Judge of the High Court, stands totally falsified by a hard fact that the very mutation of sale in dispute was attested on 5.8.1991. So, the story ofTalb-i-muwathibat is concocted even after the filing of plaint. Learned Judge of the High Court, in paragraph 6 of the impugned judgment noted certain contradictions with regard to the meeting of the plaintiff in the baithak of Sakhi Marjan and formed the view that the notice was stated to have been drafted on 7.8.1991 and if thenotice was signed three days after Talb-i-muwathibat then this would bring the date of notice to be 10th or llth of August, 1991. Hence, Talb-i-muwathibat as alleged to have been made stands totally disproved. Learned Judge of the High Court was also of the view that though the suit is liable to be dismissed on the disproof of Talb-i-muwathibat yet notice Ex.PW. 7/1 and the copy of Petition Writer Ex.PW. 7/2 would suggest that those do not bear the thumb impression of any witness. He further observed that the afore-noted observation anyhow with regard to Talb-i-ishhad was made just as a passing reference whereas the suit of the plaintiff was liable to bedismissed for non-fulfilment of Talb-i-muwathibat."
The Supreme Court of Pakistan did not approve these conclusion of the learned Judge in the High Court and observed in Para-3 of the judgment that the learned Judge has taken too technical a view of the evidence on record in respect of making of the Talb-i-muwathibat and observed as immaterial the contradictions in the evidence of the plaintiff relating to time, date and place of Talb-i-muwathibat, holding that the right of pre-emption cannot be allowed to fail at the later of technicalities.
16.   Likewise in C.P.As. Nos. 44, 573 & 574 of 1997, decided on 30.4.1998, the August Supreme Court of Pakistan had held:
"We have followed the principle annunciated by a learned Division Bench in the case of Ameer Jan on the non-desirability of stating in

the plaint the time and place of making Talb-i-muwathibat and the name of the witnesses before whom it has made. We are also inclined to hold that assertion in para-3 of the plaint coupled with the indication in the notice of Talb-i-Ishhad having made 'Talb-l-muwathibat' is sufficient compliance of requirement of Section 13 ibid."
The notice of Talb-i-ishhad primarily means demand by establishing evidence. In the notice of Talb-i-ishhad, the plaintiff/respondent has given the date of getting knowledge, i.e., 29.1.1989 in the presence of the witnesses, namely, Ghulam Hussain and Farqir Muhammad who have both appeared as witnesses for the plaintiff and corroborated him on material facts regarding his immediate declaration of intention to exercise the right of pre­emption. The place where the plaintiff was informed about the sale transaction, has also been established.
17. The statement of respondent/plaintiff on oath coupled with the written notice sent to the petitioners within 7 days of 'talb-i-muwathibat' substantially complied the legal requirements of Section 13(3) of NWFP Pre­emption Act, 1987.
Finding no merit, the revision petition is dismissed. The parties shall bear their own costs.
(A.A.)                                                                            Revision dismissed.

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