Lahore High Court, Lahore: (Judicial Department)
Lahore High Court, Lahore: (Judicial Department)
Lahore High Court, Lahore: (Judicial Department)
JUDGMENT
ےگ۔ اےلگ دن حبص وسریے دعاتل ںیم آ ےئگ۔ رعاضئ یوس ےس یوسٹ وھکلاای رھپ یوسٹ یک اکروایئ
ٰ وہیئ۔
The above referred statement indicates that the plaintiff did not make
immediate declaration to exercise his right of pre-emption upon getting
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information of sale but instead deferred it till the next day, which was
fatal to his claim of making valid Talb-i-muwathibat.
10. The second Talb which was required to be made and proved
by the plaintiff was Talb-i-Ishhad. It was maintained by the plaintiff that
on 12th of December, 2002 notice of Talb-i-Ishhad attested by two
truthful witnesses was sent to the vendee-defendant No.1. The defendant
No.1 in his written statement had denied the claim of the plaintiff with
respect to making of Talb-i-Ishhad. The record of the case indicates that
defendant No.1 after filing contesting written statement did not join the
proceedings of trial. This absence was, in no way, beneficial to the
plaintiff because for obtaining decree he had to prove by convincing and
reliable evidence that he had met the requirements of Talb-i-Ishhad. The
law with respect to making of Talb-i-Ishhad is contained in sub-section
(3) of section 13 of the Punjab Pre-emption Act, 1991 which envisages
that where a pre-emptor has made Talb-i-muwathibat, 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 acknowledgment due, to
the vendee, confirming his intention to exercise right of pre-emption. It
means that Talb-i-Ishhad shall be made by (a) written notice; (b) attested
by two truthful witnesses; (c) sent under registered cover; and (d)
acknowledgment due. These four formalities are mandatory where the
facility of post office is available. Admittedly in the present case, facility
of post office was available to the pre-emptor and, therefore, onus was
on him to prove that while making Talb-i-Ishhad said formalities were
strictly observed but on the contrary neither any of the witnesses, who
appeared on behalf of the pre-emptor, stated that notice was sent along
with acknowledgment due nor acknowledgment due card was produced
before the Trial Court. Such default as per settled principle1 was fatal.
Notwithstanding the above, the plaintiff also had to produce evidence,
1
E.A. Evans v Muhammad Ashraf (PLD 1964 SC 536)
Abdul Qayyum v Muhammad Rafique (2001 SCMR 1651)
Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105)
Muhammad Hayat v. Muhammad Jaffar (2009 CLC 259)
Basharat Ali Khan v Muhammad Akbar (2017 SCMR 309)
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including postman to prove that in fact notice was personally served
upon the vendee or that he refused to accept notice, which was sent at
his correct address.1 The plaintiff did not even meet this requirement of
the law, then the conclusion which could be drawn that the foundational
facts stated in the plaint were all false and the plaintiff was guilty of
making misrepresentation before the Court.
1
Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105)
Khan Afsar v. Afsar Khan and others (2015 SCMR 311)
2
Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086)
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justice, good conscious, and equity; and thirdly, the assertions of the
plaintiff with regard to second demand of pre-emption (Talb-i-Ishhad)
were also proved to be false as the notice was neither sent in the
prescribed manner nor it was served upon defendant No.1. The
admission of these false facts by defendant No.1 had no legal status as
no illegal act can be held justified by the concession of the opposite
party or in other words a false claim cannot be declared valid by the
statement of the defendant and if this is allowed to happen, it would
encourage fraud which in turn would create chaos in the society which is
not commendable. Upshot of the discussion is that as the entire
foundation of cause of action was false, the suit could not succeed even
as regards defendant No.1 admitting the plaintiff’s claim1. The Appellate
Court thus, misdirected itself while accepting the conceding statement of
defendant No.1 and as a consequence issued an illegal decree in the
exercise of its jurisdiction with material irregularities. So this revision
cannot be refused on the ground that the decree under challenge is a
consent decree and that objection with regard to the petitioner’s locus
standi also loses its significance as this Court has examined the said
decree under section 115(1) CPC. Resultantly, by reversing the findings
of the Appellate Court on issue No.1, it is held that the plaintiff had no
cause of action to bring the suit.
1
Habib Khan v. Mst. Taj Bibi and others (1973 SCMR 227)
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13. Now I address issue No.7-A viz, whether the petitioner was
the bonafide purchaser of the suit land. The claim of the petitioner was
that defendant No.1 namely, Abdul Aziz orally sold the suit land to him
on 22nd of October, 2002 vide Roznamcha Waqiati (Ex.D7), that is, prior
to the suit which was instituted by the plaintiff on 2nd of January, 2003.
The correctness of this claim could be easily determined by taking into
account the defence set up by the defendant No.1 in his written
statement and his evidence. Defendant No.1 although in his written
statement had denied the sale in favour of the petitioner yet this denial
had no legal value as defendant No.1 did not join the trial after filing the
written statement nor did he give any evidence to prove the contents of
his written statement. In these circumstances, I have to look at the
objection to the sale in the light of the plaintiff’s statement. The plaintiff
in the course of his cross-examination as P.W.1 had admitted the sale in
favour of the petitioner but his objection was that since it was
incorporated in the revenue record vide mutation No.495 (Ex.D1) dated
9th of June, 2003 during the pendency of his suit, the petitioner could not
be declared bonafide purchaser. This objection unequivocally suggests
that the oral sale made in favour of the petitioner did fulfill the
ingredients of sale. It would thus, mean that the petitioner-defendant
No.2 had acquired sufficient interest in the suit land on the basis of oral
sale prior to the date of filing of suit. It is true that this sale was not
made in accordance with the provisions of the Transfer of Property Act,
1882 but nevertheless it was valid in terms of section 2(d) read with
section 13 and section 30 of the Punjab Pre-emption Act, 1991 and could
be pre-empted. The attestation of this oral sale through mutation No.495
(Ex.D1) dated 9th of June, 2003 was just a consequential step so as to
bring it in conformity with the provisions of the Transfer of Property
Act, 1882 or for the purposes of the Punjab Land Revenue Act, 1967 and
other allied laws. In the wake of above, it could not be held that the
petitioner was not bonafide purchaser and consequently findings of the
Courts below in respect of issue No.7-A are hereby reversed. It is to be
noted that reversal of findings on issue No.7-A provides locus standi to
the petitioner to maintain this petition and also another ground to dismiss
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the suit following the principle settled in Din Muhammad’s case1 and
Ghulam Sarwar’s case2 as the land prior to institution of the suit, had
been transferred by way of oral sale in favour of the petitioner and to
which no demand of the pre-emption (Talb) was made by the plaintiff.
(SHAHID WAHEED)
JUDGE
Judge
M.R.Shad*
1
Din Muhammad v. Abrar Hussain and another (PLD 2009 Supreme Court 93)
2
Ghulam Sarwar v. Rukhsana Kausar, etc. (PLJ 2012 Lahore 442)