Pre-emption Suit and Fulfillment of Requisite Talabs

Pre-emption Suit and Fulfillment of Requisite Talabs Case Laws Civil Law Civil Revision Concurrent Findings Knowledge - Civil Law Lahore High Court Litigation & Arbitration Pre-Emption Solutions - Civil Law Mr. Justice Muhammad Sajid Mehmood Sethi in his judgment has decided the issue regarding pre-emption suit and fulfillment of requisite Talabs in Civil Revision No. 704 of 2016.

1. Through this petition filed under section 115 C.P.C., petitioner has challenged judgments and decrees passed by learned Civil Judge, Bhalwal, and learned Addl. District Judge, Bhalwal, whereby suit and appeal filed by petitioner was respectively dismissed.

2. Brief facts of the case are that petitioner/plaintiff filed a suit for pre-emption against respondents claiming his superior right of pre-emption over the suit property, which was contested by respondents by filing written statement. Out of divergent pleadings of the parties, learned trial Court framed issues. After recording of evidence and hearing arguments of learned counsel for parties, learned trial Court dismissed the suit vide judgment and decree dated 17.02.2015. Feeling dissatisfied, petitioner preferred appeal before learned appellate Court, which was also dismissed vide judgment and decree dated 13.11.2015, hence instant revision petition.

3. Learned counsel for petitioner submits that impugned judgments and decrees are result of mis-reading and non-reading of evidence brought on record. He adds that statement of PW-2 has been mis-read to the effect that petitioner got the knowledge of sale on 25.09.2010 at 11:00 a.m. by Mumtaz, who told him that land was sold on 24.09.2010, thus, mis-reading is quite apparent rendering impugned judgments and decrees not sustainable in the eye of law. In support of his contention, learned counsel for petitioner has relied upon Abdul Hakeem v. Mst. Jannat Bibi (2005 SCMR 1228), Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866), Muhammad Afzal v. Ali Muhammad (2014 YLR 87), Muhammad Taj and others v. Muhammad Nawaz (2014 MLD 1300), Noor Muhammad Sultan v. Hafiz Allah Bakhsh (2014 YLR 1381), Muhammad Hayat v. Zafar Iqbal and others (2014 CLC 308), Khadim Hussain v. Ghulam Farid, etc. (PLJ 2014 Lahore 921) and Ghulam Muhammad and another v. Mian Abdul Karim through L.Rs. (2014 YLR 774).

4. On the other hand, learned counsel for respondents defends the impugned judgments and decrees and submits that learned counsel for petitioner has failed to point out any illegality or material irregularity in the same, which are liable to be upheld.

5. Arguments heard and record perused.

6. The operative part of judgment and decree passed by learned appellate Court is reproduced hereunder:

“11. From the depositions of PW-2, PW-3 and PW-4 it stands proved that Mumtaz (informer) PW-3 got knowledge about the alleged sale on 25.09.2010 at about 9:30 a.m. but the plaintiff appearing as PW-2 deposed that he got knowledge on 24.09.2010 regarding sale of land by Fateh Muhammad and he told him on 25.09.2010. As such, there is material contradiction regarding gaining knowledge by PW-3 about the alleged sale and consideration amount. It is inferred from the statements of the PWs that the story as to performance of jumping demand i.e. Talb-i-Muwathbat, has been maneuvered rather no meeting/Majlis was held on the said date, time and place. Thus, the plaintiff has miserably failed to prove the fulfillment of requisite Talabs as per law.

12. So far as Talb-i-Ishhad is concerned, in view of Section 13 of the Act ibid, the plaintiff is bound to prove that he sent a registered cover notice A.D. to the defendants. The plaintiff has not tendered any receipt of sending the said notice to the defendants through acknowledgement due. The plaintiff as PW-2 stated that he sent notice under registered cover A.D. to the father of defendants. However, defendant No.3 is minor, so the notice of Talb-i-Ishhad was sent to his father and he tendered photocopy of notice Ex.P.1. As per PW-2, the notice was sent to the father of the defendants. The impugned mutation is scanned which shows that the defendants purchased suit land from Fateh Muhammad, etc. vide Ex.D1, in the sum of Rs.43,00,000/-. Defendants Naveed Mohsin and Saeed Mohsin, are major whereas Waleed Mohsin is a minor. According to law of pre-emption, the plaintiff is bound to prove service of notice of Talb-i-Ishhad, to the defendants, but the notice was allegedly sent to their father. As such, service of notice to the defendants was neither proved nor tendered any receipt of A.D. by the plaintiff. The pre-emptor has not established that service of notice of Talb-i-Ishhad was made through registered post with A.D. The plea raised by the pre-emptor was not backed by any law and therefore was not tenable. Reliance is placed on the case law “Munawar Hussain and others v. Afaq Ahmad etc” (2013 SCMR 721).

13. In view of the above discussion, the findings of learned trial court on issue No. 2 are upheld.”

7. Perusal of impugned judgments and decrees shows that question of performance of Talbs has been discussed in length by both the Courts below and concurrently concluded that the requirements for performance of Talb-i-Muwathibat as well as Talb-e-Ishhaad had not been fulfilled. Law on the subject is quite clear that Talb-i-Muwathibat was to be announced in a meeting/Majlis in presence of informant and two witnesses. Reference in this regard can be made to Mutali v. Khizar Hayat and others (PLD 2012 Lahore 1), Muhammad Rafique v. Muhammad Shafique and others (2013 MLD 31) and Abdul Sattar v. Mian Muhammad Attique and others (2010 YLR 31).

Further information regarding pre-emption suit and fulfillment of requisite Talabs can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.