JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)
Civil Revision No.2422 of 2010
Muhammad Bakhsh
Vs.
Faiz Muhammad, etc.

JUDGMENT

Date of Hearing: 05.10.2020.

Petitioner by: Mr. Ghulam Hussain Malik , Advocate.

Respondent No.1 by: Mr. Muhammad Hanif Niazi, Advocate.

Respondent No.2 by Mr. Muhammad Shakil Ghauri,

Advocate.

SHAHID WAHEED, J. The subsequent vendee has

brought this application under Section 115 CPC to seek revision of the
appellate decrees issued by the Addl. District Judge, Bhakkar through
his consolidated judgment dated 27th of March, 2010 whereby the decree
dated 12th of April, 2007 of the Trial Court was reversed and suit of the
plaintiff, respondent No.1 herein, for possession through pre-emption
was decreed.

2. The facts of the present case paint a sordid picture of

collusiveness, misrepresentation and misapplication of law. Dispute in
this case related to the land measuring 8-Kanals situate in Chak
No.51/TDA, Tehsil and District Bhakkar which was owned by one
Muhammad Amin. This land was sold to defendant No.1, namely, Abdul
Aziz (respondent No.2 herein) vide mutation No.492 dated 21st of
September, 2002 (Exh.P5). This sale was sought to be pre-empted by the
plaintiff on the ground of his superior right of pre-emption with the
assertion that he had made requisite Talbs in accordance with the law.
On 2nd of January, 2003 the plaintiff (respondent No.1 herein)
impleading Abdul Aziz as defendant instituted a suit seeking decree for
possession of the above stated land through pre-emption. At trial, the
 2
C.R. No.2422 of 2010
present petitioner filed an application under Order 1 Rule 10 CPC for his
impleadment as defendant in the suit on the ground that he had
purchased the suit land from Abdul Aziz on 22nd of October, 2002 for a
consideration of Rs.175,000/- vide Roznamcha Waqiati dated 22nd
October, 2002 (Exh.D7) and mutation No.495 (Exh.D1) which was
attested on 9th of June, 2003. This application was allowed and
consequently the petitioner was impleaded as defendant No.2 in the suit.

3. Defendant No.1, Abdul Aziz in his written statement denied the

claim of the plaintiff with the assertion that he had not made any demand
of pre-emption in accordance with the law. On the other hand, present
petitioner also contested the claim of the plaintiff on the ground that he
had not made any Talb in respect of the sale made in his favour. The
divergent stances of the parties, led the Trial Court to frame issues and
invite evidence thereon. Accordingly, the plaintiff in support of his
claim produced oral as well as documentary evidence whereas defendant
No.1, Abdul Aziz neither produced any evidence nor cross-examined the
witnesses of the plaintiff. The suit of the plaintiff was, however,
contested by the present petitioner. He also tendered oral and
documentary evidence before the Trial Court.

4. One of the material questions to be determined in this case

was whether the plaintiff had fulfilled the requisite Talbs under the law.
This question was the subject matter of issue No.1 and onus to prove
thereof was upon the plaintiff. On consideration of the matter, the Trial
Court decided this issue against the plaintiff. The second important issue
was whether the plaintiff had got cause of action to file the suit. This
was issue No.3 and was decided against the plaintiff on the basis of
findings returned on issue No.1. It is to be noted that the Trial Court in
respect of issue No.3 has returned its findings in paragraph No.15 of its
judgment, which consists of three lines and it is full of contradictions.
The finding of the Trial Court is that “in view of my finding on issue
No.1, plaintiff has superior right of pre-emption being Shariek so he has
got cause of action to file the suit” whereas the conclusion is that “issue
is decided against the plaintiff”. It appears that the mention of the
 3
C.R. No.2422 of 2010
words “plaintiff has superior right of pre-emption being Shariek so he
has got cause of action to file the suit” was a clerical error as question
of superior right was subject matter of issue No.2, whereas, issue No.1
pertained to making of Talbs which was decided against the plaintiff.
This aspect of the matter was neither considered nor corrected by the
Appellate Court nor did it give its own findings on issue No.3. This
omission is one of the reasons which pursuaded me to examine this case
under Section 115(1) CPC. The other material issue was issue No.7-A to
the effect that whether the present petitioner (defendant No.2 in the suit)
was bonafide purchaser of the suit land. The Trial Court in its findings
declared that the defendant No.2 was not bonafide purchaser. The
findings returned by the Trial Court on other issues are not relevant and
thus, the same were not brought under discussion here. It is, however,
suffice to say that on the basis of findings on issue No.1 , 3 & 7-A, the
suit was dismissed by the Trial Court vide judgment and decree dated
12th of April, 2007.

5. The plaintiff thereupon questioning the findings in respect

of issue No.1 preferred an appeal before the Additional District Judge,
Bhakkar whereas defendant No.2 also preferred a separate appeal and
thereby challenged findings only in respect of issue No.7-A. Both the
appeals were consolidated. During appeal defendant No.1, Abdul Aziz
appeared before the Appellate Court and made statement on oath
admitting the claim of the plaintiff and stated that he had no objection on
acceptance of appeal. On the basis of this statement appeal of the
plaintiff was allowed whereas appeal of the present petitioner was
dismissed with the observation that he was not bonafide purchaser. Two
decrees were issued through consolidated judgment dated 27th of March,
2010. So, this revision.

6. The plaintiff-pre-emptor, at the outset, has raised a

preliminary objection with regard to locus standi of the present
petitioner. It is argued that upon dismissal of his appeal, which was
limited only to the point that findings returned by the Trial Court on
issue No.7-A was illegal, and particularly when defendant No.1 had
 4
C.R. No.2422 of 2010
conceded the claim of the plaintiff, the present petitioner cannot be
allowed to maintain the instant revision. I will address this objection in
the later part of this judgment. However, before proceeding further, it
would be pertinent to state here that this case appeared to me the one
where the plaintiff and defendant No.1 had joined their hands so as to
defeat the rights of the present petitioner and thus, I thought it prudent to
examine the decrees of the Courts below under Section 115(1) CPC and
accordingly asked learned counsel for the plaintiff -pre-emptor to show
as to how the requirements of Talbs were made and proved and also how
the plaintiff had got cause of action to file the suit. Learned counsel for
the plaintiff-pre-emptor accordingly took me to the contents of the
pleadings and the evidence led before the Trial Court and also the
statement of defendant No.1 whereby he conceded the claim of the
plaintiff. The pith and substance of his argument was that since
defendant No.1 had conceded the claim of the plaintiff, there was no
need of any evidence to prove the admitted facts, and secondly, minor
discrepancies in the statements of the witnesses cannot be made basis to
non-suit the plaintiff-pre-emptor.

7. In terms of civil law the expression “cause of action” for

the purposes of suit for possession under the Punjab Pre-emption Act,
1991 means essential facts constituting the right upon the making of
demands of pre-emption by the pre-emptor in the prescribed manner and
its refusal by the vendee. In fact it refers to the facts upon which the pre-
emptor asks the Court to arrive at a conclusion in his fravour. It was
thus, vital for the plaintiff to prove the making of Talbs (demands of pre-
emption) in accordance with the law so as to establish that he had got the
cause to institute the suit and to claim decree for possession of suit land
through pre-emption. In the present case two transactions of sale were
involved. Through the first transaction the land stood transferred in the
name of defendant No.1 Abdul Aziz vide mutation No.492 dated 21 st of
September, 2002 (Exh.P5), whereas the second transaction pertained to
oral sale allegedly made on 22nd of October, 2002 in favour of present
petitioner. Leaving aside the sale made in favour of present petitioner, it
 5
C.R. No.2422 of 2010
was to be, firstly, seen as to whether the pre-emptor-plaintiff had made
Talb-i-muwathibat in accordance with the law in respect of sale
incorporated in mutation No.492 dated 21st of September, 2002
(Exh.P5). The plaintiff pleaded that qua this sale, no public notice was
issued and thus he got knowledge thereof on 11th of December, 2002 at
12.00 noon through Ghulam Essa in the presence of Muhammad Husain;
and, that upon getting information a declaration to exercise right of pre-
emption was immediately made which was followed by the notice of
Talb-i-Ishhad dated 12th of December, 2002. This plea cast a duty upon
the plaintiff to prove two facts. Firstly, that in respect of mutation
No.492 no public notice in terms of section 31 of the Punjab Pre-
emption Act, 1991 was given; and secondly, the date, time and place
where Talb-i-muwathibat was made. According to section 31 of the
Punjab Pre-emption Act, 1991 the Officer attesting the mutation of sale
shall, within two weeks of the attestation, give public notice in respect of
such attestation and this notice shall be deemed to have been sufficiently
given if it is displayed on the main entrance of a mosque and on any
other public place of the village or place where the property is situated.
Presumption of regularity, though rebuttable, is attached to all official
acts. The plaintiff nevertheless did not make any effort to rebut the said
presumption as neither the witnesses who appeared on behalf of the
plaintiff stated any word about non-compliance of the provision of
Section 31 of the Punjab Pre-emption Act, 1991 nor any document was
tendered in evidence to rebut the above stated presumption. It would,
therefore, be presumed that the plaintiff-pre-emptor had due knowledge
of the attestation of sale mutation No.492 within two weeks from the
issuance of public notice under section 31 of the Punjab Pre-emption
Act, 1991. It is an admitted fact that the mutation No.492 was attested
on 21st of September, 2002, whereas, the alleged declaration to exercise
right of pre-emption was made on 11th of December, 2002. This
declaration cannot be construed a valid jumping demand of pre-emption
within the contemplation of Explanation-I to sub-section (1) of section
13 of the Punjab Pre-emption Act, 1991 which provides that Talb-i-
muwathibat means immediate demand made by a pre-emptor, in
 6
C.R. No.2422 of 2010
the sitting or meeting (Majlis) in which he has come to know of the sale
declaring his intention to exercise the right of pre-emption.

8. There is another good ground to hold that the plaintiff had

not made Talb-i-muwathibat in accordance with the law. The plaintiff in
paragraph No.3 of the plaint maintained that he got knowledge of the
sale of the suit land on 11th of December, 2002. On the other hand when
he appeared as his own witness before the Trial Court on 9th of April,
2005 as PW-1 he stated during the course of examination-in-chief that
he got knowledge of the sale of suit land 2 years, 3 months and 18 days
ago. According to this statement the date of getting knowledge of the
sale was 23rd of December, 2002, which did not tally with the one
mentioned in paragraph No.3 of the plaint. Learned counsel for the
plaintiff made an attempt to overcome this contradiction by making
reference to different precedents and stated that this being a
mathematical or calculation error could not be made basis to hold that
Talb-i-muwathibat was not made in accordance with the law. This
argument is not convincing. The right of pre-emption being strictissimi
juris requires strict proof of making Talbs. Any contradiction between
the contents of plaint and statement of witnesses eclipses the right of
pre-emption. The above contradiction cannot be ignored and it leads to
the conclusion that Talb-i-muwathibat was not made in the prescribed
manner.
9. There is yet another aspect of the matter with respect to
making of Talb-i-muwathibat. One of the members of the alleged Majlis,
that is to say, witness of Talb-i-muwathibat was Muhammad Hussain.
He appeared before the Trial Court as PW-3. This witness in his
examination-in-chief stated as follows:-

‫دمیعآایوتعی ٰسیےنرفوتخارایضاکاتبای وتاوہنںےناہکہکآجزنیماکہتپالچےہلکآانشفعدارئیرں‬

‫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
 7
C.R. No.2422 of 2010
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)
 8
C.R. No.2422 of 2010
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.

11. Upon noticing that the plaintiff had misrepresented the

foundational facts constituting cause of action, I asked learned counsel
for the plaintiff as to how in the attending circumstances of the case a
decree as prayed for in the plaint could be issued. He replied that since
defendant No.1 at the stage of appeal had accepted the right of the
plaintiff, there was no need to prove making of demands of pre-emption
(Talbs); and that, instant revision was not competent as the Appellate
Court had issued decree with the consent of the plaintiff’s vendee (that
is, defendant No.1). This reply sans merit. It has been proved that upon
failure of the plaintiff to make demands as per the law, his right of pre-
emption had been extinguished. Law has not granted any power to any
Court to condone any deficiency or deviation in the matter of demands
of pre-emption or to show any lexity in the matter.2The question then is
whether in these circumstances the right of the plaintiff-pre-emptor
could have been revived at the appellate stage by the conceding
statement of defendant No.1. The answer to this question is in the
negative for that firstly, the making of demands for pre-emption in a
particular prescribed manner gives occasion for and forms the
foundational facts constituting cause of action in a pre-emption suit
which has no relation whatever to the defence that may be set up by the
vendee; secondly, since the first demand of pre-emption (Talb-i-
muwathibat) was not made before defendant No.1, he could not make
any statement about the veracity of the facts related to it, and even if he
did make such a statement, its status would at best be of hearsay and the
issuance of a decree on the basis of such evidence would be against

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)
 9
C.R. No.2422 of 2010
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.

12. I cannot proceed further without observing here that the

absence of defendant No.1 during trial and subsequently his admission
before the Appellate Court was understandable as his no interest was at
stake for that he had already sold the land to the present petitioner; and
that, in fact the statement of defendant No.1 made before the Appellate
Court was sufficient to draw the conclusion that he had colluded with
the plaintiff so as to defeat the right of the present petitioner. Since the
plaintiff by manipulating defendant No.1 frustrated the legal rights of the
petitioner-defendant No.2, he cannot be permitted to take advantage of
his wrong or manipulation. This is exactly the spirit of legal maxim,
nullus commodum capere potest de injuria sua proprio.

1
Habib Khan v. Mst. Taj Bibi and others (1973 SCMR 227)
 10
C.R. No.2422 of 2010
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
 11
C.R. No.2422 of 2010
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.

14. In the result this revision is allowed. The judgment and

decrees dated 27th of March, 2010 of the Addl. District Judge, Bhakkar,
is set aside and consequently the judgment and decree dated 12th of
April, 2007 of the Trial Court dismissing the suit of the plaintiff is
restored with the clarification/modification that the plaintiff had no
cause of action to bring the suit and also the present petitioner/
defendant No.2 was a bonafide purchaser of the suit land. No order as to
costs.

(SHAHID WAHEED)
JUDGE

Approved for Reporting

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)