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P L D 2021 Lahore 52
Before Shahid Waheed, J
MUHAMMAD BAKHSH---Petitioner
Versus
FAIZ MUHAMMAD and others---Respondents
Civil Revision No. 2422
of 2010, heard on 5th October, 2020.
Punjab Pre-emption
Act (IX of 1991)---
----Ss. 13 &
5---Demand of pre-emption, mandatory nature of---Talb-i-Muwathibt
and
Talb-i-Ishhad, strict proof of performance---Foundational facts on which plaint in
a suit for pre-emption was
to be based---Right of pre-emption as strictissimi juris---
Deficiencies in
proof of making of Talbs to be fatal for suit for
pre-emption---
Scope---Expression "cause of action" for purposes of
suit for possession under
Punjab Pre-emption Act, 1991 meant essential facts
constituting right upon making
of demands of pre-emption by pre-emptor in
prescribed manner and its refusal by
vendee---Said expression referred to facts
upon which pre-emptor asked Court to
arrive at a conclusion in his/her
favour---Vital for plaintiff to prove the making of
Talbs (demands of
pre-emption) in accordance with law so as to establish that he
had got cause to
institute suit and to claim decree for possession of suit land
through
pre-emption---Right of pre-emption being strictissimi juris required strict
proof of making of Talbs and any contradiction between contents of plaints and
statement of witnesses eclipsed right
of pre-emption---Where there existed
contradiction between date of knowledge of sale of land mentioned in plaint and
that mentioned by witnesses, then it had to be concluded that Talb-i-Muwathibat
was not made in prescribed manner---Where plaintiff did not make immediate
declaration
to exercise his/her right to pre-emption upon getting information of sale
of
land but instead deferred it till next day, then same was fatal to claim of
making
of Talb-i-Muwathibat---Onus was on plaintiff to prove that statutory
formalities
regarding making of Talb-i-Ishhad were strictly observed and
plaintiff had to
produce evidence, including postman, to prove personal service
of notice upon
vendee (or vendee's refusal to accept same) however, where such
requirement was
not fulfilled, then conclusion to be drawn was that
foundational facts stated in
plaint were false---Law did not grant any power to
any Court to condone any
deficiency or deviation in matter of demands of pre-emption
or to show any laxity
in said matter---Making of demands of pre-emption in
prescribed manner gave
occasion for, and formed foundational facts constituting
a cause of action in a
particular pre-emption suit, which had no relation
whatever to any defence that may
be set up by a vendee and therefore mere
conceding statement of defendant would
not validate such deficiencies.
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; Khan Afsar v. Afsar
Khan and others 2015 SCMR 311; Muhammad Akram v. Mst. Zainab Bibi 2007

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SCMR
1086; Habib Khan v. Mst. Taj Bibi and others 1973 SCMR 227; Din
Muhammad v.
Abrar Hussain and another PLD 2009 SC 930 and Ghulam Sarwar v.
Rukhsana Kausar
and others PLJ 2012 Lahore 442 rel.
(b) Maxim---
----"Nullus
commodum capere potest de injuria sua propria": A party could not be
permitted
to take advantage of his/her wrong or manipulation.
Ghulam Hussain Malik for Petitioner.
Muhammad Hanif Niazi for Respondent No.1.
Muhammad Shakil Ghauri for Respondent No.2.
Date of hearing: 5th October, 2020.
JUDGMENT
SHAHID WAHEED, J.---The subsequent vendee has brought this
application
under Section 115, C.P.C. 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 present
petitioner filed an application under Order I, Rule 10, C.P.C. 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

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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 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), C.P.C. The other material issue was issue No.7-A to
the effect
that whether the present petitioner (defendant No.2 in the suit) was bona
fide
purchaser of the suit land. The Trial Court in its findings declared that the
defendant No.2 was not bona fide 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 issues
Nos. 1, 3 and 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
bona fide 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
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), C.P.C. and accordingly asked learned counsel for the plaintiff
-pre-emptor

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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
favour. 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 21st 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 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

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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 subsection (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 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:-
The above referred
statement indicates that the plaintiff did not make immediate
declaration to
exercise his right of pre-emption upon getting 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 subsection (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

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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,
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.2 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 laxity in the matter.3 The
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 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

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action was false, the

suit could not succeed even as regards defendant No.1
admitting the plaintiff's
claim4. 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), C.P.C. 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.
13. Now I address issue No.7-A viz, whether the
petitioner was the bona fide
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
bona fide 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 bona fide purchaser and consequently findings of

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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 the
suit following the
principle settled in Din Muhammad's case5 and
Ghulam Sarwar's case6 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 bona
fide purchaser of the suit land. No order as to costs.
KMZ/M-138/L Order
accordingly.

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