Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Bashir Ahmad VS Respondent: Iqbal Ahmad
Court Name: Lahore High Court Judge(s): Ahmad Nadeem Arshad Title: Bashir Ahmad vs Iqbal Ahmad Case No.: Civil Revision No. 1250-D-2011 Date of Judgment:2021-06-21 Reported As: 2021 LHC 4185 Result: N/A
JUDGMENT
JUDGMENT AHMAD NADEEM ARSHAD, J. Through this civil revision, the petitioner has questioned the validity of the judgment and decree, dated 19.10.201 1, passed by learned Additional District Judge, Muzaf fargarh, whereby he, while accepting the appeal, preferred by respondent/plaintif f, set aside the judgment and decree, dated 13.07.2009, passed by learned Civil Judge, Muzaf fargarh and decreed the suit instituted by the respondent/plaintif f for possession through pre-emption. 2. Brief facts, giving rise to the filing of this revision petition, are that the respondent/plaintif f (hereinafter to be called as "the respondent") instituted a suit for possession on the basis of pre-emption inter alia with the averments that petitioner/defendant (hereinafter to be called as "the petitioner") secretly purchased land measuring 05 kanals and 12 marlas situated in Mauza Baraham Wali, Tehsil & District Muzaf fargarh (herein after to be referred as "the suit property") through mutation No. 1247 dated 29.07.2001 for a consideration of Rs.130,000/- but in order to defeat the pre-emptive right of the respondent/plaintif f, an excessive amount of Rs.300,000/- was shown as sale price; that Hafiz Muhammad Afzal told him about the alleged sale on 22.11.2001 at 09.00 a.m. when he along with Hafiz Imtiaz Ahmad, Muhammad Nawab and Sajid Hussain was sitting at his "Dera" situated at Braham Wali, Tehsil and District Muzaf fargarh and upon comi ng to know about the alleged sale, he announced to exercise his right of pre-emption and thereafter he sent a notice of Talb-i-Ishhad through registered post with acknowledgement due to the petitioner on 23.11.2001; that being Shafi Sharik , Shafi Khalit and Shafi Jar he had preferential right to pre- empt the sale of suit property in favour of petitioner/defendant and that since he fulfilled all the requirements of talbs he prayed for decree of his suit. The petitioner resisted the suit by filing contesting written statement with the plea that the respondent did not perform the talbs according to law and sharia and prayed for dismissal of the suit. The learned trial Court after framing requisite Issues and recording evidence of the parties dismissed the suit vide judgment and decree dated 13.07.2009. The respondent being aggrieved, assailed that judgment and decree by
---
## Page 2
way of preferring an appeal which was allowed by the learned appellate court vide impugned judgment and decree, dated 19.10.201 1 and decreed the suit instituted by the respondent. Being dissatisfied with the judgment of the appellate court, the petitioner has filed the instant revision petition. 3. Learned counsel for the petitioner contends that both the judgments are at variance; that the respondent has failed to perform requisite talbs as per law; that delivery of notice of Talb-i-Ishhad was not proved by the respondent as he did not produce the postman to prove the said fact but despite that the learned appellant Court has erroneously decreed the suit; that the respondent himself participated in the sale proceed and the sale consideration was delivered to the vendo r through respondent, therefore, he was estopped to file pre-emption suit because while participating in the sale proceed, he waived his right of pre-emption, if any; that the judgment and decree passed by the learned appellate Court is against law and fact, without jurisdiction, based on surmises and conjectures, hence, liable to be set aside. In support of his contentions, learned counsel has relied upon "BASHIR AHMAD versus GHULAM RASOOL"( 2011 SCMR 762) and "RAZIA BEGUM versus ABDUL AZIZ" (2006 CLC 772). 4. Conversely , learned counsel for the respondent, while defending the impugned judgment and decree passed by the learned appellate Court, submits that the learned trial court decided all the Issues in favour of the respondent except issue No.2, which was later on decided by the appellate court in favour of him; that Issue No.2 was decided by the learned trial court only to the extent of Talb-i-Ishhad which finding being result of mis-reading and non- reading of evidence was rightly corrected by the learned appellate court; that the respondent had to prove only that he sent the notice of Talb-i-Ishhad at correct address and it was not his duty as to whether it was received to the addressee or not; that since he sent the notice of Talb-i-Ishhad through registered post with acknowledgement due thus complied with the requirement of law and while relying upon "LIAQA T ALI and others versus SAFDAR KHAN" (2020 SCMR 863) and "Mst. KALSOOM BEGUM Versus RIZW AN SHAH and others" (2020 SCMR 2029 ) argued that in the light of dictum laid down by the august Supreme Court of Pakistan there is no need to produce the postman as a witness in order to establish the delivery of notice of Talb-i-Ishhad and prayed for dismissal of the revision petition. 5. I have heard learned counsel for the parties and perused the available record with their able assistance in addition to going through the case-law referred by the learned counsel for the parties. 6. Perusal of record reveals that while deciding issue No.2, the learned trial Court dismissed the suit of the respondent mainly on two grounds viz. firstly , the respondent failed to bring on record the original notice of Talb-i- Ishhad , as only photocopy of notice was produced as Exh.P .1, without seeking permission to produce copy of notice as secondary evidence. Secondly , the respondent failed to examine the postman, who delivered the notice of Talb-i-Ishhad and also failed to produce the envelope with registered cover/acknowledgment and concluded that the respondent failed to establish requisit e Talb-i-Ishhad in accordance with the law. In answer to the first objection of the trial Court, the learned Appellate Court observed that the respondent moved an application for permission to produce secondary evidence which was allowed by the trial Court, as a result he produced the copy of notice Talb- i-Ishhad as secondary evidence. It is admitted position that the respondent moved an application for production of secondary evidence and after taking its reply , the learned trial court allowed that application vide order dated 10.01.2005. In this backgroun d, the learned appellant court rightly concluded that the finding of the trial court to the extent of the first objection was not sustainable. 7. Further , while dealing with the second objection, the appellate court concluded that the address of the petitioner in the registered envelope AD was the same as mentioned in the plaint. To fortify his findings, the appellate court referred to the statement of the petitioner , wherein he admitted that had a letter been sent at the address mentioned in the plaint, it would have been received/delivered. To conclude, subm its that it has been observed in 2006 SCMR 1410 and 2008 SCMR 1366 that: "Pre-emptor was required to send notice through registered post acknowledgement due wherever postal facility was available. Pre-emptor was obliged to prove that the notice had reached the addressee, requirement of section
---
## Page 3
13(3) of Punjab Pre-emption Act, 1991 was to prove the sending/dispatch of notice was presumed to have been delivered to the vendees by virtue of Section 26 of General Clauses Act, 1897." and that in the light of dictum laid down by the august Supreme Court of Pakistan, the trial court wrongly observed that the plaintif f had to prove that the notice was served upon the defendant. 8. I have gone through the esteemed judgments of the august Supreme Court "Hayat Muhammad and others versus Mazhar Hussain" (2006 SCMR 1410 ) and "Naseeb Khan versus Divisional Superintendent, Pakistan Railways, Lahore and others" (2008 SCMR 1369 ). But the para reproduced, as referred above by the learned appellate court, in the impugned judgment, is not available there and also quoted wrong provision of law "section 26 of the General Clauses Act, 1897". "The General Clauses Act, 1897" was adopted in Pakistan, after its creation and amended time to time. For Provinces, the West Pakistan Assembly passed the Act ibid after certain change s and amendments which was called as "West Pakistan General Clause s Act, 1956". After the dissolution of Units, the Provinces adopted that Act through Adaptation Laws. "Meaning of service by post" is defined under section 27 of the General Clauses Act, 1897 and in section 26 of the West Pakistan General Clauses Act, 1956 with same wording which is reproduced as under:- Meaning of service by post.- Where any [Provincial] Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the documents, and, unless the contrary is proved, to have been ef fected at the time at which the letter would be delivered in the ordinary course of post." The general law of "Service by post" would not be applicable in respect of pre-emption as the same was attended to by the specific law on the subject, whereof stipulates, "registered cover acknowledgment due" and not just dispatch by registered post. The august Supreme Court of Pakistan dealing with this proposition in a full bench judgment titled as "Khan Afsar versus Afsar Khan and others" ( 2015 SCMR 31 1) held as under:- "The general law as contained in section 26 (supra) of the Provincial General Clauses Act, 1956 would not be applicable. Section 13(3) of the N.W.F.P. Pre emption Act, 1987 stipula tes, "under registered cover acknowledgment due" (emphasis added) whereas the words "acknowledgment due" are not mentioned in section 26 of the General Clauses Act, 1956 applicable to the Province of Khyber Pakhtunkhwa." 9. The only question which boils down for determination by this Court is as to whether the requirement of Talb-i- Ishhad was fulfilled or not. Section 13(3) of Punjab Pre-emption Act, 1991 deals with the said requirement, which for convenience of reference is reproduced below:- "13. Demand for pre-emption. (1) ........ (2) ........ (3) Where a pre-emptor has made Talb-i-Muwathibat under subsection (2), 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 the right of pre-emption. Provides that in areas where owing to lack of post office facilities it is not possible for the pre-emptor to give registered notice, he may make T alb-i-Ishhad in the presence of two truthful witnesses. According to the above, notice is to be sent under registered cover along with acknowledgment due by the prospective pre-emptor to confirm his intention to exercise the right of pre-emption. The Hon'ble Supreme Court of Pakistan in judgment titled as "Basharat Ali Khan vs. Muhammad Akbar" (2017 SCMR 309), has clinched the issue, under discussion, in the following manner:- Section 13(2) of the Act, 1991 specifies unequivocally that Talb-i-Ishhad shall be made by (i) written notice (ii) attested by two truthful witnesses (iii) under registered cover (iv) acknowledgment due. The only situation in which the Act, 1991 does not require the sending of notice by registered cover acknow ledgment due is when the post
---
## Page 4
office facility is not available to a pre-emp tor [S.13(3) proviso of the Act, 1991]. Secondly , according to case law, the prescribed condition of service of notice by registered cover acknowledgment due may be relaxed where the defendant/vendee admits that he has received notice of Talb-i-Ishhad. In all other cases, service of notice of Talb-i- Ishhad upon a vendee must be established by the proof of each of the afore-noted four prescribed elements of the notice of such Talb. These prescribed elements of the service of a Talb-i-Ishhad notice are specific statutory requirements for the proof of service of notice of such Talb which demand has been construed to be a mandatory obligation of a preemptor -plaintiff. This means that if any of the aforementioned four elements of the prescribed mode of service of Talb-i-Ishhad is not proved by a plaintiff, he dishonors his mandatory obligation, and consequently , his pre-emption suit must fail. It has further been held as follows:- The requirement of Talbs as prescribed in the Act, 1991 enforces the substantive principles of Islamic law on the subject of pre-emption. Specified features of the Talbs envisaged by the Act, 1991, as noticed above, have been held in the precedents referred above to be mandatory because of their statutory intent and as requirements of Islamic Law codified by the Act, 1991. The mode and measures for service of notice of Talb-i-Ishhad prescribed in Section 13(3) of the Act 1991 extend protection to vendees of immovable property against claims of pre-emption assailing the purchases made by such vendees. To our minds, the various steps prescribed in section 13(3) in the Act, 1991 for the performance of Talbs implement the public policy of the law to exclude delay and vexatious claims for the benefit of defendant/vendees as a class in pre-emption suits". 10. The respondent narrated in the plaint that he sent the notice of Talb-i-Ishhad to the petitioner through registered envelope and acknowledgment due, while the petitioner denied this fact in his written statement. The same is the position in the oral evidence, the PWs stated that notice was sent through registered post and DW denied this fact. The defendant as DW.1 categorically stated that he did not receive any notice. The receipt, issued by the post office, was tendered in evidence as Exh.P .2. In this receipt, the word of A.D (Acknowledgment Due) was not mentioned which was normally written where Acknowledgment Due was attached with the envelope. The Acknowledgment Due was not produced in the evidence and in this regard no explanation was given. The registry clerk, who issued the receipt, the postman who allegedly delivered the registered post, and the scriber of the notice were not produced in the evidence. 11. In order to substantiate his contentions, the respondent examined himself as PW-1, Muhammad Afzal informer/witness of notice of Talb-i-Ishhad as PW-2 and Hafiz Imtiaz Hussain as PW-3 witness of Talb-i-Ishhad . In documentary evidence, the respondent produced copy of the notice of Talb-i-Ishhad as Exh.P-1, receipt of the Post office as Exh.P-2, copy of mutation No.1247 as Exh.P-3, copy of the record of right for the year 1998-99 as Exh.P- 4, copy of khasra girdawri from crop Rabi 2001 to Kharif 2001 as Exh.P-5, copy of record of right for the year 2002- 03 as Exh.P-6, copy of Khasra girdawri from crop Kharif 2006 to Rabi 2007 as Exh.P-7. The respondent failed to prove the delivery of notice of Talb-i-Ishhad through his oral as well as documentar y evidence. In rebuttal, the petitioner recorded his statement as DW-1 whereby he categorically denied that he ever received notice of Talb-i- Ishhad . 12. The receipt of the registered envelope has been produced in evidence as Exh.P-2 but a perusal of said receipt (Exh.P-2) reveals that the same is without acknowledgment due receipt. The receipt of the registered post (Exh.P- 2) was produced by the respondent to prove dispatching of notice of Talb-i-Ishhad but astonishingly , the acknowledgment due card, which was to be stapled with the registered envelope, was not exhibited in the evidence by the respondent, which shows that compliance of sending of notice along with acknowledgment due card upon the vendees' address was not fulfilled. According to the version of the respondent, the postal envelope was sent to the petitioner , then the same should have been accompanied with an "acknowledgment due" card, and consequently this "acknowledgment due" card, returned served/unserved, but the same was not tendered in the evidence. The receipt of the registered cover envelope (Exh.P .2) also shows that no attachment of the card "acknowledgment due" note was given on the receipt. 13. Learned counsel for the respondent, while relying upon the citation supra, emphasized that there is no need to produce the postman as a witness to establish the delivery of notice of Talb-i-Ishhad . To analyze his contention, it is
---
## Page 5
better to see the findings of the august Supreme Court of Pakistan. Both the citations referred by the respondent relate to the Khyber Pakhtunkhwa Pre-emption Act, 1987 (X of 1987) while the case under discussion has emanated from a suit filed under the Punjab Pre-emption Act, 1991. Only slight difference is present in the language of section 13(2) but the basic requirement regarding sending notice of Talb-i-Ishhad through registered cover acknowledgment due is same of both enactments. The august Supreme Court of Pakistan in Mst. Kalsoom Begum' s case reproduced its finding as given in Liaqat Ali's case, so to avoid repetition only the findings of the august Supreme Court of Pakistan in Mst. Kalsoom Begum' s case are reproduced as under for better understanding: - "Absence of the postman from witness-box who had actually delivered notices (Ex.PW -3/3-5) along with relevant receipts (Ex.PW -1/1-3) does not violate the law declared by this Court requiring official attendance to establish dispatch of the notice of Talb-i-Ishhad as Muhammad Yousaf, Clerk GPO Mansehra appeared as PW-1 to bring on record the relevant details and thereby successfully established dispatch of the required notice to the respondents. It has been held in the case of Liaqat Ali and others v. Safdar Khan (2020 SCMR 863) that "we are also not impressed by the argument that the postman who had delivered the notice ought to have appeared in person instead of Fazal Majeed, Registration Clerk GPO and Zahid Ahmed, Postman, who respectively appeared as PW-2 and PW-3. Plaintiff by producing these official witnesses along with relevant receipts and acknowledgment due aptly discharged the onus to establish dispatch of the notice. There is perpetual continuity in State business, sustained by officials in succession." The appellant discharged the onus to prove dispatch of notice by producing official witnesses from the concerned post office as the mode adopted by her is in accordance with the provisions of section 26 of the W est Pakistan General Clauses Act, (Act VI), 1956, reproduced below: "26. Meaning of service by post. --- Where any Provincial Act, authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other express is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the documents, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." It is clear from above-referred judgments that the august Supreme Court of Pakistan dispensed with the production of postman and declared that it is not violative of the law, if the registration clerk of the concerned G.P.O., who issued the receipt along with the relevant record, appeared before the Court and brought on record the receipt and acknowledgment due. But in the case under discussion, the respondent failed to produce the Registry Clerk of the concerned Post Office and acknowledgment due card in his evidence, therefore, failed to perform Talb-i-Ishhad in accordance with law and could not take benefit of the judgments (referred supra). 14. The respondent should have confirmed through notice of Talb-i-Ishhad his intention to exercise the right of pre- emption. For this, he should have proved that notice was sent to the vendee/petitioner under registered cover acknowledgment due. To substantiate his contention, the respondent should have summoned the concerned postman who delivered the notice to the addressee or returned the original envelope containing that notice with acknowledgment due to the sender in case of non-service. It is settled principle of law that one should prove his initial case through his affirmative evidence. The august Supreme Court of Pakistan in its judgment reported as "MUHAMMAD BASHIR and others Versus ABBAS ALI SHAH" (2007 SCMR 1105) while highlighting the circumstances where evidence of the postman is necessary inter alia observed as under:- "11. The requirement of, "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgment due". This signifies that the intention of law is not merely a formal notice on the part of the pre- emptor conveying his intention to pre-emp t but a notice served on the addressee to apprise him about his intention to pre-empt. To say that mere "sending of notice" is enough would make the expression "acknowledgment due" redundant. The service of the addressee, as prescribed in law, therefore, is imperative. If the acknowledgment card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless it is rebutted. The expression "sending notice" came up for consideration in Thammiah, b. v. Election Officer (1980) 1 Kant L.J. 19 and the Court held that it means, "that it should reach the hands of the person to whom it has been given and the giving is complete when it has been offered to a person but not accepted by it".
---
## Page 6
12. While there is no cavil with the proposition that in terms of Article 129 of the Qanun-e-Shahadat Order read with section 27 of the General Clauses Act, a presumption of service does arise if a notice sent through registered covered acknowledgment due is received back with the endorsement of "refused" by the postal authorities but if the addressee appears in Court and makes a statement on oath disowning receipt of the notice, the presumption under the afore-referred provision shall stand rebutted and the onus is on the party which is relying on such an endorsement to prove the same by producing the postman who made the endorsement. 13. In Tekchand Devidas v. Gulab Chand Chandan Mal (AIR 1957 Madhya Bhar at 151) Gwalior Bench, reiterating an earlier view in Madh BLJ 1955 HCR 702 , it was held that:- "Where a notice is sent by registered post and it is alleged that it has been returned with the postal endorsement that the addressee refused to accept it, the endorsement has to be proved by calling in evidence the postman who tendered the registered letter to the addressee. Unless it is so proved the endorsement is not admissible in evidence in proof of the allegation." 14. In "Anil Kumar v. Nanak Chandra Derma " (AIR 1990 SC 1215) , the learned Court was of the view that endorsement "refused" was sufficient to raise the presumption of service. The Court observed that in such cases, there could be no hard and fast rule; that in certain cases the statement of an addressee could be sufficient to rebut the presumption but if the testimony of the addressee is inherently unreliable, the position may be different and the question in each case is always whether there was sufficient evidence to discharge the initial burden. The Court found that in the said particular case since the addressee was having business premises at Ghaziabad, the plea taken by him that he remained away from the said place for a long period (from 19-12-1984 to 1-1-1985) was not believable and therefore, the concurrent findings raising presumption of service were unexceptionable. 15. In "Piridno v. Khurshid Begum" (1989 SCMR 880), the question as to service of notice under section 30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958 issued to the appellant who was undergoing imprisonment at the relevant time was rightly held by the two Courts below on the basis of mere endorsement of "refusal" thereon made by the postal authorities came up for consideration. The Court held that where addressee of notice appeared in the Court and denied service of notice, legal presumption of service was repudiated and the sender of the notice would be obliged to prove the genuineness of signatures of the addressee on the endorsement of refusal by its comparison with admitted one or by examination of the postman to prove that the notice was offered to the addressee and the same was refused. Moreso, when the addressee was in jail and the endorsement did not contain any verification from the jail authorities that the letter was offered to a prisoner…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.