PLJ 2003 Lahore 677
[Rawalpindi Bench
Rawalpindi]
Present:
MAULVI ANWAR-UL-HAQ, J. Mst. RAZIA
BEGUM-Petitioner
versus
FAZAL
HUSSAIN-Respondent C.R. No. 606 of 1994, heard on 29.10.2002. (i) Punjab Pre-emption Act,
1991 (IX of 1991)--
—-S. 35(2)--Suit for
pre-emption filed through general attorney i.e. husband of plaintiff lady--Competency~In the context of ownership by plaintiff lady of land in
question, in said revenue estate and authorising
attorney to
file suits with power to make requisite deposits includes power to file pre-emption suit relateable to ownership of land in question-Preemption suit was,
thus, validly filed by attorney of plaintiff lady.
[P. 679] A
(ii) Punjab Pre-emption
Act, 1991 (IX of 1991)--
-—Ss.
35(2) & 13-Performance of talbs by
plaintiff-Suit was filed before
promulgation of Punjab Pre-emption Act 1991, when limitation for filing
pre-emption suit was one yesuc-Talb-i-Muwathibat and talb-i-Ishhad,
however, stand proved by material on record-Suit filed about five
months after sale was thus, within time. [P. 680] B
promulgation of Punjab Pre-emption Act 1991, when limitation for filing
pre-emption suit was one yesuc-Talb-i-Muwathibat and talb-i-Ishhad,
however, stand proved by material on record-Suit filed about five
months after sale was thus, within time. [P. 680] B
(iii) Punjab
Pre-emption Act, 1991 (IX of 1991)--
—-S. 35(2)-Civil Procedure Code (V of 1908) S. 115-Appellate Court
dismissed plaintiffs suit on ground of limitation and non-performance of
talabs—Suit for pre-emption having been filed about five months after
sale when Punjab Pre-emption Act 1991 was not promulgated, was well
within time—Material record fully established performance of talb-i-
muwathibat and talb-i-Ishhad--Judgment and decree of Trial Court
suiting plaintiff was set aside that of Trial Court decreeing plaintiffs suit
was restored. [P. 680] C
dismissed plaintiffs suit on ground of limitation and non-performance of
talabs—Suit for pre-emption having been filed about five months after
sale when Punjab Pre-emption Act 1991 was not promulgated, was well
within time—Material record fully established performance of talb-i-
muwathibat and talb-i-Ishhad--Judgment and decree of Trial Court
suiting plaintiff was set aside that of Trial Court decreeing plaintiffs suit
was restored. [P. 680] C
1995 CLC 896 and PLD 1994 SC 1 ref.
Sardar Tariq Anees, Advocate for
Petitioner. Malik Qamar
Afzal, Advocate for Respondent. Date of hearing:
29.10.2002.
678 Lah. Mst. razia begum v. fazal hussain PLJ
(Maulvi Anwar-ul-Haq, J.)
judgment
Vide registered sale-deed dated 5.2.1989,
the respondent purchased the suit land. On 4.7.1989 Mst.
Razia Begum, petitioner filed a suit through her
attorney Muhammad Khan (also her husband), for possession of the suit land by pre-emption. It was stated in the plaint
that she was a co-sharer in the suit
land. It was further stated that on 6.2.1989 when knowledge of sale was
acquired, her general attorney made Talab-e-Muwathibat and thereafter in presence of the persons mentioned in para.
3 of the plaint a demand was made to the vendee
to accept the price and to transfer the land to her.
2. The respondent
filed a written statement on 9.10.1989 objecting that the suit is barred by time,
asserting that he had purchased the land for Rs. 25,000/- and also spent Rs. 3,000/- on the
registration. Other allegations were
denied. Following issues were framed by the learned trial Court: -
1.
Whether
the plaintiff has superior right of pre-emption? OPP.
2.
Whether the plaintiff
has made talbs according to
the
injunction of Islam? OPP.
injunction of Islam? OPP.
3.
Whether Muhammad Khan has no authority to file the present
suit? OPD.
suit? OPD.
4.
Whether the suit is barred by time? OPD.
5.
Whether
the ostensible sale price of Rs. 25,000/- was boria
fide
fixed and actually paid? OPD.
fixed and actually paid? OPD.
6.
If Issue No. 5 is not proved, what was the market value of
the
suit land at the time of its sale? OPPs.
suit land at the time of its sale? OPPs.
7.
Whether the defendant is entitled to incidental charges
if so, to
what extent? OPD.
what extent? OPD.
8.
Relief.
- Evidence of the
parties was recorded. Vide judgment and decree dated 31.10.1992 the suit was decreed subject to payment of
Rs. 25,000/- as price and Rs. 3,000/- as
incidental charges. Feeling aggrieved the respondent filed a first appeal which was heard by a learned
Additional District Judge, Chakwal who maintained the
findings on the said Issues Nos. 1, 5 to 7 but reversed the finding on Issues Nos. 2 to 4 and dismissed the suit vide
judgment and decree dated
26.9.1994.
3. Learned counsel
for the petitioner contends that the learned Additional District Judge has acted with material
irregularity in the exercise of his
jurisdiction while reversing the findings of the learned trial Court on the said Issues Nos. 2, 3 and 4. According to the
learned counsel all requirements of law applicable during the interregnum had
been fulfilled and that the document
of power-of-attorney was not properly read while holding that Muhammad Khan was not authorised
to file the suit. Further
2003 , Mst.
razia begum v. fazal hussain Lah. 679
(Maulvi Anwar-ul-Haq, J.)
contends that the learned Additional District
Judge has not pointed out as to which is
that prescribed period of limitation beyond which the suit was filed while
holding it to be barred by time. Learned counsel for the respondent, on the other hand, argues that the power-of-attorney
could not have been read to concern
any authority upon the attorney to file proceedings in respect of property
which had not vested in the donor at the time of execution of the power-of-attorney.
Further contends that no evidence of Talb-e-Muwathibat is there and there is a material
contradiction on the said point. According to the
learned counsel the limitation for the suit was 4 months and since it was filed beyond the said
period it was correctly held to be barred by time.
4. I have gone through the records. Now I have gone through the
copy of power-of-attorney placed on record by the learned counsel for the
petitioner from his brief and which copy learned counsel for the respondent
has agreed is the one which is subject matter of discussion of learned
Additional District Judge while dealing with the said Issue No. 3. Now I find
that the petitioner lady has stated that she owns properly both agricultural
and residential in several revenue estates of the Vehari and Ghakwal
including Her Chahar Dhab, where the suit land is located. Now all possible
authority has been conferred on the attorney who is the husband of the lady
including filing of suits and in connection with the said suits to perform all
relevant acts. Now I find that inter alia, the lady has authorised the attorney
to deposit" '^^/fjjj &M an^ t° withdraw the same as well. To my
copy of power-of-attorney placed on record by the learned counsel for the
petitioner from his brief and which copy learned counsel for the respondent
has agreed is the one which is subject matter of discussion of learned
Additional District Judge while dealing with the said Issue No. 3. Now I find
that the petitioner lady has stated that she owns properly both agricultural
and residential in several revenue estates of the Vehari and Ghakwal
including Her Chahar Dhab, where the suit land is located. Now all possible
authority has been conferred on the attorney who is the husband of the lady
including filing of suits and in connection with the said suits to perform all
relevant acts. Now I find that inter alia, the lady has authorised the attorney
to deposit" '^^/fjjj &M an^ t° withdraw the same as well. To my
mind, in the context of the ownership by the lady of the
said land in the said revenue estate and authorising the attorney to file suits with power to make the said deposits includes the power to file a
pre-emption suit relatable to the ownership
of the suit land and I am further of the opinion that even on the principle of "strict construction" the
said intention of the lady is glaring on the face of the said document
executed on 30.7.1988. I have already stated above
that it is on the basis of ownership of the said land mentioned in the power-of-attorney that the lady is claiming to be a
co-owner and consequently to be possessed with a superior right of
pre-emption as against the vendee which
finding in her favour has been upheld and otherwise
not questioned by the respondent. So far as the said contention of the learned counsel is concerned, he has relied upon on the
case ofHaji Mitha
Khan vs. Mst. Nafees Begum and 2
others (1995 CLC 896). However,
the facts in which the said judgment was delivered have nothing in common with
the facts of the present case. What
was held in the said case, was that the attorney would not be having the authority to deal
with the land i.e. to alienate it on the basis of a
power-of-attorney that was executed long before the donor came to acquire the said property. Now in the present case it
is not the act of alienation of the
donors property but the act in pursuance to her intention to acquire property by pre-emption that the power of the said attorney
is to be examined and this power clearly stands spelt out in the said document. I, therefore, reverse the findings of
the learned Additional District Judge on the said
Issue No. 3.
680 Lah. Mst. RAZIA BEGUM v. FAZAL
HUSSAIN PLJ
(Maulvi Anwar-ul-Haq, J.)
5.
As to said Issue No. 2
pertaining to Talabs, and Issue No. 4
pertaining to limitation are concerned, it is a matter of record that the sale
took place on 5.2.1989 and the suit was filed on 4.7.1989. I have already
referred to the pleadings of the petitioner above. I find them complete for the •
purposes of exercising the right of pre-emption under the Islamic Law. Now
the suit was decided by the learned trial Court on 31.10.1992 and during this
period not only the several pre-emption Ordinance were promulgated but
the Punjab Pre-emption Act, 1991 itself was promulgated. Now such suits
which were filed or were pending during the interregnum containing the
complete pleadings and also where the right claimed was recognised by the
Islamic Law were severed. It is true that the said saving clauses were
declared repugnant to the injunctions of Islam in the case of Haji Rana
Muhammad Shabbir Ahmad Khan vs. Government of Punjab Province,
Lahore (PLD 1994 SC 1) but the said judgment had to take effect from
31.12.1993 i.e. the date stated by the Shariat Appellate Bench of the
Supreme Court of Pakistan under Article 203-D of the Constitution. The suit
was filed and decided by the learned trial Court long before the said
judgment took effect, under the provisions existing while the suit was
pending and decided, the petitioner was required only to prove Talab-e-
Ishhad in the manner prescribed and that the period of limitation for the
said suit was one year. Now the learned Additional District Judge has held
that Talb-e-Muwathibat has not been proved. To my mind, upon a proper
reading Talb-e-Muwathibat also stands proved barring the discrepancy
between the statement of P.W. 3 that the Talab was made on 5.2.1989,
whereas in the plaint the date is mentioned as 6.2.1989. However, so far as
the Talab-e-Ishlwd is concerned, the same stands fully proved and has not
even been questioned by the learned Additional District Judge. I have not
been able to find any discrepancy in the statements of the P.Ws. in the
matter of Talab-e-Ishhad so as to enable me to hold them not to be truthful
within the meaning of Section 35(2) of the Punjab Pre-emption Act, 1991.
Similarly, the limitation for such suits is one year and the learned Additional
District Judge has certainly erred in a manner so as to affect his jurisdiction
while holding that the suit filed about five months after the'sale was barred
by time.
pertaining to limitation are concerned, it is a matter of record that the sale
took place on 5.2.1989 and the suit was filed on 4.7.1989. I have already
referred to the pleadings of the petitioner above. I find them complete for the •
purposes of exercising the right of pre-emption under the Islamic Law. Now
the suit was decided by the learned trial Court on 31.10.1992 and during this
period not only the several pre-emption Ordinance were promulgated but
the Punjab Pre-emption Act, 1991 itself was promulgated. Now such suits
which were filed or were pending during the interregnum containing the
complete pleadings and also where the right claimed was recognised by the
Islamic Law were severed. It is true that the said saving clauses were
declared repugnant to the injunctions of Islam in the case of Haji Rana
Muhammad Shabbir Ahmad Khan vs. Government of Punjab Province,
Lahore (PLD 1994 SC 1) but the said judgment had to take effect from
31.12.1993 i.e. the date stated by the Shariat Appellate Bench of the
Supreme Court of Pakistan under Article 203-D of the Constitution. The suit
was filed and decided by the learned trial Court long before the said
judgment took effect, under the provisions existing while the suit was
pending and decided, the petitioner was required only to prove Talab-e-
Ishhad in the manner prescribed and that the period of limitation for the
said suit was one year. Now the learned Additional District Judge has held
that Talb-e-Muwathibat has not been proved. To my mind, upon a proper
reading Talb-e-Muwathibat also stands proved barring the discrepancy
between the statement of P.W. 3 that the Talab was made on 5.2.1989,
whereas in the plaint the date is mentioned as 6.2.1989. However, so far as
the Talab-e-Ishlwd is concerned, the same stands fully proved and has not
even been questioned by the learned Additional District Judge. I have not
been able to find any discrepancy in the statements of the P.Ws. in the
matter of Talab-e-Ishhad so as to enable me to hold them not to be truthful
within the meaning of Section 35(2) of the Punjab Pre-emption Act, 1991.
Similarly, the limitation for such suits is one year and the learned Additional
District Judge has certainly erred in a manner so as to affect his jurisdiction
while holding that the suit filed about five months after the'sale was barred
by time.
6.
The Civil Revision accordingly is allowed. The judgment
and
decree dated 26.9.1994 of learned Additional District Judge, Chakwal is set
aside and the one passed by the learned trial Court on 31.10.1992 is restored.
The petitioner shall, if she has not already deposited the amount, make a
deposit of Rs. 28,000/-, as held by the learned trial Court, after adjustment of
any amount already deposited, in the trial Court on or before 30.11.2002. In
case she fails to make the said deposit her suit shall stand dismissed with
costs throughout. At the moment the parties are left to bear their own costs.
decree dated 26.9.1994 of learned Additional District Judge, Chakwal is set
aside and the one passed by the learned trial Court on 31.10.1992 is restored.
The petitioner shall, if she has not already deposited the amount, make a
deposit of Rs. 28,000/-, as held by the learned trial Court, after adjustment of
any amount already deposited, in the trial Court on or before 30.11.2002. In
case she fails to make the said deposit her suit shall stand dismissed with
costs throughout. At the moment the parties are left to bear their own costs.
(A.A) Revision accepted.
