MUHAMMAD BAKHSH vs FAIZ MUHAMMAD Ss — 2021 PLD 52 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD BAKHSH VS FAIZ MUHAMMAD 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.

MUHAMMAD BAKHSH vs FAIZ MUHAMMAD Ss — 2021 PLD 52 LAHORE-HIGH-COURT-LAHORE

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