' Respondent Ghulam Rasool filed a suit for possession through pre-emption in order to pre-empt the land measuring 6 Kanals, 8 Marlas sold by Ghulam Nabi to the petitioners Muhammad Shafi and Muhammad Bashir. This transaction was initially given the colour of a 'Hiba' by the vendor and the vendees and decree dated 14-9-1988 was obtained. However, Mutation No. 307 was sanctioned on 16-8-1989 to incorporate the above referred transaction in Revenue Record. Respondent/pre- emptor claiming, in para.3 of the plaint, to have gained knowledge of the sale transaction at the time of Mutation No.307 dated 16-8-1989 pleaded to have exercised Talb-e-Muwathibat on the basis of superior right and thereafter Talb-eIshhad in presence of Muhammad Hussain (P.W.2) and Muhammad Ilyas (P.W.3).
2. Contesting written statement was submitted by the petitioners denying respondent's right to pre-empt the land and also challenging the 'maintainability of the suit mainly on the basis that Talbs had not been exercised. Learned trial Court framed nine issues. Evidence was recorded. The learned Civil Judge thereupon dismissed the suit of plaintiff pre-emptor/respondent through judgment and decree dated /6-2-1992. Respondent Ghulam Rasool thereupon filed an appeal which was accepted by the learned Additional District Judge, Gujranwala, who held that respondent was only required under section 36(2) of the Punjab Pre-emption Act, 1991 or Ordinance framed there-before to prove Talb-e-Ishhad through presenting two truthful ' witnesses. The learned Additional District Judge, Gujranwala thereupon set aside the judgment and decree of the learned Civil Judge and ,decreed the suit of the respondent. Hence The present civil revision.
3. The learned counsel for the parties stated that the only issue requiring consideration by this Court in this civil revision is Issue No.2 as to maintainability of the suit on the basis of exercise of right of Talbs by respondent. And that no other issue, fact or legal question remained in dispute at this stage.
4. Learned counsel for 'the petitioners read out the entire record to show that respondent-plaintiff had failed to exercise right of Talb-e-Muwathibat as well as Talbe-Ishhad and was, thus, not entitled to a decree.
' Contrarily, learned counsel for the respondent-pre-emptor supported the impugned judgment and decree of the learned Additional District Judge, Gujranwala.
5. I have considered the submissions of the learned counsel for the parties. Though initially this transaction was shown to be a 'Hiba' yet the learned counsel for the parties conceded that it was in fact the sale transaction and decree dated 14-9-1988 was obtained regarding transfer of the said land by Ghulam Nabi to the petitioner vendees. On the basis of this decree dated 14-9-1988, Mutation No.307 was sanctioned on 16-8-1989. The point of time for the sale transaction thus obviously got settled by submissions of the parties that this sale was executed between the parties on a date prior to 14-9-1988 but the decree was obtained by the vendor and the petitioner- vendees on 14-9-1988 to structure their transaction showing the same as 'Hiba' but obviously as found by the learned Courts below and as conceded by the learned counsel for the parties it was the sale transaction for which atleast the time of decree dated 14-9-1988 can be fixed as the beginning point of the sale. This sale was entered in Mutation No.307 on 16-8-1989. The respondent-plaintiff in para.3 of the plaint pleaded that it was on this date i.e. 16-8- 1989, when he gained knowledge of the sale transaction at the time of incorporation and sanctioning of Mutation No.307. He continued to assert that he thereupon exercised right of Talb- eMuwathibat and thereafter a few days, he exercised right of Talb-e-Ishhad in presence of Muhammad Hussain (P.W.2) and Muhammad Ilyas (P.W.3).
6. It is noteworthy that the pleadings of the respondent-plaintiff are deficient in the following statements:--
(i) He did not state that he was present at the time of 'Intekaal' on 16-8-1989 and he did not at all give the names of any of the persons present when the mutation was sanctioned, in order to substantiate his contention regarding acquisition of knowledge;
(ii) he did not state the names of any persons when he exercised right of Talb-e-Muwathibat; and
(iii) he did not give any date whatsoever or place or time when he exercised right of Talb-e-Ishhad in purported presence of Muhammad Hussain (P.W.2) and Muhammad Ilyas (P.W.3).
7. I do not disagree with the contention of the learned counsel for the respondent that this transaction was made prior to promulgation of Pre-emption Ordinance as well as Pre-emption Act respectively in 1990 and 1991, wherefor, the Statutory reqUirement for the respondent was only to prove exercise of right of Talb-e-Ishhad through presenting atleast two truthful witnesses and there was no Statutory requirement to prove Talb-e- Muwathibat. It has not been denied by the learned counsel for the respondent that exercise of right of Talb-e-Muwathibat was to be shown to have been done at a particular point of time within the period of limitation fixed therein. However, this case presents a peculiar narration of facts. Respondent particularly pleaded exercise of right of Talb-e-Muwathibat on 16-8-1989 when Mutation No.307 was sanctioned. The respondent-plaintiff then claimed to have proceeded "in a few days to serve notice of Talb-e-Ishhad in presence of P.W.2 and P.W.3". In his statement, respondent-plaintiff while appearing as P.W.4 only stated that he came to know of the transaction 1-1/2 years after the transaction and immediately upon gaining knowledge, he went to Muhammad Hussain (P.W.2) and Muhammad Ilyas (P.W.3) and they together asked petitioner-vendees to transfer the land to the respondent plaintiff upon receipt of the price. This deposition obviously contradicts the pleadings of the respondent-plaintiff himself as rai$cd in para.3 of the plaint wherein he specifically stated that he gained knowledge ol 16-8-1989.
As per this deposition, lie gained knowledge 1-1/2 years after the transaction. Interpreted in terms of this deposition, date of knowledge would ether be 13-3-1990 if taken from the date of decree i.e. 14- 9-1988 or 15-2-1991 if taken from the mutation date. The rescondentplaintiff failed to support his own ple,dings in his deposition.
8. As to the exercise of Talb-eIshhad, respondent-plaintiff had deposed in his statement as P.W.4 that it was a few days after the acquisition of knowledge (either on 13-3-1990 or 15-2-1991) when he took P.W.2 and P.W.3 with him to claim the land from the petitioners. He failed to give any particular date here as well. Furthermore, P.W.2 Muhammad Hussain purported to be a witness of Talb-e- Ishhad, deposed that it was 1-1/2 years ago when he and Muhammad Ilyas went with the respondent-plaintiff to exercise right of Talb-e-Ishhad. His statement was recorded on 8-1-1991. As per his statement date of exercise of right of Talb-e-Ishhad comes to 7-7-1989. Same statement was made by P.W.3.
9. Under these circumstances, the learned Additional District Judge not only misread the evidence but also committed material irregularity by not examining the case in proper perspective and by ignoring the material conflict of dates in this matter. This civil revision is therefore accepted. The impugned judgment and decree dated 17-5-1992 of the learned Additional District Judge, Gujranwala is set aside. The judgment and decree dated 26-2-1992 passed by the learned Civil Judge, Wazirabad is restored. There shall be no order as to costs.