' This petition assails judgments and decrees dated 6-9-2002 and 5-5-2003 passed by the learned Civil Judge and learned Additional District Judge, Pasrur, whereby suit and appeal of the petitioner were dismissed respectively.
2. Precisely, relevant facts are that petitioner filed a suit for possession through pre-emption against sale of land described in the plaint, effected through Mutation No.330 dated 14-4-1999 for an amount of Rs.1,75,000. She pleaded in the plaint that on gaining knowledge of sale, she immediately exclaimed her intention of ,preempting the same, as she had a superior right of pre- emption, then through a notice dated 1-7-1999 she performed "Talb-eIshhad" and thereafter by maintaining the suit, she fulfilled the requirement of ITalbe-Khasumat". Superior pre-emptive right was claimed by the petitioner being Shafi Khalit and asserted that the sale was kept in a guarded secret, which came to her knowledge through Noor Muhammad son of Nazar Muhammad on 14-4- 1999 at 6-00 p.m. When she was present in her house.
3. Respondent being defendant in the suit, contested it by filing his written statement, wherein he raised certain preliminary objections regarding lack of cause, of action in the plaintiff, suit being for partial pre-emption, incorrect valuation of the suit, waiver on her part and the suit being. Benami.
Controversial pleadings of the patties necessitated framing of issues and recording of evidence.
The learned trial Judge, who was seized of the matter, after doing the needful, dismissed the suit on 6-9-2002 holding that the petitioner could not prove performance of Talbs in accordance with law.
Petitioner aggrieved of the decision of the trial Court dated 6-9-2002 filed an appeal before the learned Additional District Judge, but remained unsuccessful as the same was dismissed vide judgment and decree dated 5-5-2003. Petitioner thereafter tiled the instant revision petition, which was admitted to regular, hearing and respondent having been served; has appeared through his counsel.
4. Learned counsel for the petitioner submitted that petitioner had proved performance of Talbs through positive evidence, but the two Courts below have erroneously returned findings against her while answering Issue No.2. He further contended that "Talb-e-Muwathibat" was proved to have been performed in the same Majlis where she gained knowledge of the sale and a pause for a while or so, does not extinguish her pre-emptive right. Similarly. He contended that performance of "Talb-e' Ishhad" was proved and dispatch of notice was not necessary in view of judgment in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Provice, Lahore (PLD 1994 SC 1). Learned counsel for the petitioner also relied on the judgments in the cases of Azim Khan v. Malik Mobeen Khan and others 2001 SCMR 34; Abdul Malik v. Muhammad Latif 1999 SCMR 717 and Muhammad Gul v. Muhammad Afzal 1999 SCMR 724.
5. Learned counsel appearing on behalf of the respondent refuted the arguments of the petitioner, supported the concurrent judgments and decrees of the two. Courts below and urged that the petitioner could not prove performance of Talbs in accordance with law and thus she extinguished her pre-emptive right, if any, in terms of section 13 of the Punjab Preemption Act, 1991, in support of this contention, he referred to the judgments in the cases of Dilmeer etc. v. Amir NLR 1996 Civil 627; Abdul Ghani v. Muhammad Latif PLD 2000 Lahore 428 and Ali Muhammad, etc. v. Abdul Mai id, etc. 2002 YLR 2487. He further contended that both the Courts below have returned concurrent findings of facts which are not open to interference in revisional jurisdiction, especially when none of them has neither misread nor non-read any part of the record. Learned counsel, for the respondent also urged that sale from the very day was within the knowledge of the petitioner, but in spite of it she filed the suit on the basis of self-concocted story of performance of Talbs, which is not only self- contradictory but is also not borne out of the record.
6. I have anxiously considered the respective arguments of the learned counsel of the parties and have examined the record, appended herewith. Petitioner in order to discharge onus of performance of Talbs has - produced three witnesses including herself as P.W.1. P.W.2 is Noor Ahmed, who stated that he informed the petitioner regarding sale and she on listening of tale started thinking and thereafter gave an impression that she will tell about her decision of filing per- emption suit. Similar is the statement of P.W.3 Muhammad Sharif. Both the witnesses produced by the petitioner have admitted in their cross-examinations that immediately after purchase of land defendant entered into possession of the land and sowed paddy crop, as the vendor had harvested the wheat crop earlier. P.W. 1 petitioner stated in her cross-examination that she is a widow lady and her children are minor and none of them is doing any business. She could not tell the date of gaining knowledge of sale and at the same time she could not mention the date of dispatch of notice. She admitted that she owns land adjoining to the land sold, besides admitting that she daily visits her fields. She alsci could not deny rather- admitted that respondent took over the possession of the land the day he purchased it.. Statement of all the . Three P.Ws., if read together, manifest that she was aware of -the sale, from the day it was made and. She gained knowledge of it on the A same day-Wizen the respondent took over the possession of the land but she did not perform "Talb-e-Muwathibat" instantly.
Her stance of gaining knowledge of sale 2-1/2 months after sanctioning of mutation appears to be afterthought just to bring the "Talb-e-Ishhad" within time limit prescribed by section 13 of the Pre- emption Act, 1991.
7. As regards performance of "Talbe-Ishhad" P.W.2 and P.W.3 have deposed that they alongwith petitioner went to her counsel who drafted the notice Exh.P.1, which was signed/thumb-marked by them, but none of the three witnesses has stated that the notice was dispatched to the respondent. Petitioner could not prove dispatch of notice Exh.P.1, its delivery or refusal by the respondent. She simply felt satisfied by producing a photocopy of the notice Exh.P.1, postal receipts Exh.P.6 and an on opened registered envelope as Mark-A. Neither the postman who went to deliver notice to the respondent was examined nor the registered envelope Mark-A was opened in Court and was not confronted to P.W.2 and P.W.3. Photocopy of the notice Exh.P.1 could not have been received in evidence in view of provisions of Article 77 of the Qanun-eShahadat Order, 1984 and the proper course was to open the envelope in presence of the postman and thereafter to .Confront the original notice to its marginal witness, but this was not done in the case in .Hand.
8. In view of the provisions of Article 75 Qanun-e-Shahadat Order, 1984 the notice of "Talk-e-Ishhad was to be proved by producing its original and if, had it been delivered to the respondent, it. Should have been got produced through notice to produce documents under Order XII, rule 8, C.P.C. If party in possession of the original, in spite of notice, does not produce it, the other party can prove document by permission of the Court, through secondary evidence in terms of Article 76 of the Qanun-e-Shahadat Order, 1984 but petitioner opted none of these courses and thus failed to prove not only the performance of "Talb-e-Ishhad" itself but. Also the notice, in this behalf. My this view gets strength from the judgments in the cases of Mst. Amir v. Soini 1997 MLD 2376; Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Fateh Muhammad and 2 others v. Gulsher 2000 CLC 409; Hayatullah Ian and others v. Jan Alam and others 2003 MLD 625 and Ghulam Abbas v. Manzoor Ahmed and another PLD 2004 Lahore 125. Thus it is clear that both the Courts below have rightly held that neither the performance of "Talb-e-Muwathibat" at the relevant time is proved nor service of notice of "Talb-e-Ishhad" is made out from the record.
9. Besides non-proof of notice of "Talb-e-Ishhad", its performance is also not proved. None of the witnesses of the petitioner has uttered a single wotd about performance of this Talb without which she cannot- succeed and will be deemed to have extinguished her right, if any. It is settled law that a plaintiff has to succeed at the strength of her own evidence and if case is not made out from her evidence, her suit must fail.
10. For what has been discussed above, it is obvious that both the Courts below have returned findings, which are -in consonance with the law and evidence on the file, which is not proved to have been Misread or non-read. Both the Courts below have not committed any illegality or irregularity, in absence of which, no interference in concurrent judgments is permissible in revisional jurisdiction of this Court. This revision petition has no merit in it and is accordingly dismissed with no order as to costs.